VEERENDRA KR.GAUTAM Vs KARUNA NIDHAN UPADHYAY
Bench: FAKKIR MOHAMED IBRAHIM KALIFULLA,S.A. BOBDE
Case number: C.A. No.-003361-003361 / 2015
Diary number: 15221 / 2012
Advocates: RAJ SINGH RANA Vs
SANJAY KUMAR VISEN
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Reportable
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3361 OF 2015
Veerendra Kr. Gautam and others …Appellants
VERSUS
Karuna Nidhan Upadhyay and others …Respondents With
C.A. No. 3363/2015, C.A. No. 3364/2015, C.A. No. 3365/2015, C.A. No. 3366/2015, C.A. No. 3367/2015, C.A. No. 3368/2015, C.A. No. 3369/2015, C.A. No. 3370/2015, C.A. No. 3371/2015, C.A. No. 3372/2015, C.A. No. 3373/2015, C.A. No. 3374/2015, C.A. No. 3375/2015, C.A. No. 3376/2015, C.A. No. 3377/2015, C.A. No. 3378/2015, C.A. No. 3379/2015
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. These appeals are directed against the common judgment of
the Division Bench of the High of Allahabad dated 23.04.2012 in
Writ Application No.34198 of 2008 etc. batch, by which, the
Division Bench dealt with the challenge made to the selection
dated 15.05.2007, to the post of Principals in the Degree Colleges
in the State of Uttar Pradesh and the selection dated 30.06.2008
and 02.07.2008 to the post of Principals in different Post Graduate
Colleges also in the State of Uttar Pradesh. While dealing with the
said challenges made, the Division Bench ultimately set aside the
select list dated 30.06.2008 and 02.07.2008 as well as the select
C.A. NO.3361 of 2015 with conntd. matters Page 1 of 52
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list dated 15.05.2007 in respect of the Principals to P.G Colleges
and degree colleges respectively by allowing W.P.No.34198 of
2008 along with connected writ petitions of Group-I and writ
petition No.44358 of 2007. By the very same impugned judgment
the Division Bench also dealt with another writ petition in
W.P.No.70062 of 2006, by which, some of the selected candidates
applied for Mandamus to give effect to the recommendations
dated 15.05.2007 and simultaneously prayed for quashing the
order of the State Government dated 12.06.2007, by which the
State Government appointed the Divisional Commissioner,
Allahabad to hold the preliminary enquiry regarding allegations
against the selection dated 15.05.2007. In the very same writ
petition, prayer was also made for quashing the order dated
16.06.2007 of the Divisional Commissioner by which certain
information was called for from the Uttar Pradesh Higher
Education Services Commission, Director of Education, who also
issued a direction not to give any posting in pursuance of the
select list dated 15.05.2007. 2. Brief facts which are required to be stated are that there
were many number of post graduate and degree colleges situated
in the State of U.P. affiliated to the University Governed by U.P.
State Universities Act, 1973. The selection and appointment in
the post graduate and degree colleges were earlier made by the
respective colleges in accordance with the provisions of the U.P.
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State Universities Act, 1973 (hereinafter called the ‘1973 Act’). As
there were numerous complaints regarding the selection of
candidates for both the post of Teachers as well as the Principals in
the post graduate colleges as well as the degree colleges, the
State Government enacted U.P. Higher Education Services
Commission Act, 1980 (hereinafter called the 1980 Act) to
establish a Service Commission for the selection of Teachers which
includes the post of Principals for appointment to the colleges
affiliated to or recognized by the University under the 1973 Act.
The Commission consisted of a Chairman and not less than two
and not more than six members to be appointed by the State
Government. The management of the colleges were expected to
intimate the existing as well as future vacancies in the course of
the ensuing academic year to the Director of Education and the
Director in turn was required to notify the vacancies to the
Commission. The Commission thereafter undertakes the process
of selection in accordance with the Act, Rules and Regulations. At
this juncture, it is necessary to note the relevant provisions of the
1980 Act as well as the relevant provisions in the Regulations and
the Rules formulated under the provision of the 1980 Act. 3. Under Section 4(1) of 1980 Act it is stipulated that the
Commission shall consist of a Chairman and not less than two and
not more than six other members to be appointed by the State
Government. Sub Section (2) of Section 4 prescribes the
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qualification for appointment as a Chairman. What is relevant for
our purpose is Section (4)(2)(e) as per which, a person will be
held to be qualified to be appointed as Chairman, if he is in the
opinion of the State Government an eminent person having made
valuable contribution in the field of education. Sub-Section (2-a) of
Section 4 prescribes the qualification for appointment of members.
Here again, under Section 4(2-a)(g) it is stipulated that a person
shall be qualified for appointment as a member if in the opinion of
the State Government he is an eminent person having made
valuable contribution in the field of education. Section 8 of the
Act prescribes that no act or proceeding of the Commission shall
be deemed to be invalid merely on the ground of any defect or
irregularity in such act or proceeding not affecting the substance.
It also stipulates that such invalidity will not take place on the
ground of any vacancy or defect in the constitution of the
Commission or any defect or irregularity in the appointment of a
person acting as a member thereof. The powers and duties of the
Commission have been set out in Section 11. Under Section 11(b),
the Commission is empowered to conduct examinations, where
consider necessary, hold interviews and make selection of
candidates for being appointed as such Teachers. Under Section
12(4) it is stipulated that the manner of selection of persons for
appointment to the post of a Teacher of a College shall be, as may
be determined by the Regulations. Under Section 31, the
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Commission has been empowered, with the previous approval of
the State Government, to make Regulations, among other things
for conducting examinations, holding interviews and for laying
down the procedure to be followed by the Commission for
discharging its duties and performing its functions under the Act. 4. By virtue of the powers under Section 31 of the 1980 Act,
the Uttar Pradesh Higher Education Services Commission
(Procedure for Selection of Teachers) Regulations 1983
(hereinafter called the 1983 Regulations) came to be framed and
was notified on 20.08.1983. Regulation 2(h) defines a ‘Teacher’ to
mean a person employed for imparting instructions in a college
and includes a Principal. The qualification, experience etc., for
appointment as a Teacher has been set out in Regulation 3, as per
which, the minimum qualification for appointment of a Teacher
shall be as given in the Statutes referred to in Section 50 of the
Uttar Pradesh State Universities Act, 1973. Regulation 6 is an
important provision which requires to be considered in detail in
these appeals and therefore the whole of Regulation 6 is
extracted, which reads as under: “6. Procedure for selection.— (1) The
Commission shall scrutinize the applications and call for interview such number of candidates as it may consider proper : Provided that, if on account of excess number of applications or for any other reasons, the Commission considers it desirable to limit the number of candidates to be called for interview, it may—
(i) in the case of the post of a teacher, not being the post of principal, either hold preliminary
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screening on the basis of academic record or hold a competitive examination, so however that no competitive examination shall be held before the recruitment year 1984.
(ii) in the case of the post of the Principal, hold preliminary screening on the basis of academic record, teaching the administrative experience ;
Provided further that the number of candidates to be called for interview for any category of post shall, as far as possible, be between three to eight times the vacancies as the Commission may consider proper.
(2) The Commission shall interview the candidates in accordance with the criteria, minimum standards and guidelines set out by it. The Commission may, if it considers necessary, hold practical test also as part of interview.
(3) No candidate shall be recommended unless at least one expert concurs with the selection.
(4) The Commission shall prepare two separate lists of selected candidates, one of the women candidates only and the other a ‘general list’ of all the candidates (including women candidates included in the first list). The names of women candidates who specifically opt not to be posted in women’s colleges shall not be included in the list of women candidates. The names of the candidates in the two lists shall be arranged in order of merit and the number of names shall not be more than three times the number of vacancies or the number of vacancies plus four whichever is more.”
5. Under the Uttar Pradesh Higher Education Services
Commission (Procedure and Conduct of Business) Regulations
1983, provision of Constitution of Interview Board, Constitution of
panel of experts in the Interview Board are all set out. These are
the Statutory provisions which are required to be noted while
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dealing with these appeals where a challenge to the Division
Bench order is made. 6. The Division Bench having considered the various
submissions of the respective parties formulated the following
issues for consideration which are as under: “1. Whether the writ petition No. 34198 of
2008, Dr. Karuna Nidhan and another Vs. State of U.P. and others is liable to be dismissed since the petitioner's earlier two writ petitions were dismissed as withdrawn on 3.7.2008 without obtaining any leave to file a fresh writ petition?
2. Whether the appointment of Members of U.P. Higher Education Service Commission respondents No. 4 to 13 in writ petition No. 34198 of 2008 were invalid and the said appointments are liable to be set aside?
3. Whether the members of selection Board should be higher in rank and stature to the candidate whom they are going to interview?
4. Whether U.P. Higher Education Services Commission has framed appropriate guidelines providing for criteria, minimum standard, for conducting selection as provided by Regulation 6(2) of Regulations 1983?
5. Whether the Commission has truthfully followed the screening guidelines fixed by it for calling the candidates to appear in the interview for the selection?
6. Whether the Commission having fixed the ratio of candidates to be called i.e. 1:8 with regard to advertisement No. 39 vide its meeting dated 13.5.2008 was justified in calling the candidates in excess of ratio 1:8?
7. Whether several candidates who had been called for interview and selected did not fulfill the minimum qualification as required?
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8. Whether five women candidates, who had applied for being considered against the male category posts were illegally shifted to the post meant for female category permitting five candidates to be included in the select list, who could not have been otherwise included in the select list against the Principal of male category?
9. Whether the procedure adopted by the
Commission in conducting selection of Principals of post graduate and degree colleges was fair, reasonable and in accordance with the provisions of the Act, Regulations and the Guidelines?
10. Whether against the post of Principal which is single post in an institution, horizontal reservation for physically handicapped and dependent of freedom fighter is applicable and the selection made of reserved categories candidates namely; dependent of freedom fighter and physically handicapped is valid who otherwise could not have been included in the select list?
11. Whether the petitioners who had participated in the interview are estopped by their conduct and cannot be allowed to challenge the selection on the post of Principal declared on 15.5.2007 and 30.6.2008/2.7.2008?
12. Whether the State Government had power and jurisdiction to direct for inquiry regarding process of selection conducted by the Higher Education Service Commission in exercise of its power either under section 6 of the Act or in exercise of the executive power as provided under the Constitution?
13. To what relief the petitioners are entitled in these writ petitions?”
7. On issue No.1 the Division Bench took the view that the writ
petition was maintainable, that the writ petitioners were entitled to
challenge the ultimate selection made in the select list dated
15.05.2007, 30.06.2008 and 02.07.2008. As far as the challenge
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made based on invalid appointment of the Members of the
Commission, who were arrayed as respondent Nos.4 to 9 in the
writ petition, the Division Bench found that those respondents had
since subsequently ceased to be members of the Commission,
held that there was no scope to examine the validity of their
appointment as members of the Commission, but applying the de
facto doctrine, proceeded to hold that strict analysis of the
selection made by those members was necessitated. 8. On the above said basis, the Division Bench proceeded to
deal with the other issues formulated by it. The Division Bench in
its ultimate analysis held that there were serious lapses in the
procedure followed by the Commission in making the selection for
the post of Principals of the Post Graduate as well as Degree
colleges in as much as the Regulation 6 of the 1983 Regulation
was not strictly followed and that the necessary guidelines under
the said Regulation were not formulated both for screening the
candidates as well as in the matter of holding the interview, apart
from serious violation in the matter of calling of the candidates for
interview beyond the prescribed limit as provided under the
Regulation 6. It was on the above said basis, the Division Bench
ultimately, set aside the entire selection and directed the State
Government to redo the selection afresh. 9. Before proceeding further it will be necessary to make
reference to an earlier judgment of this Court in Civil Appeal
No.2351 of 2011 along with connected civil appeals and transfer
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petitions reported in State of Uttar Pradesh and others Vs.
Bharat Singh and others - (2011) 4 SCC 120 wherein, this
very selection came to be considered under different
circumstances. In the said appeal the challenge was to a
judgment of the Allahabad High Court dated 07.08.2008, by which
the High Court directed the Director, Higher Education to give
effect to the recommendation made by the U.P. Higher Education
Service Commission for the post of Principals in aided / affiliated
degree colleges. The State Government was aggrieved in as much
as the State Government had earlier directed for holding an
enquiry into the misfeasance in the matter of selection made by
the Commission, which was the subject matter of challenge before
the High Court. This Court while holding that the selection was for
the post of Principal to different colleges and since the selection
was being made for a single post, Rule of Reservation will not
apply, that the order dated 12.06.2007 issued by the Government
appointing the Divisional Commissioner, Allahabad as an Enquiry
Officer to hold an enquiry into the validity of selection process and
the report submitted by the said Enquiry Officer, shall stand
quashed and the order of the High Court to that effect was
affirmed. However, this Court took note of the pending writ
petitions in the High Court wherein, challenge to the selection was
substantially raised and held that the High Court was free to
examine all issues regarding the selection process in question
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including the validity of the procedure followed in making the
same. Significantly, this Court took note of the undertaking made
by the selected candidates during the pendency of the appeal who
were appointed to the post of Principals pursuant to the interim
orders of this Court to be permitted to be impleaded as parties in
the writ petitions where the selection was under challenge. The
interim order dated 20.11.2008, stipulated that in the event of the
selection being set aside, all those candidates will stand reverted
to the post of Readers and that whatever additional payments
received by them shall be recoverable from them. Further in the
said judgment dated 08.03.2011, it was observed that in the writ
petitions filed by the aggrieved candidates before the High Court,
all aspects of the matter is open for examination, in which,
everyone connected with the selection process will have an
opportunity to place his / her point of view. 10. Keeping the above judgment dated 08.03.2011, passed in
C.A.No.2351 of 2011, we proceeded with the hearing of these
appeals. We heard the submissions of Mr. S. Gurukrishna Kumar,
Mr. Amarendra Saran and Mr. Rajiv Dutta, learned senior counsels
and Mr. Sanjay Mani Tripathi, Mr. Vijay Kumar, Mr. Manoj K. Mishra,
Mr. Sumit Kumar, Mr. Makarand D. Adkar, Mr. Yatendra Sharma for
the appellants, Mr. Jaideep Gupta, learned senior counsel for the
Commission, Mr. C. U. Singh learned senior counsel for
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respondents 1 and 2 and Mr. Jitendra Mohan Sharma, learned
senior counsel for the intervenors. 11. Mr. S. Gurukrishna Kumar, in his submissions after referring
to the relevant facts and the regulations submitted that the
Regulations gave the discretion to the Commission whether to
limit the number of candidates or not, the ratio prescribed in the
Regulations under the proviso to Regulation 6(1) viz., 3 to 8 times
of the candidates is only a guideline and not a Rule and, therefore,
not to be mandatorily applied for making the selection, that
exceeding a ratio by itself cannot be held to be arbitrary, that this
was not a case where no guidelines were in place and that under
Regulation 6(1), the Commission had every power to limit or not
to limit the number of applicants. The learned senior counsel
submitted that the Commission gave ample reasons for the ratio it
adopted in making the selection and that by making reference to
some of the selected candidates alone, the Division Bench ought
not to have interfered with the whole selection. The learned
senior counsel ultimately submitted that the withdrawal of the
earlier writ petitions barred the filing of the present writ petition
when such withdrawal was without any reservation, that High
Court having written a specific finding that the action taken by the
members of the Commission 4 to 9 were protected by de facto
doctrine ought not to have struck down the selection, that there
was nothing alleged against the appellants as regards their merits
C.A. NO.3361 of 2015 with conntd. matters Page 12 of 52
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or demerits and therefore their selection should not have been
interfered with. In support of his submissions, the learned senior
counsel relied upon the decisions reported in Gokaraju
Rangaraju v. State of Andhra Pradesh - 1981 (3) SCC 132,
Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. - 1981
(1) SCC 722, Dr. Keshav Ram Pal, Reader and Head of
Sanskrit Department and Offg. Principal, Lajpat Rai
Post-Graduate College, Sahibabad, Distt. Ghaziabad, U.P. v.
U.P. Higher Education Services Commission, Allahabad &
Ors. - 1986 (1) SCC 671, State of Madhya Pradesh v.
Narmada Bachao Andolan and Anr. - 2011 (7) SCC 639,
Ashok Kumar Yadav and Ors. v. State of Haryana & Ors.-
1985 (4) SCC 417 and Bharat Singh (supra). 12. Mr. Rajiv Dutta, learned senior counsel appearing for the
appellants in C.A.No.3361 of 2015 in his submissions contended
that the High Court had gone beyond the pleadings, the writ
petitioners having participated fully were not entitled to challenge
the process subsequently and that the appellants having been
appointed in 2008 and working till date and there being no
allegation of any adverse report against them, their appointments
should not be interfered. The learned senior counsel relied upon
Madan Lal & Ors. v. State of J & K and Ors. -1995 (3) SCC
486 and N.T. Devin Katti and Ors. v. Karnataka Public
C.A. NO.3361 of 2015 with conntd. matters Page 13 of 52
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Service Commission & Ors. - 1990 (3) SCC 157 in support of
his submissions. 13. Shri Amarendra Saran, learned senior counsel appearing for
the appellants in C.A.No.3366 of 2015 by making specific
reference to the details of each of the appellants, sought to
contend that the High Court factually erred in holding that those
appellants did not satisfy the prescribed qualifications such as
experience, possession of necessary qualification etc., and
therefore the judgment is liable to be set aside. The learned
senior counsel submitted that each and every finding in respect of
those appellants was erroneous and against the material facts,
that the finding of the High Court that the candidate did not have
the requisite qualification was not a correct finding, that the
finding that more candidates were called is based on a misreading
of the Regulation 6(1)(ii) and the further finding that the
Commission members were lower in rank and status was not
tenable and that the finding on the principle of estoppel was
contrary to law. 14. The learned senior counsel representing the other appellants
adopted the arguments of Mr. S. Gurukrishna Kumar and Mr.
Amarendra Saran. 15. Mr. Makarand D. Adkar, learned counsel for the appellant in
C.A.3363 of 2015 submitted that the said appellant top the list in
women’s list, the appellant was posted in women’s college
exclusively meant for women and therefore the writ petitioners
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have no locus to challenge the selection of the said appellant. In
other respects the learned counsel adopted the arguments of the
other senior counsel. 16. Mr. Jaideep Gupta, learned senior counsel for the
Commission submitted that two groups of petitioners made a
challenge and that one group went to Court at the time of
advertisement but withdrew without reserving any liberty but later
filed substantive writ petition after the interview result, where
grounds were raised even relating to the process of selection.
According to the learned senior counsel the other group never
raised a challenge to the advertisement and came after the
interview. According to learned senior counsel, principle of
estoppel operate differently in that those who participated in the
interview are estopped from raising a challenge which is covered
by the decision of this Court reported in Madan Lal (supra). As
far as those who filed the writ petition and withdrew the same
without liberty, the Sarguja Transport Service, v. State
Transport Appellate Tribunal, Gwalior and Ors. - AIR 1987 SC
88 principle will apply and that the reasons for the withdrawal of
the writ petition were irrelevant and they were not entitled to
challenge the selection. The learned senior counsel submitted that
the Rules only provided for interview and there was no written test
prescribed and therefore where the selection is based on academic
qualification and interview, there is no limit for prescription of
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marks for interview. The learned senior counsel argued that the
screening guidelines were issued as early as on 06.11.2006 both
for degree colleges as well as post graduate colleges and that for
post graduate colleges by subsequent proceedings of the
Commission dated 10.04.2008, 13.05.2008 and 22.05.2008,
guidelines were altered and cut-off marks were fixed as per the
guidelines and necessary resolutions were passed for the ultimate
cut-off mark of 34.1. The learned senior counsel would contend
that the Commission taking into account the total number of
applications received decided to call all the candidates for
interview irrespective of the cut-off marks as it had possessed
necessary powers under Regulation 6. The learned senior counsel
submitted that the decision was not with any ill-motive, in order to
hold that the whole selection should be set aside. On Regulation
6(2) the learned senior counsel submitted that from a reading it
cannot be said that without any guidelines U. P. Higher Education
Services Commission cannot carry on with the interview, that
where there are criteria, it should be followed and that guideline
have been framed as early as on 06.10.1983, which have been
duly followed. The learned senior counsel submitted that the said
1983 guidelines were also accepted by this Court in the judgment
reported in Dr. Keshav Ram Pal (supra). The learned senior
counsel further contended that those guidelines were sufficient for
the Commission to make the selection in the interview. As regards
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the composition of members, the learned senior counsel
contended that the High Court having applied the de facto
doctrine, there was no scope for the High Court to interfere with
the selection. 17. As against the above submissions, Mr. C. U. Singh, learned
senior counsel appearing for the contesting private respondents, in
his submissions, while meeting the arguments on estoppel,
contended that there were 16 writ petitions in which the Division
Bench passed the impugned judgment and therefore, the
withdrawal of two earlier writ petitions will not have any effect on
this judgment. The learned senior counsel also submitted that in
any event, in Bharat Singh’s case (supra) while issuing
directions for the disposal of the writ petitions, this Court observed
that opportunities should be extended to all concerned and
therefore the present case is completely different one and not
covered by any of the judgments passed earlier in order to apply
the principle of estoppel. The learned senior counsel also
submitted that the withdrawal of the earlier writ petition was not
with an intent of forum shopping since that writ petition was filed
at the stage when interview was not held and since by the time
the writ petition was taken up, the whole interview was over, the
writ petition was withdrawn and fresh writ petition was filed
challenging the whole selection. The learned senior counsel then
contended that the High Court after finding that respondents 4 to
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9 had already ceased to be the members of the Commissions,
there was no scope to consider the prayer for quo warranto and
consequently applying the de facto doctrine made a deeper
scrutiny of the whole selection and gave valid reasons for setting
aside the selection. The learned senior counsel pointed out that
the grounds raised in the writ of quo warranto were very
formidable grounds in as much as the appointment of respondents
4 to 9 were not in accordance with Section 4(2)(e) or 4(2-a)(g) of
the 1980 Act. The learned senior counsel therefore contended that
the course adopted by the High Court in having made a deeper
scrutiny and its findings on each one of the issues, to hold the
selection invalid was well justified. The learned senior counsel
relied upon the decision reported in State of Punjab Vs. Salil
Sabhlok and others - (2013) 5 SCC 1. 18. Mr. Jitendra Mohan Sharma, learned senior counsel who
appeared for the petitioner in a writ petition before the High Court
and who has filed I.A.No.15/2013 in C.A.3361 of 2015 for
intervention, submitted that when the whole process of selection
was challenged, the consideration of individual cases is of no
consequence. The learned senior counsel pointed out that when
the term of invalid members viz., respondents 4 to 9 before the
High Court was over, the High Court was not in a position to deal
with the issue of quo warranto and consequently, it made a
thorough examination of the process of selection as to its validity
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and found the same to be wholly invalid for setting aside the
same. The learned senior counsel placed reliance reported in
Union of India & Ors. v. O. Chakradhar - (2002) 3 SCC 146,
Krishan Yadav (supra) and Bharat Singh (supra) in support of
his submissions. 19. Having heard the respective counsel and having bestowed
our serious consideration to various submissions and having gone
through the impugned judgment, we feel that it will be appropriate
to note the sum and substance of various submissions and find out
whether there is any scope for interference with the judgment
impugned in this case. The submissions of the learned counsel for
the appellants can be noted as under: (i) Since some of the contesting private
respondents had moved the High Court earlier by
way of a writ petition raising certain challenges to
the very same selection and since those writ
petitions were withdrawn without any reservation or
liberty asked for, the subsequent writ petitions
raising a challenge to the very same selection was
hit by the principle of Estoppel. Reliance was placed
upon the judgment reported in Sarguja Transport
Services (supra). (ii) When once the High Court decided to apply
the de facto doctrine on finding that respondents 4
to 9 ceased to hold office as members of the
Commission, it ought not to have interfered with the
selection, by applying the principles laid down in the
judgment reported in Gokaraju Rangaraju
(supra).
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(iii) The Commission gave reasons for the ratio
it adopted while making the selection, that is
between 06.11.2006 and 22.05.2008 viz., on
06.11.2006, 10.04.2008, 13.05.2008 and
22.05.2008, the Commission fixed the norms after
the advertisements, reframed the guidelines for the
PG college selection, the cutoff index was fixed
which was subsequently altered, all of which were
done well before the interview was held. (iv)The selection made by the commission was
in accordance with Regulation 6 of the 1983
Regulations, that there were guidelines both for
initial screening as well as for evaluating the merits
at the time of interview. (v) As far as the individual cases who are
the appellants in C.A.3363 of 2015 against whom
specific findings have been rendered by the High
Court to hold that their selection was bad, the
question for consideration is whether such finding of
facts are true or not. (vi)Even if the individual cases where the
Division Bench held that they were not qualified, but
yet selected and assuming such conclusion drawn by
the Division Bench was correct, that will not have
any effect on the entire selection. (vii)On the issue pertaining to reservation, it
was pointed out that in the earlier round i.e. in the
judgment reported in Bharat Singh (supra), this
Court ruled that since the posts of Principal are
single post, rule of reservation will not apply.
Therefore, when no reservation was possible, if any
of the candidate has been appointed on the ground
of reservation, the same will not survive, but
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applying the Rule of Reservation, four candidates got
the benefit, of the four candidates one candidate did
not join, while one joined and left and one other
person had resigned and one is going to retire and
therefore on that score, there was no scope for
interference. 20. As far as the first submission is concerned, the same is
raised based on the doctrine of estoppel. The contention was that
earlier prior to the holding of the interview, two writ petitions were
filed viz., W.P.Nos.26501 and 27600 of 2008, which were simply
withdrawn on 03.07.2008. It is therefore contended that when the
very same selection was the subject matter of challenge in those
writ petitions and the writ petitions were withdrawn without any
reservation and without asking for any liberty to raise a challenge
at a later point of time, the writ petitioners were estopped from
filing the present writ petition viz., W.P.No.34198 of 2008. The
said contention was rejected by the High Court by holding that the
earlier writ petition was filed before the interview commenced and
that when subsequently, after the interview, select list for the post
of Principals of post graduate Colleges was declared on
30.06.2008 and 02.07.2008, the petitioners choose to withdraw
those writ petitions and thereafter file the present W.P.No.34198 of
2008. The Division Bench therefore held that the withdrawal of
the earlier writ petition without any reservation did not cause any
prejudice in as much as at the time when the earlier writ petition
was filed, the select list was not announced and therefore when at
C.A. NO.3361 of 2015 with conntd. matters Page 21 of 52
Page 22
the stage prior to the interview, those writ petitions were filed
there was nothing wrong in the writ petitioners moving the High
Court subsequent to the declaration of the results by raising a
challenge to the select list. We do not find anything wrong with
such a conclusion arrived at by the Division Bench of the High
Court. That apart, in the case on hand, as rightly pointed out by
Mr. C. U. Singh learned senior counsel for the contesting private
respondents, there were as many as 17 writ petitions, which were
pending before the High Court along with W.P.34198 of 2008.
Therefore withdrawal of the earlier two petitions by the writ
petitioner in W.P.No.34198 of 2008 could not have in any manner
prevented the High Court from examining the correctness of the
challenge made in the other writ petitions. Further, in Bharat
Singh’s case (supra), when this Court in its order dated
08.03.2011, passed in C.A.2351 of 2011, observed that in the writ
petitions filed by the aggrieved candidates before the High Court
all aspects of the matter shall be open for examination, in which
everyone connected with the selection process will have an
opportunity to place his/her point of view, we do not find any
serious impediment in the case of the writ petitioner in
W.P.No.34198 of 2008 to voice his grievance along with other writ
petitioners which was virtually permitted by this Court earlier. 21. Reliance was placed on behalf of the appellants in the
decision reported in Ramesh Chandra Sankla Vs. Vikram
C.A. NO.3361 of 2015 with conntd. matters Page 22 of 52
Page 23
Cement & Ors.- 2008 14 SCC 58, paragraph 61 was relied upon
which reads as under:
“61. From the above case law, it is clear that
it is open to the petitioner to withdraw a
petition filed by him. Normally, a Court of Law
would not prevent him from withdrawing his
petition. But if such withdrawal is without the
leave of the Court, it would mean that the
petitioner is not interested in prosecuting or
continuing the proceedings and he abandons his
claim. In such cases, obviously, public
policy requires that he should not start fresh
round of litigation and the Court will not allow
him to re-agitate the claim which he himself
had given up earlier.”
22. Reliance was placed upon a recent decision of this Court
reported in Pradeep Kumar Rai and others Vs. Dinesh Kumar
Pandey and others - (2015) 11 SCC 493, paragraph 17 was
relied upon to contend that the candidates having participated in
the process of interview and not challenged it till the results were
declared cannot be allowed to approbate and reprobate and on
that principle, the challenge was rejected. When we read
paragraph 17 we find that the appellants in that case participated
in the process of interview and challenged the results after a gap
of four months from the date of interview and the declaration of
results. This Court therefore held that such an indifferent attitude
C.A. NO.3361 of 2015 with conntd. matters Page 23 of 52
Page 24
displayed in making the challenge disentitle them to seek for any
relief. The said case is not comparable at all to the case on hand,
where before the interview was conducted there was a challenge
and during the pendency of the said challenge, the interview was
held and ultimately results were announced. Thereafter, the
challenge was made on very many substantial grounds such as
invalid members constituted the Commission, several procedural
lapses in applying Regulation 6 of 1983 Regulations and serious
allegation of invalid candidates having been permitted to
participate in the interview who were found to be ultimately
selected and appointed as Principals. Having regard to such
extreme serious allegations of malpractice in the matter of
selection, there is no scope to apply the said decisions to the facts
of this case. 23. On behalf of the respondents reliance was placed upon a
decision of this Court reported in G.N.Nayak Vs. Goa University
and others - (2002) 2 SCC 712 on the question of estoppel. In
an identical situation, this Court held that when the cause of
action were different, the withdrawal of earlier writ petition
without liberty to file a fresh application, will not have any impact
in making the challenge when the subsequent challenge was to
the selection ultimately held while the earlier challenge was on the
basis of an apprehended bias. We find the said line of reasoning
fully supported the case of the writ petitioners. Even in the case
C.A. NO.3361 of 2015 with conntd. matters Page 24 of 52
Page 25
on hand, earlier when writ petitioners filed the writ petition, the
same was at a stage when the interview was about to be held. By
the time when the writ petition was pending, since the interview
was held and the results were ultimately published, the withdrawal
of the earlier writ petition without liberty and a fresh challenge
made to the ultimate selection on various grounds cannot be held
to have disentitled the writ petitioners to raise the challenge. 24. It was contended on behalf of the appellants that the
withdrawal of the earlier writ petition by one of the writ petitioners
would disentitle and estop the petitioners from making a challenge
to the selection made in the interview. We have extensively
discussed the said issue and have held how in the facts of this
case such an abstract proposition of law cannot be applied. We
therefore do not find any merit in the said submission on the
ground of principle of estoppel. We therefore reject the said
submission outright. 25. The next submission of the appellants was that once the
High Court decided to apply the de facto doctrine, on finding that
the members of the Commission viz., the respondents 4 to 9 in
the writ petition ceased to hold office, it ought not to have
interfered with the selection and in support of the said submission,
reliance was placed upon Gokaraju Rangaraju (supra).
Paragraph 4 of the said judgment is relevant where the principle
has been set out which reads as under: “4. We are unable to agree with the
submissions of the learned counsel for the
C.A. NO.3361 of 2015 with conntd. matters Page 25 of 52
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appellants. The doctrine is now well established that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure" (Pulin Behari v. King Emperor). As one of us had occasion to point out earlier "the doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine" (vide Immedisetti Ramakrishnaiah Sons Vs. State of A.P.)”
26. It is no doubt well settled that the acts of the officers de
facto performed by them within the scope of their assumed
authority in the interest of the public or the third persons and not
for their own benefits are generally held valid and binding as if
they were the acts of the officers de jure. A reading of the said
paragraph does not give an omnibus authority even while applying
de facto doctrine to hold that every illegal acts or acts performed
which smacks of very many illegalities and incongruities should be
merely ignored and validated. It has to be kept in mind that even
while applying the de facto doctrine whether such acts performed
were aimed at the prevention of public and private mischief and
for the protection of public and private interest. The doctrine is
intended to prevent invalidation of Acts, such as appointments, on
C.A. NO.3361 of 2015 with conntd. matters Page 26 of 52
Page 27
the sole ground that they were performed without de jure
authority. Therefore, keeping the well thought out principles set
down in the said judgment in mind when we examine the
approach of the Division Bench we find that the Division Bench
having noted that the respondents 4 to 9 in the writ petition
ceased to hold office had to necessarily not deal with the challenge
made to their appointment for issuance of quo warranto. It also
rightly applied the de facto doctrine but the approach of the
Division Bench in stating that even while applying the de facto
doctrine, the selection made required deeper scrutiny cannot be
held to be improper. It must be stated that the allegations as
against the appointment of respondents 4 to 9 as members of the
Commission were not without any basis. The Division Bench also
noted the fact that the details of respondents 4 to 9 disclosed that
except respondent No.9, the other respondents viz., 4 to 8 were
working as Readers in different post graduate and degree colleges
in the State of U.P. The scale of pay drawn by them was far less
than the scale of pay of Principal, for which post, the selection
process was initiated. It was also noted that one of the members
viz., one Shri Ramveer Yadav was working as Reader in Narayan
College, Firozabad, was also an applicant for the post of Principal
pursuant to the Advertisement No.36 of 2003. The Division Bench
has also noted that all the above members came to be appointed
on the basis that they satisfied the qualification viz., “an eminent
C.A. NO.3361 of 2015 with conntd. matters Page 27 of 52
Page 28
person having made valuable contribution in the field of
education”. The Division Bench though did not want to proceed
with the writ of quo warranto yet found that when such challenge
is made with reference to the appointment of respondents 4 to 9
as members of the Commission, had substantial basis in making
the challenge. Therefore, though, it had to apply the de facto
doctrine, thought it fit to make a strict scrutiny of the entirety of
the selection procedure. 27. Reliance was then placed upon decision of this Court
reported in Madan Lal (supra). Paragraph 10 was relied upon in
support of the submissions, wherein, this Court held that when the
interview committee consisted of a sitting High Court Judge, to
judge the relative merits of the candidates, who were orally
interviewed, based on the guidelines laid down by the relevant
rules governing such interviews, the assessment on merit as made
by such an expert Committee cannot be brought in challenge only
on the ground that the assessment was not proper or justified.
Even going by the said expressions used by this Court, the said
paragraph need not be elaborated further to compare the facts of
this case, where the Division Bench was not inclined to examine
the validity of the appointment of the Chairman and members of
the Commission who ceased to exist at the time when the writ
petitions were heard. Therefore, the Division Bench rightly chose
to make a deeper scrutiny of the manner of selection made and
C.A. NO.3361 of 2015 with conntd. matters Page 28 of 52
Page 29
found very many illegalities in making the selection. In such
circumstances, the ratio laid down in the said judgment in the
background of facts, i.e., the Committee was headed by a Sitting
High Court Judge, can have no application to the facts of this case. 28. We are in full agreement with the said approach of the
Division Bench and, therefore, we hold that even while applying
the de facto doctrine, the Division Bench was well justified in
proceeding to examine the correctness of the selection made by
making a deeper scrutiny and, therefore, we are not able to
appreciate the said submission that once de facto doctrine was
applied the selection should have been upheld. The said
submission also stands rejected. 29. When we come to the third submission, the contention of
the appellants was that while making the process of screening, as
stipulated under Regulation 6(1) of the 1983 Regulations, the
Commission duly followed the required norms depending upon the
selection it wanted to make for the number of existing vacancies
and the anticipated vacancies by taking appropriate decisions as
between 06.11.2006 and 22.05.2008 when the Commission fixed
the norms while permitting all the candidates to be interviewed
and by making appropriate changes in the cut-off index to enable
all the candidates to participate in the interview. The challenge to
such a course adopted by the Commission was on the ground that
the last of the advertisement was in Advertisement No.39 issued
in February, 2005 and the corrigendum issued on 23.02.2006, the
C.A. NO.3361 of 2015 with conntd. matters Page 29 of 52
Page 30
last day for submission of the application was 03.04.2006. It was
therefore contended that the Rules as existed on the last date of
the submission of the application have to be followed and any
change of the recruitment process or rules of recruitment after the
cut-off date was not permissible. Any change in the screening
process or guidelines without any valid reason can always be
interfered with on being substantiated. With that basic principle in
mind when we consider the submission, we find that the Division
Bench was able to note that the details of the candidates for the
post of Principal in Post graduate colleges were called in excess of
the ratio of 1:8 as provided in Regulation 6(1) which resulted in
allowing 18 candidates in the female category and 95 candidates
in the male category to participate in the interview. It also noted
that such permission granted by the Commission ultimately
resulted in around 15 candidates who were otherwise not entitled
to participate in the interview, participated and got selected. 30. In this context when we refer to Regulation 6(1), the
substantive part of the said regulation viz., 6(1) empowers the
Commission to scrutinise the applications and call for interview
such number of candidates, as it may consider proper. The
proviso, however, empowers the Commission to limit the number
of candidates to be called for the interview if there were excess
number of applications or for any other reasons. For the
expression “for any other reasons” must always be appropriately
C.A. NO.3361 of 2015 with conntd. matters Page 30 of 52
Page 31
substantiated, if on that ground the limiting of the number of
candidates was resorted to by the Commission. Under proviso (ii)
in the case of the Principal, it is specifically stipulated that
preliminary screening on the basis of academic record, teaching
and administrative experience to be carried out and that as far as
possible, the ratio between 3 to 8 times the vacancies can be
determined by the Commission, which it finds appropriate. A
reading of the Regulation 6(1) on the whole thus shows that the
Commission has been invested with substantive power to call for
interview such number of candidates as it may consider proper.
Therefore, it cannot be held that it should always restrict it to the
minimum 3 to 8 times the vacancies, as the Commission may
consider proper. 31. In the case on hand, initially, the Commission decided to
limit the number of candidates by fixing the norms. The
Commission by fixing the cut-off mark as 34.9 for female
candidates 35.1 for male candidates proceeded to process the
applications. But it came to light that subsequently the index
norms were altered and ultimately it decided to call all the
candidates. Such decisions were taken on 06.11.2006,
10.04.2008, 13.04.2008 and 22.05.2008. When we take into
account the above facts, we find that while initially the
Commission decided to limit the number of candidate by fixing
index norms for female and male candidates, and proceeded to
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Page 32
hold the interview, based on such norms, the question for
consideration is whether the Commission could have resorted to
variation of such index norms and ultimately allow all the
candidates to participate in the selection. Such variation in the
norms was resorted to by the Commission and the ultimate
selection came to be made and it was alleged that such variation
was adopted by the Commission with a view to favour certain
candidates who otherwise did not come within the zone of
consideration for participation in the interview. Such an allegation
is definitely a very serious allegation and therefore it cannot be
held that such allegations are to be simply brushed aside by
accepting the stand of the Commission that ultimately the ratio
was far below 1:8 or within the said range. We are concerned
with the decision of the Commission which it took at the initial
stages before the commencement of the interview, though not
before the last date of submission of the application viz.,
03.04.2006. Though the Commission has been invested with
ample powers under Regulation 6, in the matter of calling of the
candidates for interview and also limit such calling of the
candidates, the Commission is expected to display its honest
approach in its dealings. The Commission cannot follow certain
practices, which gives scope for serious criticisms especially where
it relates to the matter of selection for very responsible post of
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Principal to various aided and affiliated colleges of the State
University. 32. It will also be worthwhile to make a reference to a recent
decision of this Court reported in Salil Sabhlok (supra). This
Court while considering the competence and validity of
appointment of a Chairpersons of the Public Service Commission
of the State of Punjab made a reference to two earlier decisions of
this Court viz., Ashok Kumar Yadav (supra) and In R/o Dr.
Ram Ashray Yadav, Chairman, Bihar Public Service
Commission - (2000) 4 SCC 309 respectively. The extracted part
of the above two referred to decisions can be usefully quoted
which are as under:
“94. In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 this Court looked at the appointment of the Chairperson and members of the Public Service Commission from two different perspectives: firstly, from the perspective of the requirement to have able administrators in the country and secondly from the perspective of the requirement of the institution as such. In regard to the first requirement, it was said:
“It is absolutely essential that the best and finest talent should be drawn in the administration and administrative services must be composed of men who are honest, upright and independent and who are not swayed by the political winds blowing in the country. The selection of candidates for the administrative services must therefore be made strictly on merits, keeping in view various factors which go to make up a strong, efficient and people oriented
C.A. NO.3361 of 2015 with conntd. matters Page 33 of 52
Page 34
administrator. This can be achieved only if the Chairman and members of the Public Service Commission are eminent men possessing a high degree of calibre, competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them.”
In regard to the second requirement, it was said:
“We would therefore like to strongly impress upon every State Government to take care to see that its Public Service Commission is manned by competent, honest and independent persons of outstanding ability and high reputation who command the confidence of the people and who would not allow themselves to be deflected by any extraneous considerations from discharging their duty of making selections strictly on merit.”
***
42. In R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission (supra), Dr. A.S. Anand, C.J. speaking for a three Judge Bench, cautioned:
“The credibility of the institution of a Public Service Commission is founded upon the faith of the common man in its proper functioning. The faith would be eroded and confidence destroyed if it appears that the Chairman or the members of the Commission act subjectively and not objectively or that their actions are suspect. Society expects honesty, integrity and complete objectivity from the Chairman and members of the Commission. The Commission must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that society does not lose confidence in the Commission. The high constitutional trustees, like the
C.A. NO.3361 of 2015 with conntd. matters Page 34 of 52
Page 35
Chairman and members of the Public Service Commission must forever remain vigilant and conscious of these necessary adjuncts.”
33. After noting the above statement of law and oft quoted
principles in para 99 it has been held as under:
“99. While it is difficult to summarize the indicators laid down by this Court, it is possible to say that the two most important requirements are that personally the Chairperson of the Public Service Commission should be beyond reproach and his or her appointment should inspire confidence among the people in the institution. The first ‘quality’ can be ascertained through a meaningful deliberative process, while the second ‘quality’ can be determined by taking into account the constitutional, functional and institutional requirements necessary for the appointment.”
34. We are referring to the above passages reported in the said
decisions only to highlight as to how the Division Bench in the
impugned judgment was justified in having frowned upon the
nature of appointments of the members and the Chairman of the
Commission at whose instance the selection came to be made and
though the Division Bench could not consider the writ of quo
warranto filed against those members who were arrayed as
respondents 4 to 9 in the writ petitions as they ceased to be
members by that time when the writ petitions were taken up for
hearing and when it applied the de facto doctrine, the Division
Bench was obliged to make a deeper scrutiny of the whole issue
C.A. NO.3361 of 2015 with conntd. matters Page 35 of 52
Page 36
for reaching its own conclusions. We find full justification in the
said approach made by the Division Bench in the impugned
judgment. 35. Therefore, when the Division Bench was able to note serious
allegations as against the respondents 4 to 9 who were inducted
as members of the Commission and whose qualification to be
appointed as members was seriously put to challenge and further
in the course of making the selection, it was pointed out that the
Commission did not adopt a definite course in making the
selection, instead, it varied its norms on different dates, certainly,
the conclusion of the Division Bench in having frowned upon such
approach made by the Commission cannot be found fault with. 36. On behalf of the appellants, reliance was placed upon the
Four Judges Bench decision of this Court reported in Ashok
Kumar Yadav (supra). Specific reliance was placed upon
paragraph No.21 of the said judgment wherein, this Court
considered the arguments made against a selection, which was
upheld by a Division Bench of the High Court. The submission was
on the ground that as many as 1300 and more candidates
representing more than 20 times the number of available
vacancies were called for interview. So far as the said contention
was concerned, this Court held that even if more than the required
number of candidates were called, that by itself will not vitiate the
selection, in as much as something more than merely calling and
C.A. NO.3361 of 2015 with conntd. matters Page 36 of 52
Page 37
unduly large number of candidates for interview in order to
invalidate the interview and selections made. 37. So far as the said principle is concerned, in the case on
hand, it is not merely a violation of the proportion of the
candidates called for the interview vis-à-vis the number of posts,
which were to be filed up. The Division Bench has noted, which
we have also seen, where we have found that the Commission
even while exercising its power under Regulation 6(1) was not
consistent in the matter of calling the candidates for the interview.
For very valid reasons, stated by the Division Bench, we have
found that for reasons best known to it, the Commission was
varying the cut-off index and in that process it came to light that
ineligible candidates numbering more than 100 were allowed to
participate and amongst whom 15 got selected for the post of
Principal. That apart, the Division Bench has also pointed out
various other discrepancies in the selection to show that
everything was wrong in the selection made especially when it
declined to examine the plea of quo warranto on the ground by
applying the de facto doctrine. Therefore the said decision does
not anyway apply to the facts of this case. 38. We are, therefore, of the view that the Division Bench was
well justified in holding that the changing of the norms while
applying Regulation 6(1) for the initial screening thrown
considerable doubt about the genuineness in the selection process
adopted by the Commission. In the said circumstance the
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Page 38
conclusion of the Division Bench that when greater faith and trust
was invested with the Commission and when the Commission
breached its own criteria and thereby acted contrary to the
standards laid by it, which resulted in an arbitrary selection made
by it has to be held as well justified. We are, therefore, not able
to appreciate the submission of the learned senior counsel for the
appellants and the same is also rejected. 39. The next submission of the learned senior counsel was that
the selection made by the Commission is in accordance with
Regulation 6, that there were guidelines both for initial screening
as well as for evaluating the merits at the time of interview. In
support of the said submission both on behalf of the Commission
as well as the appellants it was pointed out that the guideline as
required under Regulation 6(2) was formulated as early as on
06.10.1983 and that based on the said guideline, the selection
process was made. The said guideline was in fact placed before
the Division Bench and the Division Bench has extracted the
guidelines dated 06.10.1983 which is to the following effect: “Each of the Members of an Interview Board
irrespective of whether he is a Member of the commission of an Expert shall award marks in writing to each candidate out of a maximum of 50 marks and as per the following scheme of grading and evaluation:-
Grade Numerical range of grader Percent of marks Maks cut of 50
1. Outstanding 85% and above 43 and above 2. Excellent 75%-85% 38-42 3. Very Good 65%-75% 33-37 4. Good 55%-65% 28-32
C.A. NO.3361 of 2015 with conntd. matters Page 38 of 52
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5. Fair 45%-55% 23-27 6. Poor Below 45% 22 or less
The award of 22 marks of less to candidate by an Expert shall imply that the said Expert does not consider the candidate settled for appointment. In order for a candidate to be considered any further for merit ranking, it would be necessary that at least one of the participating Experts should have awarded 23 marks or more to the candidate.
The awards given by the Members of the Interview Board shall then be pooled together to determine the overall merit individual evaluation salary of the …..........will be done as per the following table, so as to ensure parity between the block of Members of the Interview Board who are also Members of the Commission on the one hand and the block of Experts on the other.
Table: Scaling Factor
Composition of the Interview Board Member of the Commission; Expert
Scaling factor for The marks awarded by the block consisting of Members of the Commission
Total of the mau. The marks awarded by the block Experts
Marks
1. 3M+3E 1 1 300 2. 3M+2E 1 1.5 300 3. 2M+3E 1.5 1 300 4. 2M+2E 1.5 1.5 300
40. After referring to the said guideline, the Division Bench has
examined whether the guidelines did satisfy the requirement as
stipulated in Regulation 6(2). Regulation 6(2) mentions that the
Commission should interview the candidates in accordance with
the criteria, minimum standards and the guidelines set out by it
and if it consider necessary can hold practical test also as part of
interview. We are not concerned with the practical test part of the
Regulation 6(2). We are only concerned with the requirement of
C.A. NO.3361 of 2015 with conntd. matters Page 39 of 52
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prescription of criteria, minimum standards and guidelines. After
referring to the guidelines dated 06.10.1983, the Division Bench
has found that, the said guidelines merely provided for grading of
the candidates as Outstanding, Excellent, Very Good, Good, Fair
and Poor and therefore found that what was the criteria that is to
be applied, the minimum standard to be prescribed have not been
spelt out in the guidelines dated 06.10.1983. 41. In this context, the Division Bench has referred to the
decision of this Court in Kiran Gupta and others Vs. State of
U.P. and others - (2000) 7 SCC 719, wherein, the selection
made to the post of Principal of Secondary Schools in the State of
U.P. were under challenge, and one of the grounds of challenge
was about the laying down of the guidelines of the Commission on
which ground the selection was sought to be invalidated. This
Court, while dealing with the said challenge, has noted the
following features in paragraph 29. Paragraph 29 as extracted by
the Division Bench can be noted again, which reads as under: “29. In the guidelines framed by the Commission the following aspects are to be kept in mind while evaluating a candidate :
"Madhyamik Shiksha Ayog- The candidates called for interview have to be adjudged by members of the Board for 75 Marks, keeping in view the following factors:
1. Personality. 2. Knowledge of the subject. 3. Knowledge of current ideas and problems of
the educational work diagnostic attitude towards them.
4. General Knowledge. 5. Administrative ability regarding school
management.
C.A. NO.3361 of 2015 with conntd. matters Page 40 of 52
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6. Self expressive and impressive views. 7. Achievement in curricular activities of the
regional and State levels.”
42. After having prescribed such various factors with reference
to which the merits of a candidate was to be tested in the
interview, this Court found that though maximum marks for each
of the item were not allocated, it held that the members of the
Commission who interviewed the candidates awarded marks in
lump individually after evaluating the candidates on the basis of
the afore mentioned factors. It was based on the said
consideration, the Court ultimately held that there was no illegality
in the procedure of overall evaluating of the candidates fixing
marks for each of the items noted above. The said case is of no
comparison to the case on hand. In the case on hand, the
contention was that even though under Regulation 6(2) it was
specifically stipulated that interview will be held based on the
guidelines which should specifically state as to how consideration
should be made while holding the interview, no guidelines were
formulated and thereby leaving it open for the members of the
Commission to arbitrarily award marks while making the selection
and thereby provided scope for arbitrariness. 43. This Court after noting the specific criteria prescribed in the
guidelines for evaluating the merits of a candidate held that since
the guidelines provided for sufficient criteria to assess the merit of
a candidate the selection made based on such guidelines cannot
C.A. NO.3361 of 2015 with conntd. matters Page 41 of 52
Page 42
be interfered with. The Division Bench having noted the above
ruling of this Court, therefore, held that what is prescribed in the
guideline dated 06.10.1983, would at best only enable the
Interviewing Committee to grade the candidates based on their
performance in the interview and that it did not provide sufficient
guidelines as was required to be provided for under Regulation
6(2). As far as the guideline dated 06.10.1983 was concerned, as
was noted by the Division Bench as well as by us, it merely
showed as to what will be the effect of the percentage of marks
that were to be allotted to each individual candidates. Unlike the
decision referred to above where each of several factors such as
personality, aptitude etc., have been specifically prescribed in the
guideline, there was no such specific factors determined by way of
guideline as was required to be done by the Commission under
Regulation 6(2). In such circumstances, the said decision is of no
assistance to the appellants but on the contrary it is in favour of
the respondents. We are therefore in full agreement with the
above said conclusion of the Division Bench and the said
submission of the learned senior counsel for the appellants as well
as that of the Commission stands rejected. 44. The next submission of the appellants was that the Division
Bench committed a serious factual error in respect of certain
candidates with reference to whom it gave a finding that they
were permitted to participate in the interview even though they
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did not fulfill the minimum qualification and on that ground, held
that their selection was unjustified. Such cases were related to Dr.
Ramesh Chand Pathak, Dr. Shashi Misra, Dr. Ram Avtar Singh, Dr.
Ikbal Habib, Dr. Udyan Misra and Dr. Suresh Jain. 45. Mr. Amarendra Saran learned senior counsel appearing for
those appellants took pains to draw our attention to various
documents to show that the finding of fact reached by the Division
Bench was wrong and that going by the details furnished by the
respective candidates, they did fulfill the minimum qualification as
well as experience and therefore the finding to the contrary
reached by the Division Bench should be set aside. However
forceful the contention may be, when we refer to the Division
Bench judgment on issue No.7 which pertains to the above
submissions, we find that the Division Bench after noting the
qualification and experience prescribed in the advertisement
examined the case of each of the above referred to candidates and
has rendered a factual finding to the effect that they did not fulfill
the minimum qualification nor the experience. In as much as such
a factual finding has been rendered by the Division Bench after
detailed reference to the facts placed before it, we are not inclined
to look into any of the documents which were placed before us at
the instance of those appellants in order to do the very same
exercise as regards the facts relating to those candidates for
C.A. NO.3361 of 2015 with conntd. matters Page 43 of 52
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reaching a different conclusion. Therefore, the said submission is
also rejected. 46. In fact, while examining the said issue No.7, the Division
Bench has also referred to the case of one Phool Chand Singh with
reference to whom, it has found that he was involved in a serious
criminal case in case No.217/1989, wherein, charges under
Sections 147, 148, 149 and 302 I.P.C. have been framed and that
even the said person was selected. It has made a detailed
reference to the criminal case filed against the said Phool Chand
Singh to state that the Commission failed to act appropriately in
holding the selection and thereby gave scope for reaching the
conclusion that the whole selection was seriously infected and
consequently, the whole selection was liable to be set aside. 47. It was then contended that even if the individual cases
where the Division Bench held that they were not qualified, yet
allowed to participate and got selected, based on such conclusion,
the entire selection should not have been interfered with. In so
far as the said submission is concerned, in the first instance, it
must be noted that after finding the serious flaw in the matter of
selection made by the Commission, where the Division Bench
noted serious allegations as against those who were inducted as
members of the Commission who ceased to hold office by the time
the writ petitions came to be heard and thereby the Division Bench
was obliged to apply the de facto doctrine and consider the whole
selection with little more care and caution, in which process, the
C.A. NO.3361 of 2015 with conntd. matters Page 44 of 52
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Division Bench was able to find out that the relevant regulation
viz., regulation 6 was seriously breached, in as much, as there
were serious flaws in the preliminary screening as well as in
permitting ineligible candidates to participate apart from lack of
necessary guidelines as prescribed under the Regulation 6(2) for
holding the interview in order to assess the merits of the
candidates and therefore as a step further, the Division Bench took
note of certain instances where it pointed out how the various
factors noted by it did show the serious lacuna in the overall
selection made by the Commission. Therefore, the individual cases
cannot be isolated to state that setting aside of the selection
should be restricted to only those individual cases and the entirety
of the selection cannot be affected. We are not able to
countenance such a submission put forth on behalf of the
appellants and the same stands rejected. 48. On behalf of the contesting respondents, reliance was placed
upon the decision of this Court reported in Satpal and others Vs.
State of Haryana and others- (1995) Supp 1 SCC 206,
paragraph 9 is relevant for our purpose, the relevant part of it
reads as under: “9. We would like to make it clear that we
have limited our consideration to the procedure adopted at the pre-selection stage and have not thought it necessary to examine the procedure at the post-selection stage, once we hold that the entire selection process was tainted, we are not able to uphold the submission of the learned counsel for the appellants that since the appellants had received training and had passed
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the examination, they should be protected.……… We think that once the process of selection is found to be tainted, whatever had flowed consequent thereto must also fall along with the process of selection. We, therefore, see no merit in this plea.”
The above referred to principle laid down by this Court fully
supports the stand of the respondents and also in tune with what
we have held in this judgment. 49. In this context, it will be worthwhile to refer to the decisions
relied upon by Mr. Jitendra Mohan Sharma, learned senior counsel
who appeared for the intervenors viz., the decisions reported in O.
Chakradhar (supra) and Krishan Yadav (supra). The above
decisions fully support the stand of the private respondents that
when the whole process of selection is challenged, individual cases
are of no consequence. 50. We also find full support to our conclusions when we deal
with the submission of Mr. Saran and Mr. Krishnakumar in
contending that merely because selection relating to some of the
candidates were tainted the whole of the selection should not be
upset. In this context, the reliance placed upon the decision
reported in O. Chakradhar (supra) by Mr. Jitender Mohan
Sharma, learned senior counsel for the intervenor is well founded.
Paragraph 12 of the said decision can be usefully referred to which
reads as under: “12. As per the report of the CBI whole
selection smacks of mala fide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets
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while in the custody of Chairman, in holding typing test, in interview and in the end while preparing final result. In such circumstances it may not be possible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so inter-mixed with the whole process of the selection that it becomes impossible to sort out the right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is could such selection be acted upon in the matter of public employment? We are therefore of the view that it is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale widespread and all pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise but it is difficult to separate the cases of some of the candidates from the rest even if there may be some. The decision in the case of Krishna Yadav (supra) applies to the facts of the present case. The Railway Board's decision to cancel the selection cannot be faulted with. The appeal therefore deserve to be allowed.”
51. A reference to the said paragraph amply demonstrate in a
case of this nature, it will be difficult to identify such of those
candidates whose selection can be upheld and deal with the rest
differently. 52. To the very same effect is the decision reported Krishan
Yadav (supra), paragraph 20 is relevant, which reads as under :
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Page 48
“20. In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as "fraud unravels everything". To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors.”
53. Therefore, by applying the said principle, we do not find any
scope for interfering with the decision of the Division Bench. 54. One other submission made was that on the issue of
reservation. In spite of a ruling of this Court in Bharat Singh’s
case reported in Bharat Singh (supra) some candidates were
selected based on reservation and in that respect only four such
candidates came to be selected and even in respect of the said
four candidates, one did not join, one joined and left, one resigned
and another person is going to retire soon and consequently on
that ground the selection need not be interfered with. As was
noted by us, in the earlier paragraph it is not that single instance
which weighed with the Division Bench to interfere with the
selection. The Division Bench after finding serious flaw in the
whole of the selection process found that there was serious breach
of the regulations governing the selection process and
consequently set aside the whole selection. In that process, the
Division Bench also found that in spite of clear dictum of this Court
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in Bharat Singh’s case, the Commission applied the rule of
reservation and quoted those instances while setting aside the
selection. Therefore, the non-joining or resignation of some of the
candidates or the likelihood of the retirement of one other
candidate will be of no consequence when the whole process of
selection was affected by serious illegalities. Therefore, the said
submission also does not merit any consideration and stands
rejected. 55. Reliance was placed upon the decision reported in N.T.
Devin Katti (supra) in particular paragraph 15, where this Court
even after finding that the selection made for the post of
Tahsildars was liable to be set aside, ultimately was not inclined to
terminate the services instead allowed the appointees to continue
in service and also directed the State Government to create
supernumerary post of Tahsildars for appointing the appellants in
that case. In that case also by way of an interim order, during the
pendency of the appeal, the appointment orders containing
specific term that the appointment should be subject to the result
of the writ petition, filed by the appellants therein. We must state
that the said case is not comparable to the facts of this case,
wherein, the number of appointments are more apart from the
fact that the appointments were allowed to be made by specific
order dated 20.04.2008 by which, it was directed that the selected
candidates should execute an undertaking that in the event of
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they loosing the battle, they will stand reverted to the post of
Readers and that they also undertook to pay back the difference in
salary. 56. Before concluding, it is necessary to note that when in the
earlier round of litigation, dealt with by this Court in C.A.2351 of
2011, initially an interim order came to be passed on 20.11.2008,
by which, the selected candidates were directed to be appointed,
subject to filing of an undertaking into this Court within one month
from that date and the undertaking was to the effect that in the
event if they lose the battle, they will be automatically reverted as
Readers and the difference of salary that would be taken as a
Principal should be recovered and paid back to the petitioners viz.,
the State Government. In the final order passed by this Court on
08.03.2011, this Court has noted in paragraph 11 that the said
interim order was complied with and based on the undertaking, all
the selected candidates were duly appointed subject to the
outcome of the said appeal. Finally, on 08.03.2011, while
disposing of the said appeal, the said interim order was allowed to
be continued till the writ petitions are disposed of by the High
Court. When these appeals were moved at the S.L.P. stage, while
issuing notice by order 10.05.2012, pending further orders of this
Court, the operation of the impugned judgment and order was
directed to be stayed. The interim order was subsequently
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continued by order dated 31.03.2015. The last para of the
judgment of the Division Bench is as follows: “In result, all the writ petitions are decided in
following manner:-
(i) Writ Petition Nos.70062 of 2006 and
29524 of 2007 are dismissed.
(ii) Writ Petition Nos.34198 of 2008 and other
writ petitions of group-1 are allowed. The select
lists dated 30.6.2008 and 2.7.2008 are set
aside. The selected candidates shall take steps
in compliance of their undertaking given before
the apex Court in Civil Appeal No. 2351 of 2011
and other connected appeals in accordance with
law.
(iii) Writ petition No. 44358 of 2007 is
allowed. The select list dated 15.5.2007 is set
aside. The selected candidates shall take steps
in compliance of their undertaking given before
the apex Court in respective Civil Appeals.
(iv) Writ petition No. 38714 of 2003 and
other writ petitions of group-3 are allowed in
view of the judgment of the apex Court in Civil
appeal No. 2352 of 2011 and other connected
appeals dated 8.3.2011 in State of U.P. Vs.
Bharat Singh and others.
(v) The U.P. Higher Education Service
Commission shall consider and frame
appropriate guidelines for conduct of interview
for selection on the post of Principal of
Postgraduate/Degree Colleges in accordance
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with law as mandated by Regulation 6(2) of the
1983 Regulations and further take early steps
for filling the vacant posts of Principal of
Postgraduate/Degree Colleges in accordance
with law. Parties shall bear their own costs.”
57. We fully affirm the above directions of the Division Bench
and the appeals stand dismissed.
….………………………………………...J. [Fakkir Mohamed Ibrahim Kalifulla]
….………………………………………...J. [S.A. Bobde]
New Delhi; July 15, 2016
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