Dr. Karuna Nidhan Upadhya & ... vs State Of U.P. Thru' Secy. Higher ...

Hon'ble Mrs. Sunita Agarwal,J.

(Delivered by Hon'ble Ashok Bhushan, J.) These writ petitions relate to selection on the post of Principals in post graduate and degree colleges in the state of U.P. The writ petitions can be divided in following five groups.

(1)The writ petitions challenging the selection dated 30.6.2008 and 2.7.2008 on the post of Principal in different post graduate colleges in the State of U.P. leading writ petition of which group is writ petition No. 34198 of 2008, Dr. Karuna Nidhan Upadhya and another Vs. State of U.P. and others.

(2)The writ petition challenging the selection dated 15.5.2007 on the post of Principal in degree colleges in the State of U.P. This group has only one writ petition being writ petition No. 44358 of 2007, Dr. (Mrs.) Noopur Sharan and another Vs. State of U.P.

(3)The writ petitions challenging the reservation for Scheduled Castes, Scheduled Tribes and other backward classes on the post of Principals in post graduate colleges and degree colleges as contained in advertisement Nos. 33,34,35 and 36, issued by U.P. Higher Education Services Commission, leading writ petition no. of which is writ petition No 38714 of 2003 Dr. (Smt.) Shikha Chaturvedi Vs. U.P. Higher Education Services Commission and others.

(4)This group has only one writ petition praying for a mandamus directing the Higher Education Service Commission to make selection on the post of Principal in degree colleges/ post graduate colleges by applying the provisions of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other backward classes) Act, 1994 being writ petition No. 70062 of 2006 Dr. Vinod Kumar Gupta Vs. State Of U.P. And Others.

(5)This group has only one writ petition filed by selected candidates to the post of Principals of degree colleges vide the select list dated 15.5.2007 praying for mandamus to give effect to the recommendations dated 15.5.2007 and also praying for a writ of certiorari quashing order of the State Government dated 12.6.2007 by which the State Government had appointed the Divisional Commissioner, Allahabad to hold preliminary inquiry regarding allegations against the selection dated 15.5.2007 as well as praying for quashing the order dated 16.6.2007 of Divisional Commissioner by which certain informations were called from the U.P. Higher Education Services Commission and Director of Education was directed not to give any posting in pursuance of the select list dated 15.5.2007 being writ petition No. 29524 of 2007, Bharat Singh & Others Vs. State Of U.P. Thru' Principal Secretary Higher Edu. & Others.

Background facts giving rise to all these writ petitions are; there are large number of post graduate and degree colleges situate in State of U.P. affiliated to a university governed by U.P. State Universities Act, 1973 (hereinafter referred to as '1973 Act')(There are post graduate and degree colleges which are exclusively maintained by the State Government which institutions are not subject matter of dispute in these writ petitions). The selection and appointment in the post graduate and degree colleges were being made by the committee of management of respective colleges in accordance with the provisions of 1973 Act and the First Statute of the respective universities. The State Government had been receiving complaints regarding favouritism in the selection of candidates. U.P. Higher Education Services Commission Act,1980 was enacted to establish a service commission for the selection of teachers for appointment to the colleges affiliated to or recognised with the University and the matters connected therewith or incidental thereto. The Commission consists of a Chairman and not less than two and not more than six members to be appointed by the State Government. The management was required to intimate the existing vacancies and vacancies likely to occur during the course of ensuing academic year to the Director and the Director in turn was required to notify the vacancies to the Commission and the Commission thereafter was to undertake the process of selection in accordance with the Act, Rules and Regulations. The advertisement was issued by the U.P. Higher Education Services Commission being advertisement Nos. 33,34,35 and 36 dated 29.5.2003 advertising several vacancies of Principal of post graduate colleges (male), Principal of post graduate colleges (female), Principal degree colleges (male), Principals degree colleges (Female). The advertisement also mentioned about the post reserved for Scheduled Castes, Scheduled Tribes and Other backward class. The reservation for physically handicapped category, dependent of freedom fighter and ex-service men as per Rules was also mentioned in the advertisement. The writ petition being writ petition No. 38714 of 2003, Dr. (Smt.) Shikha Chaturvedi Vs. U.P. Higher Education Service Commission and other writ petitions as mentioned in Group-3 were filed challenging the aforesaid advertisement on different grounds including the Government Order providing for filling backlog vacancies of reserved category candidates. In writ petition No. 38714 of 2003, an interim order was passed by this Court on 1.9.2003 directing that the post of Principal in post graduate colleges and degree colleges in the U.P. should be treated as non reserved posts and selection should be held purely on merit on the said posts till further orders.

Interim orders were also passed to the same effect in writ petition No. 41345 of 2003 and 42992 of 2003 belonging to the Group-3. U.P. Higher Education Services Commission issued advertisement No. 39 dated 24.2.2005 advertising 69 posts of Principals post graduate colleges (male), 18 posts for Principals post graduate college(female), 42 posts of Principal degree colleges (male) and 11 posts for Principals degree colleges (female). The last date for receipt of application was 26.3.2005. The advertisement did not contain any stipulation regarding any kind of reservation. A corrigendum dated 23.2.2006 was issued by the Higher Education Service Commission extending the last date as 3.4.2006 and by which corrigendum the number of posts were changed as under:

81 posts of Principal post graduate college (male), 17 posts for Principal post graduate college(female), 47 posts of Principal degree colleges (male) and 12 posts for Principal degree colleges (female).

The petitioner Karuna Nidhan in writ petition No. 34198 sent a detailed representation to the Hon'ble Governor dated 10.1.2008 pointing out various irregularities and illegalities and favouritism which is being committed by the U.P. Higher Education Services Commission in conducting the selection on the post of Principals. Suggestions regarding laying down appropriate guidelines for conducting the interview and for ensuring transparency in the selection were made.

Against the post of Principals degree colleges, 564 candidates submitted their applications. All the candidates who applied against the post of Degree Colleges were called to appear without resorting to any screening which screening was normally adopted to call candidates in the ratio of 3 to 8 to the number of vacancies. The interview for the post of Principals of degree colleges was held from 14.12.2006 to 23.1.2007. U.P. Higher Education Services Commission declared the result on 15.5.2007. The list of selected candidates was declared separately with regard to 47 posts of Principals (male) and 11 posts of Principals (female). The State Government received several complaints against selection dated 15.5.2007. The complaints contained serious allegations against the conduct of selection by the Commission. The complaints were made that majority of the selected candidates belong to two specific communities. Out of 58 total posts, 38 candidates belonging to two communities were selected by manipulation. The complaint stated that Chairman and Members of the Commission are Readers of degree colleges and selection by such body of members for the post of principals of graduate colleges raises serious question about the whole process. The State Government passed an order dated 12.6.2007 for holding a preliminary inquiry on the above mentioned complaints by the Divisional Commissioner Allahabad, who was directed to submit preliminary inquiry report within 15 days. The Divisional Commissioner issued letter dated 16.6.2007 to the Chairman of U.P. Higher Education Services Commission asking him to provide various informations and details including norms of screening and marks allocated to different candidates. The Commissioner also endorsed the letter to the Director of Higher Education asking him not to issue posting orders till further orders of the Government, during the pendency of the inquiry Dr. Bharat Singh and five others, who were selected candidates as per select list dated 15.5.2007, filed the writ petition 29524 of 2007 in this Court praying for quashing the order dated 12.6.2007 as well as the order dated 16.6.2007. A mandamus was also prayed for commanding the respondent no. 3 to give effect to the recommendation dated 15.5.2007. An interim order was passed by Division Bench dated 13.7.2007 in the aforesaid writ petition staying the order dated 16.6.2007 and directing the Director of Education to issue appointment letter to the candidates within three weeks which was made subject to decision of the writ petition. The State of U.P. filed Special Leave to Appeal (Civil) No. 14057 of 2007, State of U.P. Vs. Bharat Singh and others, in which initially interim order was granted by the apex Court staying the order of the High Court dated 13.7.2007. Subsequently vide order dated 12.2.2008 the apex Court decided the aforesaid Special Leave to appeal (Civil) directing the High Court to dispose of the writ petition No. 29524 of 2007 and further it was directed that the interim order granted earlier by the apex Court should continue till the writ petitions are disposed of. The High Court vide order dated 7.8.2008 allowed the writ petition No. 29524 of 2007 Bharat Singh Vs. State of U.P. and others quashing the order dated 12.6.2007 of the State Government, directing preliminary inquiry and the letter dated 16.6.2007 of the Divisional Commissioner. A mandamus was also issued to the Director Higher Education to give effect to the recommendation dated 15.5.2007. Against the order dated 7.8.2008 Special Leave Petition was filed by the State of U.P., Director of Education and Commissioner Allahabad Division in the apex Court. The State Government vide order dated 22.8.2007 appointed six members of U.P. Higher Education Services Commission in exercise of its power under section 4(2) (g) of the Act. A meeting dated 10.4.2008 of the Commission was held in which guidelines for screening were approved superseding the earlier guidelines in reference to advertisement No. 39. Another meeting of the Commission was held on 13.5.2008 resolving to call 8 candidates against one vacancy of Principal Post Graduate Colleges male and female for interview and fixing cut of marks for Principal post graduate colleges female as 34.9 and for Principal post graduate colleges for male was 35.1. The interview for the post of Principals post graduate colleges was conducted from 22.6.2008 to 28.6.2008 and the select list was declared on 30.6.2008. By subsequent order dated 2.7.2008 the select list was modified. The petitioner Karuna Nidhan Upadhya had filed writ petition No. 26501 of 2008 on 28.5.2008 before the start of interview of Principals post graduate colleges and Dr. Ramashraya Singh had also filed writ petition No. 27600 of 2008 on 3.6.2008 raising various objections with regard to selection process of Principal of post graduate colleges. The aforesaid writ petitions however, were got dismissed as withdrawn on 3.7.2008 after the result was declared on 30.6.2008 and 2.7.2008. The writ petition No. 34198 of 2008 was filed on 15.7.2008 and other writ petitions of Group-1 were filed challenging the selection dated 30.6.2008 and 2.7.2008 on the post of Principal post graduate colleges on various grounds.

The Writ Petition No.34198 of 2008; Dr. Karuna Nidhan Upadhya and another vs. State of U.P. and others is being treated as leading writ petition in this bunch of writ petitions and reference to the pleadings in Writ Petition No.34198 of 2008 shall suffice to decide all the writ petitions. Whenever the pleadings of other writ petitions are referred hereinafter specific mention of same shall be made.

On 25.8.2008, a Division Bench of this Court dismissed writ petition No. 38714 of 2003 and other writ petitions as mentioned in group-3 as having become infructuous noticing the apex Court judgment in post graduate college Post Graduate Institute of Medical Education & Research, Chandigarh & Ors. v. K.L. Narasimhan, 1997 (6) SCC 283 that on a single post no rule of reservation shall apply. The Division Bench noticed that in view of fresh advertisements and corrigendum dated 24.2.2005 and 23.2.2006, the writ petitions challenging the applicability of the reservation Rules in the advertisement have become infructuous.

Special Leave Petition filed by the State of U.P. against the judgment dated 7.8.2008 passed by this Court in writ petition No. 29524 of 2007, Dr. Bharat Singh Vs. State of U.P. along with a Special Leave Petition filed by the State of U.P. against the Division Bench judgment dated 25.8.2008 in writ petition No. 38714 of 2003 and other petitions (Civil Appeal Nos. 2352, 2353-2355, 2356, 2358, 2359, 2360 and 2361 of 2011) were taken together by the apex Court and decided by a common judgment and order dated 8.3.2011 . Vide judgment and order dated 8.3.2011, the apex Court disposed of all the appeals with several directions. The apex Court in its judgment referred to two questions in paragraph 20 which were as follows:

"(i) Whether the High Court was justified in quashing the appointment of the enquiry officer appointed to look into the allegations of malpractice allegedly committed in the course of selection process and

(ii)Whether the posts of Principals in different affiliated/aided Degree and Post-Graduate institutions constitute a cadre and are, therefore, subject to reservation as prescribed under the provisions of the Reservation Act of 1994."

The question No. 2 has been decided by the apex Court holding that the post of Principal in degree colleges and post graduate colleges did not constitute a cadre and being single post, the provisions of Reservation Act, 1994 are not applicable. The apex Court, while considering the question No. 1 observed that since all the writ petitions challenging the selection of teachers of post graduate colleges and degree colleges are pending in the High Court, it is appropriate that High Court may examine all aspects of the matter. The order of the State Government dated 12.6.2007 appointing Divisional Commissioner as preliminary inquiry officer was set aside. It is useful to note the directions issued by the apex Court in paragraph 53, which are as follows:

"(1) The impugned orders passed by the High Court to the extent the same hold that the posts of Principals in affiliated/aided colleges are not amenable to reservation are affirmed.

(2) Order dated 12th June, 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 passed by the High Court to that effect affirmed.

(3)The question whether the Government was competent to direct an enquiry into the validity of the selection process under Section 6 of the Uttar Pradesh Higher Education Services Commission Act, 1980 or under Article 154 of the Constitution is left open in view of the pendency of the writ petitions challenging the validity of the selection process before the High Court.

(4) The High Court shall in the writ petitions pending before it be free to examine all issues regarding the selection process in question including the validity of the procedure followed in making the same. Depending upon whether the High Court finds the selection process to be valid or otherwise the Government shall have the liberty to institute an enquiry against the members of the State Services Selection Commission if such enquiry is otherwise permitted under law. In case, however, the High Court upholds the selection process and dismisses the writ petitions there shall be no room left for the State Government to embark upon any further enquiry into the matter on the administrative side. The aggrieved party shall be free to challenge the view taken by the High Court in appropriate proceedings in accordance with law. 60 (5) The selected candidates who have filed undertakings in this Court and have been appointed to the posts of Principals pursuant to the orders of this Court shall stand impleaded as parties to each of the writ petitions pending in the High Court and challenging the selection process. The selected candidates shall based on this direction appear before the High Court on 2.5.2011 without any further notice in each one of the petitions and file their counter-affidavits. Failure on the part of the candidates to do the needful shall be suitably dealt with by the High Court who shall be free to proceed ex-parte, against those who fail to comply with this direction.

(6) In order to expedite the hearing of the case the Chief Justice of the High Court of Allahabad is requested to place the writ petitions before a Division Bench of the High Court for an early hearing and disposal as far as possible before the 1st December, 2011.

(7)Pending disposal of the writ petitions by the High Court the selected candidates shall be entitled to receive their pay and allowances including increments etc. otherwise admissible to the post of Principal as if the appointments were made on a valid and substantive basis. Such benefits flowing from the same shall, however, be subject to the outcome of the writ petitions before the High Court and the undertakings furnished by the appointed candidates to this Court which undertaking shall be deemed to have been continued till such time the writ petitions are finally disposed of."

In pursuance of the aforesaid judgment dated 8.3.2011 of the apex Court all these writ petitions were listed before this Bench. The apex Court in its judgment dated 8.3.2011 directed the selected candidates to appear before the Court on 2.5.2011 and file their counter affidavits. It was further directed that selected candidates shall stand impleaded as parties to each of the writ petition pending in the High Court. Although the apex Court directed the selected candidates to appear on 2.5.2011 and file counter affidavit but when the case was taken up on 2.5.2011, no one had put in appearance on behalf of selected candidates as has been noted in the ordersheet of writ petition No. 38714 of 2003. The writ petition was listed thereafter but could not be decided before 31.12.2011. On 22.12.2011, learned counsel for the parties jointly requested for fixing the hearing in the first week of January, 2012. A counter affidavit on behalf of some of the selected candidates could be filed on 4.1.2012 on which date time was allowed to the petitioner to file rejoinder affidavit. Thereafter, the matter was heard on several dates and ultimately, the judgment was reserved on 23.2.2012.

We have heard Sri Alok Misra, Siddharth Nandan, Neel Kamal Advocates appearing for the petitioners, Sri V.K. Singh, learned Additional Advocate General assisted by Sri V.K. Chandel for the State. Sri H.N. Singh Advocate has appeared for the U.P. Higher Education Services Commission, Sri Ashok Khare, learned Senior Advocate, Sri Prem Prakash Yadav, Sri Shailendra, Sri Rajiv Misra, Sri Simant Singh, Sri Gautam Baghel have appeared for the selected candidates.

Arguments on behalf of the petitioners challenging the selection on the post of Principal post graduate colleges and Graduate Colleges by the U.P. Higher Education Services Commission were led by Sri Alok Misra, Advocate. Sri Misra submits that the U.P. Higher Education Services Commission in conduct of selection has committed large scale irregularities and malpractices resulting in selection of undeserving candidates and exclusion of meritorious candidates. Sri Misra raised following submissions:

(I)The members who constituted the Higher Education Services Commission at the relevant time were not qualified to be appointed as Members or to hold selection of the Principals. It is contended that all the members of the Commission at the time of selection of Principals of degree colleges as well as post graduate colleges were Readers working in different degree colleges/ post graduate colleges in the State of U.P. (except one) and were not competent or capable enough to hold interview for the post of Principals of post graduate colleges and degree colleges, which posts of Principals are higher in rank to the substantive post which were held by such members. It is submitted that the State Government had appointed such Members in purported exercise of its power under section 4(2) (g) of the U.P. Higher Education Services Commission Act, 1980. The members so appointed under sub clause (g) were not emminent persons having made valuable contribution in the field of eduction and State Government in appointing such persons acted against the very object and purpose of the Act. It is submitted that selection conducted by such persons has vitiated the entire process. He submits that in writ petition No. 34198 of 2008, a prayer of setting aside the appointment of respondents no. 4 to 9 have also been made.

(II)The next submission which has been pressed by learned Counsel for the petitioner is that U.P. Higher Education Services Commission conducted the entire selection without fixing any criteria for conducting the interview. It is submitted that selection was based only on interview having 300 marks in total without giving any credit to academic qualifications and experience.

(III) Conduct of selection only on the basis of viva-voce test without any criteria for conduct of viva-voce leads to an improper and arbitrary selection. The viva-voce test does not afford the proper criteria for assessment of suitability of the candidates and it is highly subjective, which is capable of abuse because it leaves scope for favouritism nepotism, which remained undetected under the cover of an interview. Regulation 6 of U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulation 1983 (hereinafter referred to as "1983 Regulations") mandates fixing of a criteria, minimum standards and guidelines by the Commission which having not been done, the entire process is vitiated.

(IV)The Commission in calling the candidates for interview have adopted an arbitrary procedure to help those candidates who were not coming within the normal zone of consideration for being called in the interview. The screening of the candidates as contemplated by Regulation 6 has also not been conducted fairly rather a decision has been taken to call all the candidates without any screening in sofar as posts of principal of degree colleges are concerned and adopting an unfair and arbitrary screening in so far as Principal of post graduate colleges are concerned. It is submitted that with regard to degree colleges principal, candidates were called without carrying any screening of the candidates with sole objective of permitting all candidates howsoever lower in merit index so that selection of favourite candidates be ensured. Had the Commission adopted the norm for calling the candidates in the ratio of 3 to 8 against one vacancy, several candidates who have been selected as principals in the degree colleges would not have even been called for appearing in the interview. With regard to principal of post graduate colleges although the Commission in its meeting dated 13.5.2008 took a decision to call 8 candidates against one vacancy. However, actually 95 more candidates in the male category, 18 more candidates in the female category were called and out of the aforesaid candidates, large number of candidates were selected. Calling of candidates to appear in the interview who could not have been called if the screening norms were fairly implemented was with the sole object to get candidates of lower in merit selected. The above facts clearly proved that Commission adopted unfair, arbitrary procedure and committed malpractices in selection.

(V)That State Government had received serious complaints against the whole procedure in conducing the selection of principal of degree colleges whose result was declared on 15.5.2007. The State Government appointed Divisional Commissioner, Allahabad for conducting a preliminary inquiry about the serious allegations of malpractice, nepotism and corruption of the U.P. Higher Education Services Commission. The Divisional Commissioner called for all relevant materials and found prima-facie the allegations to be true, which is clear from the report of the preliminary inquiry officer brought on the record. Although the aforesaid preliminary inquiry report as well as order of the State Government appointing the preliminary inquiry officer have been set aside by the apex court vide its judgment dated 8.3.2011 in Civil Appeal No. 2351 of 2011, State of U.P. Vs. Bharat Singh and others, the apex Court has left all the questions open for consideration including the entitlement of the State Government to direct for inquiry. The apex Court in its judgment dated 8.3.2011 had taken the view that permitting an inquiry by the State Government is nothing but duplication since complaints which were submitted to the State Government regarding procedure of selection are under consideration before the High Court in these writ petitions. It is submitted that the complaints which were submitted to the State Government were based on relevant facts which were also found proved. It is further submitted that the petitioner no. 1 in writ petition No. 34198 of 2008, submitted a detailed representation dated 10.1.2008 filed in the writ petition as Annexure-6 giving various suggestions regarding screening and conduct of the selection procedure which have neither been adverted nor any action has been taken by the competent authority. In selection of Principals degree colleges five female candidates who were applicants against the post of Principals of male category and were in the merit list of the male category have been illegally shifted against the posts of principal female category to adjust five more persons of their choice in the category of male which was impermissible. The above instances also indicates the irregularities and illegality in the procedure adopted by the Commission.

(VI)In the advertisement No. 39 of 2005 although the posts of principals were not stated to be reserved for scheduled castes and scheduled tribes and other backward class or for dependent of freedom fighter and physically handicapped candidates but in the final selection, the selection has been made against the category of dependents of freedom fighter and physically handicapped which reservations were not applicable for the post of Principal of degree colleges/ post graduate colleges being single post in an institution. The apex Court had already in its judgment dated 8.3.2011 in State of U.P. Vs. Bharat Singh (supra) had decided that provisions of U.P. Act No. 4 of 1994 providing for reservation of scheduled castes and scheduled tribes and other backward class are not applicable on the post of principal it being a single post, the horizontal reservation also could not have been applied by the U.P. Higher Education Services Commission in the selection.

(VII)The entire selection process by the Commission was tainted with nepotism and favouritism which is fortified from the fact that several candidates who did not fulfil the minimum eligibility had been called to appear in the interview both against the post of principals of post graduate colleges and degree colleges and were actually selected. He submits that according to the details given by the candidates in their application forms (details of which have been brought on record by the petitioners) they were not fulfilling the qualifications and experiences but still were called to appear which clearly proves that the Commission proceeded to select the candidates due to extraneous considerations.

Refuting the submissions of learned Counsel for the petitioner, Sri H.N. Singh, learned counsel appearing for the U.P. Higher Education Services Commission contended that selection by the U.P. Higher Education Services Commission was in accordance with the Act, Rules and Regulations and petitioners having been declared not selected, cannot be heard in complaining the selection or the selection process. He submits that the petitioners having appeared in the interview for the posts of principal, they cannot turn round and challenge the constitution of selection Committee or the process of selection. It is submitted that screening norms determined by the Commission were in accordance with Regulation 6. He submits that requirement of calling 3 to 8 candidates against one vacancy is only directory and Commission in its discretion can call even larger number of candidates for interview. He submits that infact the candidates who appeared in the interview were less than the ratio of 1:8. It is submitted that criteria of interview as determined by the Commission in its meeting dated 6.10.1983 is valid criteria which is being followed in selection of principals of degree colleges and post graduate colleges. The apex Court vide its judgment dated 8.3.2011 had directed the High Court to examine whether the selection has taken place in accordance with the procedure or not and the selection having taken place in accordance with the Act, Regulations and Guidelines of the Commission, the petitioners are not entitled for any relief. The members of the Commission who had conducted the interview including respondents no. 4 to 9 in writ petition No. 34198 of 2008 have already completed their term hence, the relief of setting aside the appointment of members of the Commission having become infructuous, cannot be considered or granted. Large number of candidates being absent in the interview, the ratio of the candidates who appeared was less than 1:8.

Sri V.K. Singh, learned Additional Advocate General assisted by Sri V.K. Chandel appearing for the State submitted that State Government had full jurisdiction and power to direct for inquiry in the complaint received against the selection conducted by Higher Education Services Commission. It is submitted that apart from power given to the State Government under section 6 of the Act, the State Government had executive power under Article 154 of the Constitution of India by virtue of which the State Government can direct holding of preliminary inquiry by any competent person whom it may deem fit.

Learned counsel appearing for the selected candidates has also refuted the submission of learned counsel for the petitioners and adopted the submissions made by Sri H.N. Singh, learned counsel for the Higher Education Service Commission. It is submitted that petitioners, who had appeared in the interview against the post of Principals have taken their chance to get selected and after being declared unsuccessful they cannot be allowed to challenge the selection process or the constitution of the Selection Board. It is submitted that challenge to the appointment of the Members of the Commission cannot be entertained while considering any challenge to the selection on the post of Principals. It is submitted that State Government has no jurisdiction under section 6 or in exercise of any executive power to direct for an inquiry in the selection of post of principals by Higher Education Services Commission. It is submitted that Higher Education Service Commission is an autonomous body and the State Government cannot exercise any competence to direct an inquiry with regard to selection process adopted by the Commission. The power of the State Government under section 6 is only to the extent of removing the Members of the Commission as per procedure prescribed and that power cannot clothe the State Government to direct for inquiry in the selection process adopted by the Higher Education Service Commission. It is further contended that the candidates were called to appear in the interview both against the post of principals in the post graduate colleges and under graduate colleges in accordance with the norms of screening as fixed by the Higher Education Service Commission. It is in the discretion of the Commission to decide as to how many candidates are to be called for interview and the Commission having exercised its discretion to call the candidates even if they are in the ratio of 1:9, there is no violation of any statutory provisions. The Members who conducted the interview were validly appointed by the State Government in exercise of powers under section 4 of the Act, which appointment cannot be permitted to be challenged by the petitioners in these writ petitions. It is submitted that term of members having come to an end, the writ petition praying for a writ of quo-warranto have become infructuous. It is further submitted that in any view of the matter, the actions of the members of the Commission are fully saved by defacto doctrine. All the candidates who were called for interview fulfilled the qualifications and experience and the allegations made by the petitioners to the contrary are incorrect. There was no illegality in women candidates being considered against the post of principals of female category although they have earlier applied for male category since they had made request for being considered against the posts of female category. It is further submitted that writ petition No. 34198 of 2008, Dr. Karuna Nidhan Upadhya cannot be entertained since both the petitioners have earlier filed writ petitions which were dismissed as withdrawn on 3.7.2008 without taking any leave of the Court to file fresh writ petition. The writ petition being second writ petition cannot be entertained and the writ petition is also barred by principles of constructive resjudicata. The writ petition has been filed with oblique motive and at the instance of the new Government when the earlier Government was voted out of power the writ petition has been filed with political motives of maligning the Commission. The Minister of Higher Education Government of U.P. ( which Government resumed power on 11.5.2007) himself has forwarded the complaint on 18.6.2007. The petitioners have not filed writ petition for ventilating their own grievance, after change of the Government selection made earlier could not be rescinded. Higher Education Service Commission which is selecting body had full jurisdiction to formulate policy and guidelines for selection which having been made in accordance with the said policy and guidelines cannot be interfered with by this Hon'ble Court . Judicial review of the selection made by the Higher Education Service Commission should not be allowed in the facts of the present case. There is presumption of exercise of power in good faith. Selection on interview has been held to be valid by the apex Court in several judgements and no exception can be taken to the selection only based on interview.

Horizontal reservation is guaranteed under Article 16(1) of the Constitution of India. The judgment of the apex Court in State of U.P. Vs. Bharat Singh has dealt with social reservation and is not applicable with regard to special reservation guaranteed under Article 16(1) of the Constitution of India. Horizontal reservation has been granted by the Higher Education Service Commission in pursuance of the letter dated 7.5.2007 of the Director of Higher Education.

We have considered the submissions of learned counsel for the parties and perused the record.

From the submissions as noted above and pleadings of the parties in different writ petitions several issues arise for consideration of this Court. As noted above, the apex Court in its direction dated 8.3.2011 has specifically directed the High Court to examine all issues regarding the selection procedure including the validity of the procedure. The main issues which arise for consideration in these writ petitions are as follows:

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 fulfil the minimum qualification as required?

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 can not 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?

Before we proceed to consider various issues as noted above, it is relevant to note the statutory provisions governing the selection on the post of Principals post graduate/graduate colleges in the State of U.P. The mode and manner of selection and the procedure to be adopted by the U.P. Higher Education Service Commission has also to be looked into to examine the various contentions which have been raised challenging the selection.

The Higher Education Service Commission has been constituted by U.P. Higher Education Service Commission Act, 1980 (hereinafter referred to as "1980 Act".) with object as has been noted in the statement of objects and reasons which were as follows:

"The question of establishing a Services Commission for the selection of teachers to the institutions of higher learning has been under consideration of the State Government for quite sometime. Recommendations in this direction were also made in the Vice Chancellor's Conference in 1975. The University Grant Commission, however, expressed the view that, in the first instance, the proposed Commission may be confined to the selection of teachers in affiliated and associated colleges only. It has accordingly been decided to establish a Higher Education Services Commission.

Accordingly to the existing procedure, every college governed by the Uttar Pradesh State Universities Act, 1973, has its own Selection Committee with certain nominees of the Vice-Chancellor therein. It has been brought to the notice of the State Government that the meetings of these Selection Committees are quite expensive. Sometimes, the meetings have to be postponed because a common date does not normally suit all the members. Complaints of favoritism in the selection of candidates have also been made from time to time. The proposed Commission, it is expected, shall be free from the above shortcomings."

Section 4 of the Act provides for composition of the Commission. Section 4 of the Act is as follows:

"4. Composition of the Commission-(1) The Commission shall consist of a Chairman and not less than two and nor more than six other members to be appointed by the State Government.

(2) No person shall be qualified for appointment as Chairman unless he-

(a) is or has been a member of Uttar Pradesh Higher Judicial Service who has held the post of District Judge or any other post equivalent thereto; or

(b) is or has been a member of the Indian Administrative Service who has held the post of a Secretary to the State Government or any other post under the State Government equivalent thereto; or

(c) is or has been a Vice-Chancellor of any University; or

(d) is or has been a Professor in any University; or

(e) is in the opinion of the State Government an eminent person having made valuable contribution in the field of education"

(2-a) No person shall be qualified for appointment as member unless he-

(a) is or has been a member of Uttar Pradesh Higher Judicial Service who has held the post of District Judge or any other post equivalent thereto; or

(b) is or has been a member of the Indian Administrative Service who has held the post of a Secretary to the State Government or any other post under the State Government equivalent thereto; or

(c) is or has been a Vice-Chancellor of any University; or

(d) is or has been a Professor in any University; or

(e)is or has been a principal of a post graduate college for a period of not less than five years; or

(f) is or has been a Principal of Degree College for a period of not less than ten years; or

(g) is in the opinion of the State Government an eminent person having made valuable contribution in the field of education.

(3) Every appointment under this section shall take effect from the date on which it is notified by the State Government."

The U.P. Higher Education Service Commission conduct selection on the post of Teachers and principals of post graduate and degree colleges. The composition of the commission as envisaged under section 4 clearly contemplates that members of the Commission are persons occupying a position of eminence and learning so as to enable to act as selecting body for post of principals and lecturers. One of the clauses under sub section (1), (2) (a) of Section 4, which provides an additional category of persons who can be appointed as clauses (e )and (g) which are to the same effect i.e. " is in the opinion of the State Government as an eminent persons having made valuable contribution in the field of education". Section 11 of the Act enumerates the powers and duties of the Commission. Section 11 (a) empowers the Commission to prepare guidelines on matters relating to the method of recruitment of teachers in colleges. Section 12 provides procedure for appointment of teachers. Section 12(4) which is relevant is as follows:

(4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulations:

Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3):

Provided further that the candidates shall be required to indicate their order of preference for the various colleges, vacancies wherein have been advertised."

Section 31 empowers the Commission to make regulations with the prior approval of the State Government. Section 31 is as follows:

"31. Power to make regulations. - (1) The Commission may, with the previous approval of the State Government, make regulations prescribing fees for holding selections, conducting examinations where necessary, holding interview and laying down the procedure to be followed by the Commission for discharging its duties and performing its functions under this Act.

(2) The regulations made under sub-section (1) shall not be inconsistent with the provisions of this Act or the rules made under Section 32."

Regulations have been framed namely; U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983. Regulation 6 relates to procedure for selection, Regulation 10 deals with the residuary matters. Regulations 6 is as follows:

6. Procedure for selection.-(1) The Commission shall scrutinise 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 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 and 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 candidates shall not be more than three times the number of vacancies or the number of vacancies plus four whichever is more."

The Commission from time to time by its different resolutions had taken decisions regarding mode and manner of carrying out screening of the applications and the manner in which the marks shall be allocated for the interview which shall be hereinafter referred to.

The process of selection on the post of Principal of Postgraduate/Degree Colleges only on the basis of interview was objected and serious complaints were made to the State Government against the selection process adopted by the Commission as the same resulted in arbitrariness and favouritism on the part of Commission. It is relevant to note that considering the objections and criticism of the entire process of selection of the Commission, the Governor/Government intervened and promulgated the Uttar Pradesh Higher Education Service Commission (Amendment) Ordinance, 2008 (U.P. Ordinance No.2 of 2008) which was published in the U.P. Gazette Extraordinary on 17th June, 2008 by which Ordinance Section 13(1) of the Act was amended and it was made mandatory that selection be held on the basis of written examination and interview of the candidates. Clause 2 of the Ordinance is quoted as below:-

"2. Amendment of Section 13 of U.P. Act No.16 of 1980.- In Section 13 of the Uttar Pradesh Higher Education Services Commission Act, 1980, hereinafter referred to as the principal Act, in sub-section (1) for the words ''hold interview (with or without written examination) of the candidates' the words ''hold written examination and interview of the candidates' shall be substituted."

The above Ordinance No.2 of 2008 was enacted as Uttar Pradesh Higher Education Services Commission (Amendment) Act, 2008. It is useful to note the statement of objects and reasons of the Amendment Act, 2008. In the statement of objects and reasons, it was clearly noted that holding selection on the post of Principal on the basis of interview was adversely effecting the image of the Commission. The statement of objects and reasons is quoted below:-

"Prefatory Note-Statement of Objects and Reasons.- The selection of teachers for appointment in the non-government aided degree colleges is made by the Uttar Pradesh Higher Education Services Commission under the provisions of the Uttar Pradesh Higher Education Services Commission Act, 1980. Section 13 of the said Act provides for holding interview (with or without written examination) of the candidate with respect to the selection of teachers. Selection of teachers for appointment to the important posts of Principals and Lecturers only on the basis of interview was adversely effecting the image of the Commission in the general public. It was therefore decided to amend the said Act to provide for holding written examination and interview for the selection of the candidates for the appointment to the posts of teachers.

Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Higher Education Services Commission (Amendment) Ordinance, 2008 (U.P. Ordinance No.2 of 2008) was promulgated by the Governor on June 17, 2008."

The State Legislature came with the amendment in Section 13(1) of the Act in view of the serious objections regarding the selection process under which selection was made only on the basis of interview. It is further relevant to note that the matter being treated as urgent, the ordinance was promulgated on 17th June, 2008 on which date the selection on the post of Principal of Postgraduate Colleges was still in process. Although the selection process, which is under challenge in this bunch of writ petitions, had commenced prior to the aforesaid amendment and the aforesaid amendment may not regulate the process which had already undergone but the amendment brought in the Act clearly indicates that earlier process of selection on the post of Principal through holding interview alone, was proved to be unsatisfactorily, hence was corrected.

1.Entertainability of Writ Petition No.34198 of 2008:

One of the objections raised by leaned counsel for the selected candidates regarding maintainability of writ petition No. 34198 of 2008 Dr. Karuna Nidhan Upadhya needs to be considered first.

The objection raised by learned counsel for the selected candidates is that both the petitioners i.e. Karuna Nidhan Upadyya, Dr. Ramashraya Singh had filed earlier writ petition No. 26501 of 2008, Karuna Nidhan Upadhya Vs. State of U.P. and others and writ petition No. 27600 of 2008 Dr. Ramashray Vs. State of U.P. and others, which writ petitions were dismissed as withdrawn on 3.7.2008 without obtaining any liberty from the Court to file fresh writ petition hence, the writ petition No. 34198 of 2008 filed on 15.7.2008 cannot be entertained. Learned Counsel for the selected candidates have relied several decisions in support of his submission including the judgment of the apex Court reported in AIR 1987 SC. 88 Sarguja Transport Service vs. State Transport Appellate Tribunal. It has also been submitted that principle of constructive res-judicata is also attracted since the issues which can or ought to have been raised by the petitioners in earlier writ petition, cannot be allowed to be raised in the present writ petition. There cannot be any dispute to the proposition that a petitioner who withdraws the writ petition filed for a cause of action without obtaining liberty of the court to file a fresh writ petition, cannot be allowed to file fresh writ petition on same cause of action but the fact to be considered is as to whether the writ petitions filed by both the petitioners which were withdrawn on 3.7.2008 were based on the same cause of action on the basis of which cause of action second writ petition No. 34198 of 2008 has been filed. The petitioners themselves in paragraph 19 have mentioned about filing of the earlier writ petition and it stated that since now the selection process had been over therefore, the earlier writ petition had become infuctuous hence, the said writ petition were dismissed as withdrawn. In paragraph 19 of the writ petition following has been pleaded by the petitioners:

"19. That the petitioner no. 1 and 2 have filed writ petition No. 26501 and 27600 of 2008 at the earlier stage and now the selection process has been over therefore the same became infructuous, hence the same are being dismissed as withdrawn. A true copy of the order dated 3.7.2008 is being filed and marked as ANNEXURE NO. VII to this writ petition"

The earlier writ petition of Karuna Nidhan Upadhya being writ petition No. 26501 of 2008 was filed before start of the interview and the writ petition by Ramashray Singh was also filed before completion of the process of interview. It is useful to note the prayers made in earlier two writ petitions which are as follows:

Prayer of writ petition No. 26501 of 2008 (I)issue a writ order or direction in the nature of certiorari quashing the impugned advertisement dated 24.2.2005 (Annexure no. 1 to the writ petition) (II)issue a writ order or direction in the nature of mandamus directing the respondent no. 3 to declare the fair and transparent policy pertaining to selection against the impugned advertisement dated 24.2.2005 and till the transparent policy being declared the selection process scheduled to be held from 2nd June, 2008 to stayed during the pending of the present writ petition, so that justice maybe done."

Prayer of writ petition No. 27600 of 2008 (I) issue a writ order or direction in the nature of mandamus directing the respondent no. 3 to not to held the interview which starts from 2nd June, 2008 with immediate effect till the fresh advertisement is being made by the respondent no. 3 in prescribed and transparent guide line for the selection on the post in question, so that justice may be done.

(ii) issue a writ order or direction in the nature of mandamus directing the respondent no. 1 to appoint members of the respondent no. 3 in accordance with section 4 of the U.P. Higher Education Commission Act, 1980 as amended upto date.

The result of the selection on the post of Principals of post graduate was declared by select lists dated 30.6.2008 and 2.7.2008 and the earlier writ petitions were dismissed as withdrawn on 3.7.2008, thereafter writ petition No. 34198 of 2008 was filed. In the instant writ petition challenge is to the final select list dated 30.6.2008 and 2.7.2008. When the earlier writ petition was filed neither selection had been completed nor select list was declared. Thus, the subsequent writ petition has been filed on a new cause of action which was not available at the time of filing of earlier writ petition. Thus, objection raised by learned counsel for the selected candidates has no substance. It is useful to note the judgment of the apex Court in 2002 (2) SCC 712 G.N. Nayak vs Goa University and Ors, wherein also similar objections were raised with regard to selection on the post of professor in Goa University. The Court took the view that since the subject matter of subsequent writ petition being different, the objections was overruled. It is useful to quote paragraphs 16 and 17 of the judgment which are to the following effect:

" 16. The first submission raised on behalf of the appellant is in the nature of a preliminary objection. According to him, the respondent No. 5 having withdrawn the earlier writ petition without liberty to file a fresh application on the same cause of action could not be permitted to re-agitate the identical issues again.

17. The submission is misconceived. The first writ application had been filed on the ground of apprehended bias on the part of the respondent No. 2. In the present case, the allegation is of actual bias. Furthermore, the subject matter of the earlier writ application was the selection which was due to be held on 13th September 1995 pursuant to the advertisement issued on 10th August 1994. The subject matter of the subsequent writ application is in connection with the advertisement issued in October 1995 and the selection which was held on 20th May 1996. The subject matter of both proceedings being different, the second writ application is competent."

2.Challenge to the Appointment of Members of the Commission:

The first issue to be considered is the issue pertaining to the appointment of respondents no. 4 to 9 as members of the U.P. Higher Education Services Commission, which has been challenged in writ petition No. 34198 of 2008. In most of the writ petition there is challenge only to the select list and only in writ petition nos. 34198 of 2008 and 49104 of 2008 there is challenge to the appointment of respondents no. 4 to 9, who were appointed as members of the Commission. The writ of quo-warranto has been prayed for commanding the respondents to show cause as to why appointment of respondents no. 4 to 9 be not set aside. The Division Bench while entertaining the writ petition on 19.8.2008 did not choose to issue notice to respondents no. 4 to 9, who were appointed as members of the Commission. The petitioners who were applicants for the post of principals were aggrieved by select list prepared by the Commission in respect to advertisement No. 39 of 2005. U.P. Higher Education Services Commission in its counter affidavit has specifically stated that the tenure of respondents no. 4 to 9 as members of the U.P. Higher Education Service Commission has already come to an end hence, the prayer of the petitioners to set aside the appointment has become infructuous and the Court need not enter into the said issue. The fact is undisputed that tenure of respondents no. 4 to 9 has already come to an end. The respondents no. 4 to 9 were continuing as members of the Commission at the time when they participated in the selection of the Principals of post graduate colleges. Learned Counsel for the respondents have rightly referred to and relied the defacto doctrine in AIR 1981 SC 1473 Goka Raju Ranga Raju Vs. State of Andhra Pradesh. The acts of respondents no. 4 to 9 who were members of the commission at the relevant time thus shall be clearly protected by defacto doctrine. Due to above reasons, we do not think it fit and appropriate to proceed to consider the prayer of the petitioners to set aside the appointment of respondents no. 4 to 9 and this Court shall proceed to examine the various contentions and the issues treating that respondents no. 4 to 9 were appointed as Members of the Commission and were holding their office at the relevant time when they participated in the process of selection.

3.The Members of the Selection Board should be higher in rank and stature:

The submission which need to be next considered is as to whether the conduct of interview by the Members of the Commission who were holding rank lower to the posts of principals post graduate and principal degree colleges is valid. In paragraph 14 of the writ petition, the details of respondents no. 4 to 9 have been mentioned, a perusal of which indicate that all the members of the Commission except the respondent no. 9, were working as Reader in different post graduate and degree colleges in the State of U.P. The respondent No.9 was also Reader in a University. Paragraph 10 of the II Supplementary affidavit filed in writ petition no. 34198 of 2008 mentioned the designation and pay scale of the respondents no. 4 to 9. Scale of respondent no. 4 to 9 was 12000-18300. The pay scale of principal of post graduate and degree colleges is 16400-22400 i.e. higher pay scale from the scales of Reader.

The details of Chairman and members of the Commission, who were holding officers at the time of selection of Principal of Graduate Colleges along with their designation, have been brought on record by supplementary affidavit of Dr. (Mrs.) Nooper Sharan in Writ Petition No.44358 of 2007. The details given in paragraph 12 of the affidavit make it clear that the Chairman and both the members were only Readers in Postgraduate/Degree Colleges. It is also relevant to note that one of the members of the Commission at the relevant time was Shri Ram Veer Yadav, working as Reader in Narayan College, Shikohabad, Firozabad who was also an applicant for the post of Principal having applied against the Advertisement No.36 of 2003, which fact has been specifically pleaded in paragraphs 12 and 13 of the supplementary affidavit in Writ Petition No.44358 of 2007. A supplementary counter affidavit has been filed by the selected candidates sworn by Dr. Bharat Singh in which above pleading of paragraphs 12 and 13 of the supplementary affidavit has not been denied, it is useful to quote the pleadings of paragraph 13 of the supplementary counter affidavit, which are as follows:-

"13. That, the contents of paragraphs No.12 and 13 of the supplementary affidavit are incorrect hence denied. There is no violation of Section 42(e). The issue raised is beyond the controversy of the present writ petition as no writ petition was filed at the time of their initial appointment. All the members mentioned in the supplementary affidavit stand completed their term and they are no more member. In the writ petition no relief against their continuation or their appointment has been sought, thus the plea is wholly misconceived and has no relevance for the issue involved in the writ petition......."

The Constitution Bench of the apex Court in 1981 (1) SCC 722 Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors. has held that when selection is based only on interview great care must be taken to see that persons, who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification. Following was laid down in paragraph 18:

"We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification."

The qualifications of members of a higher education Service Commission, who are entrusted to conduct interview of the highest post in post graduate and degree colleges have been specifically laid down. All the members are not covered by any of the qualifications except the last qualification i.e. "an eminent person having made valuable contribution in the field of education". Although the petitioners in the supplementary affidavit have filed the bio-data of respondents no. 4 to 9, who were appointed as members of the Commission and contends that bio-data does not indicate that they are eminent person having made valuable contribution in the field of education but it is not necessary for us to enter into the said issue and consider the same since we have already observed that term of respondents no. 4 to 9 having come to an end, the prayer of writ of quo-warranto has become infructuous. However, the qualifications and status of a person in the field of education cannot be said to be irrelevant factor. Appointing a person having lower rank to the person who is going to be interviewed does not appeal to reason nor inspires confidence in conduct of interview by such persons. At this stage, it is relevant to notice that in writ petition No. 44358 of 2007 it has been specifically pleaded that Ram Bir Yadav one of the members of the Commission at the relevant time had applied for the post of Principal in pursuance of advertisement no. 36. It has been further submitted that many of the members who were part of the Selection Board were not fulfilling the qualifications for appointment to the office for which they were holding selection. In paragraph 25 of the supplementary affidavit dated 31.7.2011 in Writ Petition No.42445 of 2008; Dr. Zarin Nazar vs. State of U.P., it has been specifically stated that three members out of six members of the Commission, namely, Dr. Ashok Kumar, Dr. Amresh Kumar Tripathi and Dr. Anil Kumar Dubey, who were all working as reader did not possess minimum qualification of having 15 years teaching experience. The copy of bio-data of all the members of the Commission obtained under Right to Information Act, 2005 has been filed as Annexure-4 to the writ petition which fortify the above facts. The person who makes an application for appointment to a post and subsequently becomes member of the Board who is to conduct the selection itself points out an ironical situation. It is true that clauses 4 (2) (e) and 4(2) (g) contemplate an eminent person having made valuable contribution in the field of education, who might be holding any rank or any post or no rank or no post but the persons who are working only as Reader in degree colleges or university and holding rank and post lower to principal when are appointed as members of the commission treating an eminent person having made valuable contribution in the field of education, suspicion and doubt is but natural and the whole process require a more closure scrutiny. The post of principal in post graduate or degree colleges is the key post and it is the head of the institution who leads the institution to a stature, reputation and place in the society.

In view of the foregoing discussions, we are of the view that ordinarily a Member of the Selection Board making selection for a post has to be higher in rank/stature to the post for which he is going to make selection and it is only in exceptional cases the said principle be not adhered to. The present is a case where all the members being lower in stature and rank, which makes the exception to a general rule necessitating a very strict scrutiny of the entire procedure of selection.

4.Whether Guidelines Framed are as required by Regulation 6(2):

The next ground of attack on the selection conducted by U.P. Higher Education Service Commission is that Commission conducted the selection in violation of statutory requirement as provided under Regulations 6(2) of 1983 Regulations. The submission is that statutory scheme mandates preparation of appropriate guidelines setting out the criteria and minimum standards for adjudging the suitability of the candidates. It is submitted that in cases where selection is based on interview, the guidelines have to be clearly set out for conduct of selection failing which arbitrariness in the selection based on interview is bound to creep. He submits that the same is absolutely necessary specially when the apex Court in Ajay Hasia's case (supra) had laid down that "in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test" The apex Court in Ajay Hasia's case quoting Ol Glenn Sthalon on Public Personnel Administration observed as follows:

"0l Glenn Stahl points out in his book on "Public Personnel Administration" that there are three disadvantages from which the oral test method suffers, namely, "(1) the difficulty of developing valid and reliable oral tests; (2) the difficulty of securing a reviewable record on an oral test; and (3) public suspicion of the oral test as a channel for the exertion of political influence" and we may add, other corrupt, nepotistic or extraneous considerations. The learned author then proceeds to add in a highly perceptive and critical passage :

"The oral examination has failed in the past in direct proportion to the extent of its misuse. It is a delicate instrument and, in inexpert hands, a dangerous one. The first condition of its successful use is the full recognition of its limitations. One of the most prolific sources of error in the oral has been the failure on the part of examiners to understand the nature of evidence and to discriminate between that which was relevant, material and reliable and that which was not. It also must be remembered that the best oral interview provides opportunity for analysis of only a very small part of a person's total behaviour. Generalizations from a single interview regarding an individual's total personality pattern have been proved repeatedly to be wrong."

But, despite all this criticism, the oral interview method continues to be very much in vogue as a supplementary test for assessing the suitability of candidates wherever test of personal traits is considered essential."

The statutory requirement of laying down guidelines is thus the soul of selection. When selection is based only on interview, a more stringent assessment of the candidates is required on account of the shortcomings of the selection based solely on interview as pointed out by the Constitution Bench in Ajay Hasia's case. The submission which has been pressed by the petitioner is that although there were norms for screening of the candidates for calling them in the interview but no guidelines as envisaged by Regulations 6(2) have been framed by the Commission and selection having been undertaken without appropriate guidelines under regulation 6(2) vitiates the entire selection. Now let us proceed to examine as to whether the Commission has framed the guidelines and whether the guidelines framed by the Commission fulfils the requirements as contemplated by Regulations 6(2). As noted above, after receipt of complaint against the selection of principals of the undergraduate declared on 15.5.2007, the State Government has appointed a Preliminary Inquiry Officer to conduct an inquiry and the inquiry report was submitted by Divisional Commissioner in July, 2007. The Inquiry Officer has noted in his inquiry report that no satisfactory norms were followed in giving marks in the interview. The said inquiry report have already been quashed by the apex Court vide judgment dated 8.3.2011 and matter has been remitted to the High Court to consider all allegations regarding procedure and manner of selection afresh. The petitioner in writ petition No. 34198 of 2008 has brought on record the detailed representation submitted to Hon'ble Governor on 10.1.2008 in which the procedure and manner of conducting interview was challenged and several suggestions regarding framing proper guidelines for conduct of interview have been suggested. It was emphasised that separate marks be allocated on educational qualifications, teaching experience and administrative experience to make the interview fair and objective. The pleading in this context made in the writ petition need to be noted. It is useful to quote paragraphs 22 and 30 of the writ petition which are to the following effect:

"22. That the respondent no. 3 while making the selection on the post of principals in the P.G. Colleges have not fixed any criteria regarding quality marks and made the selection purely on the basis of the interview.

30. That 300 marks has been fixed for interview which ought to be given by the selection committee in comprising 3 members and 3 experts and have divided equal marks and selection has been made purely on the basis of the interview without giving any quality marks on academic career. However, in each and every process of the selection like U.P.S.E.S. Bard there are specific provisions for but giving quality marks on academic qualifications, the respondent no. 3 without fixing any criteria has made the selection only on the basis of viva voce test which is wholly arbitrary and illegal."

It has been pleaded by the petitioner that Commission without fixing any criteria has made the selection only on the basis of viva-voce which is arbitrary and illegal. Supplementary affidavit dated 17.4.2011 has also been filed by the petitioner reiterating his challenge to the conduct of selection without proper norms. It is useful to refer to the pleadings in paragraphs 27 and 28 of the Supplementary affidavit of the petitioner which are to the following effect:

"27. That the selection body was institution of unqualified and lower grade stock and selecting the higher grade candidates.

The respondent no. 3 was adopting arbitrary guidelines in violation of Section 6(2) of Act 1980 selecting their favourite candidates on extraneous consideration, to fulfil their nefarious and ill-motives the respondent No. 3 overlap the provision of 6(1) and 6(2) of the Act for their own benefit, these facts can be substantiated by the information provided the Secretary of the commission vide dated 22.6.2007 and 12.7.2007. A true copy of the letter dated 22.6.2007 and 12.7.2007 are being filed herewith and marked as Annexure No. SA-14."

28. That in interview the arbitrariness of the members and experts rules, there is no scientific guidelines which access the educational excellence and administrative skill of candidate to whomever the members and experts determined to select, they can, even the marks given by the members and experts were pencil written which is subsequently altered to fulfil the extraneous consideration."

There has been specific challenge to the selection on the ground that no scientific guidelines to assess the educational excellence and administrative skill of candidates have been made and the Commission has violated the provisions of Regulation 6. Now stand of the Commission may be noted. In the counter affidavit allegations in paragraphs 22 and 30 have been replied in paragraphs 14 and 19. It is useful to quote paragraphs 14 and 19 of the counter affidavit of the Commission which are to the following effect:

14.That the contents of paragraph nos. 22 and 23 of the writ petition are incorrect, hence not admitted and are denied. The procedure for selection was by interview it was known to the petitioners and they participated in selection process and were unsuccessful. The procedures of interview were well known and the said procedure was followed. Therefore the petitioners can not be permitted to challenge the procedure after participate in the selection process.

19. That the contents of paragraph nos. 30,31,32,33,34,35,36,37,38,39,40 and 41 of the writ petition are incorrect, hence not admitted and are denied. It is submitted that the interview Board interviewed the petitioners and other candidates and sufficient time was given to the each candidate. The performance of the petitioners were not found such on the basis of which they could have been selected. The candidate performing better than the petitioners have been selected, the selection was done following the law and procedure applicable for the selection. It is further stated that the provisions of the Act and Regulation do not provide that the selection should be made on the basis of only after written examination and practical test. The procedure and law provide that the selection may be made by interview (with or without written examination). The procedure for selection was interview, it was know by the petitioners and they participated in the selection process were unsuccessful. The procedure of interview are well know and the said procedure was followed. The petitioners cannot be permitted to challenge the procedure after participated in the selection process. The averments contrary to the aforesaid facts in the paragraph under reply are wrong and denied. The deponent further submits that the appointment of every member of commission has been made by the State Government in accordance with law. The petitioners have participated in the selection process and they cannot permitted to challenge the constitution of Commission."

A perusal of the allegations of the counter affidavit indicates that Commission did not refer to any guidelines framed by it as required by Regulation 6(2) and has only pleaded that procedure for selection by interview was know to the petitioners. In reply to Supplementary affidavit, supplementary counter affidavit has also been filed by the Commission sworn by Dr. D.P. Chaturvedi, the Deputy Secretary. Paragraphs 27 and 28 of the supplementary affidavit have been replied in paragraphs 25 and 26 of the supplementary counter affidavit which are to the following effect.

"25. That the allegations made in paragraph no. 27 of the supplementary affidavit are not correct and denied. It is submitted that correct fact has already been disclosed in the preceding paragraph and allegation of overlapping and etc. is wholly misconceived. The proper guideline was framed for screening guideline for allocation of the marks in interview was already framed and was being follows.

26. That the allegations made in paragraph no. 28 of the supplementary affidavit are absolutely incorrect and denied. There was no question of any haste in declaring the result but the error is human and no person has born as yet who has not committed error similarly the error was corrected in declaration of the result because of the human error and because of the error of the computer which immediately was corrected by the Commission on 2.7.2008."

In the supplementary counter affidavit Commission in paragraph 3 has given certain details. Reference of guidelines framed by the Commission in its meeting dated 10.4.2008 has been referred to in paragraph M 1. In paragraph M2 and M 3 reference of guidelines dated 6.10.1983 framed under regulation 6(2) have been mentioned. It is useful to quote paragraphs M (2) of the supplementary affidavit which is to the following effect:

" M 2. That in exercise of the power under Regulation 6(2) of the Teachers Regulation 1983 the Commission in its 41th meeting dated 6.10.1983 has fixed the criteria for allotment of the marks in interview to the candidates by the Member and expert and each members has been allocated 50 marks and even out of 50 marks critreia is fixed for allotment of the marks on the basis of performance of the candidates as Outstanding, Excellent, Very Good, Good, Fair, and Poor. The guidelines further provide the table and scaling factor depending on participation of the member and expert in a particular board which may be explained at the time of hearing. In this connection true copy of the criteria of allocation of the marks in interview by the Commission is being filed herewith and is marked as Annexure no. 3 to this counter affidavit."

Copy of the guidelines dated 6.10.1983 as referred above has been brought on record as Annexure-3 to the supplementary counter affidavit. The guidelines regarding procedure of selection by the Interview board as approved in the said meeting were as follows:"

"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

2. Excellent

3. Very Good

4. Good

5. Fair

6.Poor 85% and above 75%-85% 65%-75% 55%-65% 45%-55% Below 45% 43 and above 38-42 33-37 28-32 23-27 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 Total of the mau. Marks The marks awarded by the block consisting of Members of the Commission.

The marks awarded by the block Experts

1. 3M+3E

2. 3M+2E

3. 2M+3E

4. 2M+2E 1 1 1.5 1.5 1 1.5 1 1.5 300 300 300 300 "

Apart from the aforesaid guidelines as mentioned in paragraph 3 (M)2, no other guidelines have been referred to.

Reference has been made to the screening guidelines as finalised on 10.4.2008 and thereafter on 13.5.2008 which guidelines for screening are referable to Regulation 6(1) proviso second and are different from the guidelines as contemplated by Regulation 6(2). The scheme of Regulation 6 clearly provides for two separate issues; holding of (a) preliminary screening on the basis of record teaching and administrative experience and (b) setting out the criteria, minimum standards and guidelines for conduct of interview. In the supplementary affidavit the petitioner has brought on record, the information supplied to the petitioner under Right to Information Act vide letter dated 12.7.2007 which mentions that index which is prepared is limited to the extent of calling the candidates in the interview. The index which is prepared for screening the candidates for interview is not given any credit in the selection based on the interview. Thus, for conduct of selection, the guidelines as contemplated by regulation 6(2) are the basis and fundamental. The guidelines as relied by Commission in its meeting dated 6.10.1983 does not fulfil the requirement of Regulation 6(2). The guidelines under regulation 6 (2) for conduct of interview are required to consists of three components i.e. (a) criteria (b) minimum standards (c) guidelines.

The decision taken by the Commission in its meeting dated 6.10.1983 at best can be part of guidelines set out by the Commission for conducting the interview but two essential ingredients components i.e. criteria and minimum standards are not there. What should be criteria for judging the suitability of a candidates on the post of Principal and what should be the minimum standards are two important factors which are the basis for evaluation of the candidates and was required to be necessarily determined and decided. In the resolution dated 6.10.1983, the chart of grading as outstanding, excellent, very good, good, fair and poor is at best the grading to be given. What is the criteria for grading the candidates into above categorisation is not mentioned or provided for. The requirement in the resolution that atleast one expert who concur with the recommendation is already provided in Regulation 6 (3).

Thus, the resolution dated 6.10.1983 by which norms for interview has been claimed to be provided did not fulfil the statutory requirements as provided by Regulation 6(2).

It is relevant to consider one more submission made by learned Counsel for the petitioners. Learned Counsel for the petitioners submits that 50 marks of the interview allocated to each member and expert are required to be subdivided into different heads. The apex Court in Lila Dhar vs State Of Rajasthan & Ors, AIR 1981 Supreme Court 1777 has already rejected the said arguments. Following were the observations made by the apex Court in paragraph 8:

"The second ground of attack must fail for the same reason as the first ground of attack. The rules themselves do not provide for the allocation of marks under different heads at the interview test. The criteria for the interview test bas been laid down by the rules. lt is for the interviewing body to take a general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under different heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidate's personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit it judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive."

Another important judgment which is relevant to be considered is the judgment of the apex Court in 1986 (1) SCC 671 Dr. Keshav Ram Pal, Reader And Head vs. U.P. Higher Education Services Commission. Keshav Ram Pal was also an applicant for the post of Principal before the U.P. Higher Education Services Commission. Keshav Ram Pal appeared in the interview and was not selected. He filed writ petition under Article 32 of the Constitution of India before Hon'ble apex Court. Two grounds were taken challenging the selection; first ground was that the Commission was biased as he belongs to inferior caste namely; Gaderiya. The said ground was rejected by the apex Court in paragraph 1. The second ground was that selection was arbitrary since he possessed highest academic qualifications and longest experience and ought to have been preferred from other candidates. The argument was pressed that although Member of the Board were allocated 50 marks each but there was no allocation fixed under the various heads under which the merits of the candidates were to be judged. The said ground was rejected by the apex Court and it was held that allocation of marks separately on different heads was not necessary. It was held that interview board was under no obligation to subdivide the marks under various subheads. It is relevant to quote paragraphs 2 and 3 of the judgement, which are quoted below:

"2. The second ground on which the petitioner challenged the selection was that it was arbitrary. According to him, he possessed the highest academic qualifications and the longest experience and, therefore, he should have been preferred to all the other who were selected. He contended that though each of the members of the interviewing Board was allocated 50 marks, there was no allocation of the marks for the various heads under which the merit of the candidates was judged. The argument was that although the basis of selection was said to be the candidates' 'academic attainments, teaching experience, administrative experience and suitability for the post of Principal', marks were not separately allocated under each of these heads. This procedure, according to the petitioner, was arbitrary and resulted in arbitrary selection......

The observations in Ajay Hasia's case (supra) have been explained in Lila Dhar v. State of Rajasthan and what has been said in Lila Dhar's case (supra) has been approved by a Constitution Bench of this Court, speaking through Bhagwati, J, in Ashok Ktimar Yadav v. State of Haryana 1984 (4) SCC 417...........

These observations in Lila Dhar's case were quoted verbatim in Ashok Kumar Yadav's case (supra) and approved.......

3.We do not think that the Interviewing Board, in the present case, was under any obligation to sub-divide the marks under various subheads. The writ petition is, therefore, dismissed, but in the circumstances, without costs.

Attack on the selection in Keshav Ram's case was not on the ground that there was no valid criteria for interview rather the challenge was that marks of the interview which were 50 to each member or expert ought to have been subdivided. The said argument was specifically rejected. Thus, the submission of the petitioner's counsel that marks of 50 have to be subdivided in various subheads cannot be accepted. But the fact that marks are not required to be subdivided does not obviate the necessity of laying down criteria and minimum standard for selection as statutorily required by Regulation 6(2).

One more decision of the Apex Court, which needs to be noticed, is the judgment in the case of Kiran Gupta and others vs. State of U.P. and others reported in 2000(7) SCC 719. In the above case, the selection made on the post of Principal of Secondary Schools in the State of U.P. was under challenge. One of the grounds of challenge was that the U.P. Act No.5 of 1982 delegated essential legislative functions of laying down guidelines to the Commission, hence the selection is invalid and further the selection on the basis of interview alone was illegal. The Apex Court repelled both the contentions and held in paragraph 12 as follows:-

"12. .....A plain reading of that clause shows that the legislature has delegated the power of preparation of guidelines on matters relating to the method of recruitment to the Commission which is in the sphere of effectuation of the legislative policy rather than in realm of laying down a legislative policy....."

In the aforesaid case guidelines were framed by the Secondary Education Commission and there were seven factors enumerated for holding interview. It is useful to quote paragraph 29 of the said judgment which is to the following effect:-

"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.

6.Self expressive and impressive views.

7.Achievement in curricular activities of the regional and State levels."

Since the Commission had, in the above case, already laid down specific guidelines and factors for interview, the selection was upheld. In the present case, as observed above, no guidelines as per Regulation 6(2) of the Regulations has been laid down. Thus this case does not help the respondents in the present case.

As noticed above, the index determined under Regulation 6(1) by the Commission for inviting the candidates for interview was not taken into consideration in the selection. It is also relevant to note that although the statutory basis for holding screening is academic record, teaching and administrative experience but it is not necessary for the interview Board to take into consideration the aforesaid three aspects. It is left to the whim and fancy of the interview board to base their evaluation on the aforesaid three criteria or not. Selection which is based solely on the interview on the post of Principal has been left completely unguided and uncanalised whereas statutes mandates the commission to set out the criteria, minimum standards and guidelines. No other material has been brought by the Commission apart from resolution dated 6.10.1983. We are constraint to observe that Commission has failed in its statutory obligation in laying down the criteria, minimum standards and guidelines for evaluating the candidates by the interview board and the whole process of evaluation was left to the fancy and choice of the Board. The requirement of determination of norms is to check the unguided discretion of the Board and unguided discretions leads to arbitrariness. Thus, we conclude that the selection process was affected by non compliance of statutory provisions of Regulation 6(2).

(5.6) Whether Screening Guidelines Followed SCREENING: Another plank of arguments of the petitioners' counsel against the selection in question is that (i) screening guidelines framed by the Commission have been changed to suit the private interest (ii) the candidates have been called in excess of the number of the candidates as fixed by the Commission to help certain chosen candidates and (iii) Norms have not been followed in calling the candidates to appear in the interview.

Regulation 6(1) of the Regulations deals with the Preliminary Screening. The contention of learned counsel for the Commission as well as learned counsel for the selected candidates is that under Regulation 6(1) it is the discretion of the Commission to call such number of candidates as it may consider proper and even if Commission has called excess number of candidates, no exception can be taken to the said procedure. The proviso to Regulation 6(1) provides further that the number of candidates to be called for interview for any category of post shall be 3 to 8 times the vacancy as Commission may consider proper.

The grounds of attack as noted above, need to be considered in seriatum. In the supplementary affidavit of the petitioner, the petitioner has brought on record the guidelines fixed for screening of the candidates in meeting dated 6.11.2006. Prior to 6.11.2006 guidelines for screening were framed and selections were made, which guidelines have not been brought on record. Thus guidelines for screening the candidates were very much there prior to Advertisement No. 39. The guidelines dated 6.11.2006 provided following table for determining the index:

*747-2 vk;ksx ds foKkiu la[;k 39 esa foKfIr Lukrd ,oa LukrdksRrj izkpk;Z inksa gsrq izkIr vkosnu &i=ksa dh lfUujh{kk djus gsrq m0iz0 mPprj f'k{kk lsok vk;ksx ¼v/;kidksa ds p;u dh izfdz;k½ fofu;ekoyh] 1983 ds fofu;e la[;k&6 ds izkfo/kkuksa ds vUrxZr iwoZ fu/kkZfjr Ldzhfuax ukElZ esa la'kks/ku djrs gq, fuEuor~ Ldzhfuax ukElZ fu/kkZfjr fd, x,%& izkpk;Z Lukrd egkfo?kky;

en dk uke vf/kdre vad vadks dk fu/kkZj.k ¼1½ vuqHko 40 vad izFke 10 o"kZ ds fy, 15vad rFkk izR;sd vfrfjDr 1 o"kZ ;k blds vk/ks ls vf/kd ds fy, 2 vad ijUrq vf/kdre 35 vad A 2- mPprj mikf/k 03 vad [email protected],e&lh-gksus ij 03 vad 3- LukrdksRrj 40 vad 50 izfr'kr ij 10 vad rRi'pkr~ izR;sd 01 ;k vk/ks ;k vk/ks ls vf/kd izfr'kr ij 02 vfrfjDr vad ijUrq vf/kdre 40 vad A 4- Lukrd 17 vad 45 izfr'kr ij 07 vad rRi'pkr~ izR;sd 2 ;k blds vk/ks ;k vk/ks ls vf/kd izfr'kr ij 1 vfrfjDr vad ijUrq vf/kdre 17 vad A ¼x½ fof/k ladk;] f'k{kk ladk;] '''kkjhsfjd f'k{kk ds fy, fuEu ekin.M gksxk A fof/k ladk; f'k{kk ladk; 'kkjhfjd f'k{kk 01 LukrdksRrj ,y-,y-,e ,e-,M- ,[email protected],e-ih-,M-

02 Lukrd ,y-,y-ch- ch-,M- [email protected],M-

izkpk;Z LukrdksRrj egkfo?kky;

en dk uke vf/kdre vad vadks dk fu/kkZj.k 1- vuqHko 40 vad izFke 15 o"kZ ds fy, 20 vad rRi'pkr~ izR;sd vfrfjDr 1 o"Zk ;k blds vk/ks ;k vk/ks ls vf/kd ds fy, 3 vad ijUrq vf/kdre 35 vad A LFkkuh izkpk;Z dk vuqHko ds izFke 1 o"kZ ij 1 vad rRi'pkr~ izR;sd 1 o"kZ ;k blds vk/ks ;k vk/ks ls vf/kd gksus ij vfrfjDr 1 vad cksul fn;k tk;sxk ijUrq vf/kdre 5 vad A 2- mPprj mikf/k 03 vad [email protected],l&lh gksus ij 03 vad A 3- LukrdksRrj 40 vad 50 izfr'kr ij 10 vad rRi'pkr~ izR;sd 1 ;k vk/ks ;k vk/ks ls vf/kd izfr'kr ij 02 vfrfjDr vad ijUrq vf/kdre 40 vad A 4- Lukrd 17 vad 45 izfr'kr ij 7 vad rRi'pkr~ izR;sd 2 ;k blds vk/ks ;k vk/ks ls vf/kd izfr'kr ij 1 vfrfjdr vad ijUrq vf/kdre 17 vad A The screening criteria both for principal graduate and post graduate college were almost similar. The said criteria were changed vide meeting dated 10.4.2008. Changed criteria for screening was as follows:

*788-2 vk;ksx ds foKkiu la[;k&39 ds mi[k.M c ds vUrxZr izkpk;Z LukrdksRrj egkfo?kky;ksa ds lfUujh{kk xkbMykbu ds laca/k esa iwoZ esa fy;s x;s fu.kZ;ksa dks fujLr djrs gq, fuEuor~ xkbMykbu vuqeksfnr dh xbZ A dze en dk uke vf/kdre vad vadks dk fu/kkZj.k ¼d½ '''kS{kf.kd ;ksX;rk ¼1½ Lukrd 10 45 izfr'kr vad ij U;wure 07 vad vkSj izR;sd 01 izfr'kr ij 0-10 vfrfjDr vad A vf/kdre 09 vad A ¼2½ LukrdksRrj 20 50 izfr'kr vad ij U;wure 15 vad vkSj izR;sd 01 izfr'kr vad ij 0-20 vfrfjDr vad A vf/kdre 14 vad A ¼3½ mPprj mikf/k 3 Mh0fyV]Mh0,l0lh0 ¼[k½ vuqHko ¼1½ v/;kiu vuqHko 15 15 okZ ds f'k{k.k vuqHko ij U;wure 08 vad vkSj izR;sd 01 okZ ds vuqHko ij 0-50 vfrfjDr vad A vf/kdre 15 vadA ¼2½ izkpk;Z dk vuqHko 2 LFkk;h izkpk;Z ds :i esa dk;Zjr izkpkZ ds izFke 03 o"kZ ij 01 o"kZ ij 0-5 vfrfjDr vad vf/kdre 02 vad ¼ izkpk;Z ds vuqHko dks f'k{k.k vuqHko esa lfEefyr fd;k tk;sxk½ The petitioner's case is that there was no occasion to change the guidelines and it was done to suit certain candidates to whom the earlier guidelines were not favourable. In the guidelines which were changed on 10.4.2008, the marks on experience has been reduced. The advertisement no. 39 was issued in February, 2005, and corrigendum was issued on 23.2.2006. The last date for submission of the application was 3.4.2006. It is settled law that Rules as existing on the last date of the submission of the application for recruitment have to be followed in the recruitment. Change of recruitment process or rules of recruitment during currency of recruitment has always been frowned upon. No reasons are also forthcoming on behalf of the Commission to show that what was the necessity or need for changing the screening criteria. The change of screening criteria has to necessarily effect the candidates. Some candidates who could have been called for interview in the screening must have been gone out of zone of consideration and some of the candidates who were not eligible as per earlier guidelines have been called for interview. The change of guidelines without there being any valid reason, is unjustified and indicates arbitrary exercise of power. In this context, it is relevant to note the apex Court judgment in the case of P. Mohanan Pillai vs State Of Kerala & Ors, (2007) 9 SCC 497. Following was laid down in paragraph 11:

"It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed."

It is thus clear that the criteria for screening was changed just before calling the candidates for interview for the post of principal post-graduate colleges without any justifiable reason.

It has been further submitted that the candidates have been called in excess. Regulation 6(1) give discretion to the Commission to call for interview such number of candidates as it may consider proper. The proviso however, lays down how the discretion to call for candidates in the interview shall be exercised. Proviso provides that number of candidates to be called for interview as far as possible be between 3 to 8 times the number of vacancies. Thus, the submission that there is a total discretion of Commission to call the candidates for interview cannot be accepted. The power of the Commission to call the candidates for the interview is hedged by proviso and the requirement is that the number of candidates should be between 3 to 8 times the number of vacancies. In the present case, as per the decision of the Commission, which has been brought on record by the Commission, Commission decided to call candidates in the ratio of 1:8 by its resolution dated 13.5.2008, copy of which has been filed as Annexure C.A.-5 to the Supplementary counter affidavit of the Commission. Thus, the decision was taken by the Commission to call 8 candidates against one vacancy. In the supplementary affidavit filed by the petitioner, the petitioner has brought on record the information supplied to the petitioner by Secretary, U.P. Higher Education Service Commission vide 27.9.2010, copy of which has been filed as Annexure S.A.9, which provides the details of the candidates against the principals of post graduate colleges, who were called in excess to the ratio of 1:8, 18 in the female category and 95 in the male category. It has been brought on record that out of the aforesaid candidates who were in excess to the ratio of 1:8, 11 candidates from the male category four candidates from female category were selected. It is thus, clear that in case the Commission would have confined calling of the candidates into ratio of 1:8 as was already decided on 13.5.2008 11+4 candidates who have been selected, could not have even participated in the interview. The calling of the candidates in excess to the norms fixed is nothing but an arbitrary exercise of power as has been laid down in P. Mohanan Pillai vs State Of Kerala & Ors (supra). In P. Mohanan Pillai's case (supra) against 12 posts, 36 candidates were within the zone of consideration 1:3 which were called in the interview. Subsequently a decision was taken to call more candidates by reducing the index and 11 more persons were permitted to appear out of which the respondents No. 4, 5 were selected. The challenge was made to the selection in the High Court which dismissed the writ petition. The appeal was filed which was allowed and selection was set aside. The apex Court in the aforesaid context laid down following in paragraphs 8,9, and 10:

"8. Selection of the candidates was to be made from amongst the workers who had been working in the Company for a long time. Although there may not have been any statutory rules governing recruitment to the posts in question, evidently a practice therefor was prevailing. Rule of the game for the said purpose was fixed, namely, 36 persons would be called for interview from amongst those who were successfully competed the written examination. The fact that the appellant obtained more than 73% marks in the written examination and topped the list is not in dispute. The fact that he was eligible for consideration for appointment in the post is also not in dispute. It has furthermore not been in dispute that the minimum qualifying marks in the written test was fixed. It is, however, not known whether the same was 50% or not, but then it was admittedly higher than 46%. The Managing Director of the Company in his counter affidavit categorically stated :

"Since the number of posts that were available to be filled up was 12, initially it was decided to call 36 candidates who had scored the highest marks in the written test and these candidates were called to appear for an interview on 22.3.2001. However, it was then decided by the Company to enlarge the zone of consideration to 1:4 and on the basis of this decision, call letters were again issued to the next 11 candidates, fixing a cut off mark of 46 out of 100. The candidates who were thus called for the interview were interviewed on 22.3.2001 by a panel consisting of the Company's Chairman, Managing Director, Under Secretary to the Department of Agriculture, Government of Kerala and an outside expert member from the Kerala State Productivity Council, Kalamassery...."

9. Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1 : 3 to 1 : 4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery.

10.It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant."

Coming to the selection on the post of Principal of graduate colleges as has come on the record (writ petition No. 44358 of 2007; Noopur Sharan and another) that all the candidates were called against the post of Principals of Graduate colleges without resorting to any kind of screening. Although proviso to Regulation 6(1) provides that the candidates be called in the ratio of 3 to 8 but without application of mind regarding the number of candidates to be called, all candidates were called which can again be said to be arbitrary exercise of power by the Commission. It has been stated that had the candidates been called in the ratio of 1:8, large number of candidates who have been called against the criteria to appear in the interview and selected could not have appeared even in the interview. It is also relevant to note that in writ petition No. 44358 of 2007, Dr. Mrs. Noopur Sharan a counter affidavit has been filed by the State of U.P. and Director of Higher Education and in the counter affidavit of State it has clearly stated in paragraph 3 m that commission had called the candidates in excess of ratio of 1:8. It is useful to quote the pleadings of the State in paragraph 3 m which is to the following effect:

" m. That however, it is pertinent to submit that under 2nd proviso of Regulation VI of the U.P. Higher Education Service Commission Regulation 1983, the Commission was bound to call the candidates maximum 8 times to the vacancies, but the Commission openly ignoring the aforesaid provisions, called all the candidates i.e. total 564 without making any screening or short listing. It appears that just to give under advantage to certain candidates of lower index, all the candidates were called for the interview. It is also pertinent to submit that Hon'ble Court in its judgment/order dated 7.8.2008 has made no observation of any kind. Since petitioners have emphasis on this lapse on the part of the Commission, therefore it is prayed that the Hon'ble Court may kindly be pleased to decide the writ petition on merit."

Learned counsel for the respondents although submitted that infact on account of number of absent candidates in the interview, the ratio of candidates who appeared in the interview was within 1:8 but the said submission does not rectify or condone the action of the Commission in calling the candidates in excess of number as required by Regulation 6(1) and fixed by Commission itself.

The next limb of submissions of the learned Counsel for the petitioners is that even the guidelines which were fixed by the Commission for screening of the candidates were not followed. Learned Counsel for the petitioners contends that certain candidates who could not have been called to appear in the interview as per own decision of the Commission were permitted to appear. In this context reference to the decision of the Commission taken on 13.5.2008 regarding calling of the candidates to the extent of 1:8 has been made. It has been further submitted that in the same decision index was fixed for the women candidates to be called as 34.9. It is submitted that the candidates having less index than 34.9 were also called to appear. It is stated that not even the candidates less than 34.9 index were called but they were also selected. In this context the name of four women candidates namely Dr. Seema Jain 34.1, Shashi Misra 34.1, Vijay Laxmi 34.9 and Neeta 34.5 has been mentioned who all were selected. Replying to the aforesaid submission, learned counsel for the Commission contended that subsequently a decision was taken on 22.5.2008 to reduce the index of female category candidates from 34.9 to 34.1 by its meeting dated 20.5.2008. The said resolution dated 22.5.2008 has been filed as Annexure-6 to the short supplementary counter affidavit.

The petitioner's counsel replying the aforesaid stand of the Commission had made two submissions; firstly index having already been fixed as 34.9 in the meeting dated 13.5.2008 which itself was more than the ratio of 1:8 there was no occasion to further reduce the index. He submits that infact ratio was not reduced which is clear from short counter affidavit which was sworn by Deputy Secretary Sri D.P. Chaturvedi and filed in writ petition No. 26230 of 2008 Dr. Ravi Prasad Srivastava Vs. State, copy of which has been filed as Annexure SA-1 to the supplementary affidavit of the petitioner. It is submitted that in the said affidavit, which was sworn on 29.5.2008, the index was mentioned for female candidate as 34.9 as was mentioned in paragraph 10, which is quoted below:

"10. That, in the same meeting, decision was taken to call the candidates for interview in the ratio of 8:1 and for this, the Commission has adopted the method of scrutiny, prescribed under Regulation 6 of the U.P. Higher Education Service Commission Regulation, 1983 and have called the candidates having minimum 34.9 and 35.1 marks in female and male category respectively."

It is submitted that had any decision was taken to reduce the index on 22.5.2008, the same ought to have been mentioned in the affidavit and non mentioning of the reduction of the index in the affidavit which was filed on 29.5.2008 belies the case of the Commission. Secondly it is submitted that there was no reason for reducing the index since according to index 34.9 itself, the number of female candidates who were being called were more than the ratio of 1:8 and calling the candidates who had secured less than 34.9 index is nothing but flagrant favouritism shown by the Commission to certain candidates to whom they wanted to select and actually selected. The names of such selected candidates have been noted above who were not in the zone of consideration as per the index and criteria fixed by the Commission on 13.5.2008.

The Commission which is a statutory body created by the Act is looked on with faith and trust by the society. The Higher Education which is imparted by the various institutions in the State is a tool of development of character building in the society. The Commission has to conform to the standards and criteria of screening which is professed by it. Commission cannot act in breach of criteria framed by it. In this context, it is useful to refer the law laid down by the apex Court in (1979) 3 SCC 489 Ramana Dayaram Shetty vs The International Airport Authority of India and ors. The apex Court in the said judgment laid down following in paragraph 4:

"4. This was, however, not to be the end of the travails of the 4th respondents. for, as soon as the appeal preferred by K. S. Irani against the order dismissing his notice of motion was rejected by the High Court on 19th October, 1977, A. S. Irani filed another suit being suit No. 8161 of 1977 in the City Civil Court, Bombay on 24th October,1977 seeking mandatory injunction for removal of the two snack bars put up by the 4th respondents. This was one more attempt by A. S. Irani to prevent the 4th respondents from obtaining the benefit of the contract awarded to them by the Ist respondent. He, however, did not succeed in obtaining ad- interim injunction and we are told that the notice of nation taken out by him is still pending in the City Civil Court."

The Commission thus has acted contrary to the standards and the criteria laid down by it. Action of the Commission acting contrary to the criteria has to be termed as arbitrary and unreasonable.

7.Selecting the candidates not fulfilling the minimum criteria:

One more substantial ground of attack of the petitioner is that the selection by the Commission of several candidates who do not fulfil the minimum criteria also indicate that Commission went out of way to help certain chosen candidates for whom every norms or criteria were given a go bye. The petitioner's counsel has referred to detail pleadings in both the leading writ petitions of post graduate college and degree colleges in this context and submitted that few instances which have been specifically pleaded by the petitioners are only tip of an iceberg. It is submitted that few instances which are referred to and brought on record indicate the manner and procedure in which Commission conducted the selection. We now refer to some instances where selection is being termed as a result of favouritism and violation of norms. Before we proceed to consider the specific instances given, it is relevant to note the minimum qualifications as laid down in the advertisement No. 39 for the post of Principals of post graduate colleges and degree colleges. Apart from educational qualifications, the principal of post graduate colleges should contain 15 years teaching experience and principal of degree colleges was required to have 10 yeas teaching experience. The qualifications were mentioned in the brochure of Advertisement No. 39 which were as follows:

osrueku ¼d½ Lukrd egkfo|ky; :0 12]000&18]300 vFkok :0 16200&22300 ¼[k½ LukrdksRrj egkfo|ky; :0 16]400&22]400 rFkk m0iz0 'kklu }kjk egkfo|ky;ksa ds v/;kidksa ds fy, le; le; ij vuqeU; HkRrsA Lukrd egkfo|ky;ksa ds izkpk;ksZa ds fy, fu/kkZfjr U;wure vgZrk,a% ¼1½ LukrdksRrj mikf/k esa U;wure 55 izfr'kr vad vFkok mlds lerqY; lkr lw=h; eki esa ch xzsMA izkpk;[email protected];[email protected];Z in ij orZeku esa fu;fer :i esa ;wfuoflZVh flLVe esa p;fur ,oa dk;Zjr vH;FkhZ dks LukrdksRrj Lrj ij 55 izfr'kr dh vfuok;Zrk ij cy ugha fn;k tk;sxkA vuqlwfpr [email protected] tutkfr ds vH;fFkZ;ksa rFkk ,sls vH;FkhZ ftUgksaus fnukWad 19&9&1991 ls iwoZ LukrdksRrj mikf/k /kkfjr dj yh gks] mUgs LukrdksRrj Lrj ij 5 izfr'kr vadksa dh NwV vuqeU; gksxhA ¼2½ ih0,p0Mh0 vFkok lerqY; mikf/kA ¼3½ fo'ofo|ky;[email protected]|ky;ksa vkSj laLFkkvksa esa v/;[email protected]'kks/k dk 10 o"kZ dk vuqHko] fdUrq f'k{k.k izf'k{k.k egkfo|ky;ksa esa Lukrd izkpk;Z gsrq 10 o"kZ ds 'kSf{kd vuqHko esa U;wure 5 o"kZ dk f'k{k.k&izf'k{k.k ikB;dzeksa esa f'k{k.k dk vuqHko vfuok;Z gksxkA LukrdksRrj egkfo|ky;ksa ds izkpk;ksZa ds fy, fu/kkZfjr U;wure vgZrk,a% ¼1½ LukrdksRrj mikf/k esa U;wure 55 izfr'kr vad vFkok mlds lerqY; lkr lw=h; eki esa ch xzsMA izkpk;[email protected];[email protected];Z in ij orZeku esa fu;fer :i esa ;wfuoflZVh flLVe esa p;fur ,oa dk;Zjr vH;FkhZ dks LukrdksRrj Lrj ij 55 izfr'kr dh vfuok;Zrk ij cy ugha fn;k tk;sxkA [email protected] tutkfr ds vH;fFkZ;ksa rFkk ,sls vH;FkhZ ftUgksaus fnukad 19&9&1991 ls iwoZ LukrdksRrj mikf/k /kkfjr dj yh gks] mUgs LukrdksRrj Lrj ij 5 izfr'kr vadksa dh NwV vuqeU; gksxhA ¼2½ ih0,p0Mh0 vFkok lerqY; mikf/kA ¼3½ mPp f'k{kk dh laLFkkvksa esa v/;[email protected]'kks/k dk 15 o"kZ dk vuqHko] fdUrq izf'k{k.k egkfo|ky;ksa esa LukrdksRrj izkpk;Z gsrq 15 o"kZ ds v/;kiu vFkok iz'kklfud vuqHko 'kks/k ftlesa U;wure 5 o"kZ dh f'k{k.k&izf'k{k.k ikB;dzeksa esa f'k{k.k dk vuqHko vfuok;Z gksxkA The teaching experience of the candidate which could be counted was the experience acquired as regular teacher or Ad-hoc teacher and teaching experience in any other capacity was not to be counted. The Commission vide its letter dated 22.6.2007 (filed as Annexure S.A. 14 in writ petition No. 34198 of 2008) has informed about the criterion fixed by the Commission in its 747th Meeting regarding experience which can be counted towards minimum qualification, relevant extract of which is as follows:-

"vk;ksx dh 747 dh cSBd esa LukrdksRrj izkpk;Z ij p;u gsrq lkbM ykbu vuqeksnu ds dze esa dk;kZy; }kjk mBk, x, fcUnqvksa ij fcUnqokj fuEu fu.kZ; fy, x,%& (A) ............

(B) ............

(C) ...........

(D) ...........

(E) dsoy rnFkZ ,oa fu;fer :i ls '[email protected];ksx }kjk p;fur ,oa osrueku esa fu;qDr izoDrkvksa dk f'k{k.k vuqHko gh ekU; gksxkA lkFk gh vkj-,- lkbfVLV iwy vkfQlj ,oa ih-Mh-,Q- ds f'k{[email protected]'kks/k vuqHko dks tksM+k tk;sxkA (F) ts0vkj0,[email protected],l0vkj0,Q0 dsUnz ,oa jkT; ljdkj ds v/khu fdlh vU; izkstsDV Qsyks ds vUrxrZ mikf/k izkfIr gsrq 'kks/k vuqHko vkfn dks U;wure vgZrk ds vUrxZr tksM+k ugha tk,xkA

--------"

Now we proceed to consider the instances as pleaded for.

(1)Dr. Ramesh Chand Pathak (For the post of Principal registration No. 39/PMG/314) who has been selected at 30th position. Annexure-S.A. 12 is the photocopy of the application form by Dr. Ramesh Chand Pathak obtained under the Right to Information Act Act. Dr. Pathak claimed ad-hoc lecturer from 1.5.1991 to 30.6.1991, as temporary Lecturer from 13.12.1990 to 30.4.1991 and from 1.7.1992 as a regular Lecturer. As per the norms fixed by the Commission period of experience and requirement as adhoc lecturer should be taken. Thus service of Dr. Pathak could have been counted from 1.5.1991 and counting the experience from 1.5.1991 his experience on the last date of application i.e. 3.4.2006 was less than 15 years. One more relevant document has been filed by the petitioner which has been obtained under Right to Information Act at page 163 of the Supplementary affidavit which is a list prepared by the Commission where the experience of the candidates including other relevant details and registration No. has been mentioned. Against the name of Dr. R.C. Pathak experience mentioned as 14 years and 11 months, who has been shown to have been selected. Thus, the Commission when complied the details including the details of experience and had supplied under Right to Information Act, the experience shown by the Commission of Dr. R.C. Pathak is 14 years 11 months which is in accord to norms for computing the experience but in spite of Dr. R.C. Pathak not being fulfilling minimum qualification, he has been called for interview and selected which shows that Commission has not followed its own guidelines and norms which is nothing but arbitrary exercise of power.

Learned Counsel for the selected candidates sought to contend that even experience as temporary Lecturer is experience which is relevant. We need not enter into the said issue at present since the facts indicates arbitrary action on the part of the Commission in screening and calling candidates. Learned Counsel for the petitioner further stated that Commission infact has rejected the experience of several candidates on the basis that same is temporary or on honorarium or on self financed scheme. In the rejoinder affidavit filed by the petitioner in writ petition No. 34198 of 2008, the petitioner has brought on the record the papers of the fixation of salary of Dr. Ramesh Chandra Pathak as Annexure-2 to the rejoinder affidavit for grant of revised payscale from 1.1.1996 wherein the date of appointment has been shown as 1.5.1991.

Dr. Shashi Misra: Dr. Shashi Misra has been selected as Principal of post graduate college who had secured index less than 34.9. The photocopy of Form of Dr. Shashi Misra has been filed as Annexure-13 to the Supplementary affidavit which indicates that Dr. Shashi Misra has claimed her experience from 1.7.1987 to 30.4.1990 on honorarium basis and has been shown as permanent lecturer from 1.7.1992. Experience of honorarium being not admissible why she was called is unexplained. One more relevant facts which has been highlighted is that Smt. Shashi Misra in the column of her marksheet of M.A. Previous year has shown her marks 225 out of 400 i.e. 56.2% and in the column of Annexures, it has been mentioned Anuplabdh (Missing). In the bottom of the form, it has been mentioned that marksheet of High School and Intermediate, graduation and post graduation duly attested be submitted failing which the application be rejected. Condition on the form is as follows:

"gkbZ Ldwy rFkk b.VjehfM,V ijh{kkvksa ds vadi=ksa ds lkFk Lukrd ¼izFke] f}rh;] r`rh; rFkk prqFkZ½ rFkk LukrdksRrj ¼izFke ,oa f}rh;½ Lrj dh ijh{kkvksa ds o"[email protected] vad i=ksa dh jktif=r vf/kdkjh }kjk izekf.kr rFkk vkosnd }kjk LogLrk{kfjr izfr;kWaa vfuok;Zr% layXu djsa vU;Fkk vkosnu&i= viw.kZ ekuk tk;sxk rFkk fujLr dj fn;k tk;sxkA"

The petitioner having not submitted marksheet of M.A. Previous her application was liable to be rejected. More so the percentage of the marks for the post of principal in post graduate college is 55% which is minimum qualification fixed. In writ petition No. 42445 of 2008 Dr. Zarin Nagar Vs. State, Smt. Shashi Misra has been impleaded as respondent no. 7. In the counter affidavit filed on behalf of respondent no. 7, the facts have been brought on record that Smt. Shashi Misra was suspended on the ground that in the verification report received from Dr. Ram Manohar Lohiya Awadh Vishwavidyalaya Faizabad in M.A. I year, the marks of the petitioner were shown as 179/400 whereas in the self attested copy of the marksheet she has claimed her total marks as 225/400. The management issued notice to Smt. Shashi Misra as to why proceeding be not recommended against the petitioner for filing forged marksheet. Smt Shashi Misra case is that university has not provided copy of the marksheet when she applied under the Right to Information Act on 14.11.2011. It has been further stated that the suspension of Shashi Misra was disapproved and committee of management has filed writ petition No. 697 of 2011 (S/B) whereas High Court set aside the order of vice Chancellor and directed the Vice Chancellor to pass fresh order after giving opportunity to the principal and committee of management. It has been further stated that Smt. Shashi Misra has also filed writ petition No. 8 of 2012 praying for quashing the show cause notice of the management which petition is pending. Learned counsel for the selected candidates has contended that since the issue as to whether the marksheet of M.A. Previous Smt. Shashi Mishra was forged or not is engaging attention of the Lucknow Bench hence, in this writ petition, the said issue be not gone into. We are not entering into the issue as to whether the marks which were disclosed in the Form of Shashi Misra in M.A. Previous was correct or not. However, in view of the fact that Smt. Shashi Misra did not file her marksheet of M.A. Previous mentioning the same as missing her form was liable to be rejected by virtue of the condition itself contained in the application form as noted above. The Commission instead of rejecting the form called the candidates for interview and selected her which again shows arbitrariness in exercise of power by the Commission.

Now we come to the instances given with regard to selection of Principal of graduate colleges. Reference of one Dr. Ram Avtar Singh Registration Uo. UGM/038 has been made who claimed his experience of only seven years six months and 29 days. The application form of Ram Avtar Singh has been filed as Annexure - S.A.9 to the writ petition No. 44358 of 2007 where he has mentioned his experience as Lecturer of four years six months 29 days and experience of Research Associates as three years. From the application form filed as Annexure S.A. 9, it is clear that candidates even does not claim 10 years experience and he has been called for interview and selected.

Dr. Ikbal Habib had claimed only experience of 8 years and nine months whose application form has been filed as Annexure-10. The form indicates that he has shown his experience Gradulate classes as (i) temporary Lecturer of 9 years (ii) Ad-hoc Lecturer of 11 years on Honorary basis. His experience in post-Graduate classes is temporary 4 years and Ad-hoc 8 years on Honorary basis. Excluding experience gained on Honorary basis, his total experience on temporary basis comes only 9 years. The Commission has not properly scrutinised his application. The form does not indicate that he fulfils the qualifications and without appropriate scrutiny according to the norms, candidates have been selected. One Udyan Misra 39 UGM/29 has shown his experience in application total nine years 8 months still he was called to appear and selected. Calling such candidates who did not fulfil the educational qualification as per his application form is nothing but an act of favouritism and arbitrary conduct of process of selection.

One Dr. Suresh Jain Registration No. 36 UBM/95 has also shown total experience in his form as seven years six months and 20 days still he was called. His experience shown was from 13.1.1996 in the application form and in no manner he could complete 10 years. When the above candidate claimed experience of 7 years six months and 20 days in Graduate classes and 5 years 8 months 21 days shown experience in post graduate classes and both the experience beginning from 13.1.1996. He could not have been even called for the interview but he has not only been called but he has been selected. A supplementary counter affidavit of Dr. Suresh Jain has been filed dated 16.1.2012 replying the allegations of supplementary affidavit of Dr. Noopur Saran in writ petition No. 44358 of 2007. In para 6 of Supplementary counter affidavit following has been stated:

(a) initially he had applied against Adv. No. 36 of 2003 and as per its cut of date he had 7 years 6 months and 20 days. Advertisement No. 36 of 2003 was cancelled and process was initiated on basis of Advertisement dated 24.2.2005 and it was stipulated that those who had applied in pursuance of Advertisement No. 36 need not apply a fresh and eligibility be seen from the last date of receipt of application form i.e. 3rd April 2006 and he (Dr. Suresh Jain) had 10 years 2 months and 20 days experience.

(b) he had five years research experience. In so far as (a) is concerned it is true that Dr. Suresh Jain applied against Advertisement No. 36 with Registration No. 36/UGM/95 and he was not required to apply again and the eligibility is to be seen on the last date of application as per Advertisement No. 39 of 2005. Advertisement No. 39 dated 24.2.2005 has been filed as Annexure-1 to writ petition No. 34198 of 2008 which provides vide para 5 the last date of receipt of application as 26.3.2005. The corrigendum for Advertisement 39 was issued on 23.2.2006 by which last date was extended to 3.4.2006.

From the application form of Dr. Suresh Jain Annexure-12 to the Supplementary affidavit in writ petition No. 44358 of 2007, it is clear that Dr. Jain is claiming his experience of graduate classes of seven years six months 20 days w.e.f. 13.1.1996 as temporary Lecturer. He has further claimed experience in post graduate classes from 13.1.1996 to 14.9.2001 again as temporary Lecturer. The experience of temporary Lecturer was not admissible as per resolution of the Commission that experience as permanent Lecturer and as ad-hoc Lecturer can only be considered. Accordingly Dr. Jain ought not to have been called for interview by the Commission.

In so far as (b) is concerned in which research experience of 5 years have been claimed suffice it to say that in application form no such experience of research was even claimed nor any certificate of research experience is claimed to have been attached, thus any experience which is not even claimed in the application form can not be looked into or considered.

Thus, it is clear that Dr. Suresh Jain did not fulfil the minimum qualification for the post of principal Graduate College, but he was called to appear in the interview and was also selected, which is glaring example of favouritism and arbitrariness in conduct of selection process.

The Commission called the above candidates who neither fulfilled the minimum qualification of having 15 or 10 years experience of teaching and most of them even did not claim in their application form that they have 15 or 10 years experience, and selected them, whereas the candidature of large number of applicants was rejected on the ground that they do not have 10 years teaching experience. In writ petition No. 44358 of 2006, in the supplementary affidavit sworn on 10.5.2011 detail pleading has been made and Annexure-S.A-8 has been filed which is a list issued by the Commission of 33+69=102 applicants whose application has been rejected. In column No. 5 reason has been given for rejection of application and the application of 68 candidates out of above 102 candidates have been rejected on the ground that teaching experience is less than 10 years. The application of many candidates have also been rejected on the ground that their teaching experience is in Self Financing Institutions.

The above facts clearly supports the submission of the petitioner that Commission has called several candidates to appear in interview who did not fulfil the minimum qualifications and also selected them whereas candidature of large number of applicants have been rejected on the ground of lack of experience which is nothing but an act of favouritism and nepotism.

With regard to one candidate Phool Chand Singh, special mention is necessary who has been selected. It has been stated in the Supplementary affidavit that he did not fulfil the qualification for selection and his regularisation as Lecturer was rejected by Director Higher Education U.P. by order dated 23.6.1992 and 19.5.1998 on the ground of minimum educational qualification. It is alleged that he has given false affidavit that he was working as permanent Lecturer since 19.5.1988. It is stated that from his application, it is clear that he had done B.Ed in 1991 from Durgaji post graduate in which he alleged himself as permanent Lecturer from 25.1.1988.

One more fact is mentioned that against Phool Chand Singh, the history sheet has been maintained at Thana Police station Kotwali, district Azamgarh in which seven criminal cases have been mentioned including case No. 217 of 1989 under sections 147,148,149 302 I.P.C. It appears that the fact that he was facing criminal cases was brought before the High Court and the High Court directed the Higher Education Services Commission to consider the matter. Higher Education Services Commission by its resolution dated 22.2.2009 rejected the challenge and held that Phool Chand Singh has not been convicted by any Court. No appropriate consideration of eligibility has even been shown to have been done by the Commission. It has been further pointed out that the said candidate has been subsequently restrained by the High Court by order dated 22.12.2011 in writ petition No. 60280 of 2010 Ashwani Kumar Rai Vs. State of U.P. and others. It is useful to quote the order dated 22.12.2010 :

"A request has been made on behalf of Shri S.M. Mishra to pass over the case as he he has not come to the Court.

The petitioner is officiating as Principal of 'Sarvodaya Post Graduate College, Ghosi, District Mau'. He has challenged the placement and appointment of Dr. Phool Chandra Singh-respondent no. 5 represented by Shri S.M. Mishra as Principal of the College. Dr. Phool Chandra Singh has joined on 6.10.2010.

The appointment of respondent no. 5 has been challenged on the ground, that he does have consistent good academic record, and that he misrepresented the Commission that he possessed the requisite experience as regular teacher, whereas his services were not regularised. The appointment has also been challenged on the ground, that the respondent no. 5 has a criminal background.

Shri S.M. Mishra has filed vakalatnama on behalf of respondent no. 5 in this case on 06.10.2010, but he has not filed any reply to the averments made in the writ petition.

After more than one year the State has filed a counter affidavit, verifying from the letter of the Superintendent of Police, Azamgarh dated 24.11.2011, that Dr. Phool Chandra Singh, Reader in Sasya Vigyan of Sri Durgaji Post Graduate Degree College, Chandeshwar, Azamgarh has a long criminal record. Eight cases were registered against him, namely Case Crime Nos. 107 of 1986 under Section 342 IPC, P.S. Sidhari; 217 of 1989 under Sections 147/148/149/302/504 IPC, P.S. Sidhari; 17 of 1996 under Section 25 of Arms Act, P.S. Sidhari; 471 of 1995 under Section 363 IPC, P.S. Sidhari; 109 of 1980 under Section 147/148/149/323/304 IPC, P.S. Atrauliya; 123 of 1983 under Sections 147/148/323/427/504/506 IPC, P.S. Atraulia, in which he was convicted and was sentenced for 6 months rigorous imprisonment on 15.9.11987; 134/1987 under Sections 144/504 IPC, P.S. Atrauliya and 64/1996 under Section 395/397/364 IPC, P.S. Kotwali.

Prima facie we find substance in the contention of learned counsel for the petitioner, that with the aforesaid criminal record, the respondent no. 5 is not entitled to continue as Principal of the College. The U.P. Higher Education Service Commission as well as the State committed gross negligence in selecting a person with such a criminal back ground to serve as Principal of the College.

We do not find any good ground to adjourn the matter as Shri S.M. Mishra has entered appearance on 6.10.2010 and has not filed any reply.

Until further orders, the respondent no. 5 is restrained to work as Officiating Principal of the Sarvodaya Post Graduate College, Ghosi, District Mau."

8.Women candidates selected in Men Category illegally shifted in select list of Women Category:

The petitioners have further contended that five women candidates in the men category have been placed in the merit list of female category. The explanation sought to be given by the Commission to the said selection is that those candidates have requested that they should be considered in the female category. Regulations 6(4) provides preparation of two separate list of selected candidates. Regulation 6(4) is quoted below:

"6 (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 shall not be more than three times the number of vacancies or the number of vacancies plus four whichever is more."

The Commission is obliged to prepare two separate lists of selected candidates one of the women and other a general list. The name of women candidates cannot be excluded from the General list and it further requires the name of women candidates who specifically opt not to be posted in the women college shall not be included in the list of women candidates, neither there is any discretions or choice of candidates not to be included in the general list. By adopting this arbitrary procedure the Commission has selected five candidates in the Men's list who could not have been included in the select list and further displaced five women candidates from the women's list who could otherwise have been selected. This is again clear case of commission acting contrary to the regulations and act of manipulation to select candidates who were not entitled to be selected and to exclude candidates who were to be selected. The details of five women candidates who were selected in Men category and wrongly shifted in women category and the details of five candidates who were entitled for selection in women category have been mentioned in para 29 of supplementary affidavit in writ petition No. 44358 of 2007.

9.Whether the Procedure Adopted by the Commission was fair, reasonable and in accordance with the provisions of the Act, Regulations and Guidelines:

While considering the issues no. 4 to 8 we have elaborately examined all aspects of the selection procedure adopted by the Commission. Our answer to issues no. 4 to 8 shall also decide the present issue. Following conclusions have been drawn while deciding issues No. 4 to 8.

(I)The Commission did not set out criteria, minimum standards and guidelines for conduct of viva-voce test which was its statutory obligation under Regulations 6(2) of the Regulations. The guidelines dated 6.10.1983 framed by the Commission in purported exercise of power under Regulation 6(2) does not satisfy the statutory requirements of Regulations 6(2) since two essential components i.e. criteria and minimum standards are missing in the guidelines dated 6.10.983. No other materials have been brought on record by the Commission to prove that requirement of Regulation 6(2) have been complied with hence, We conclude that Commission has proceeded to hold the selection on the post of Principals, Graduate and post graduate colleges in response to advertisement No. 39 of 2005 in violation of statutory requirements of Regulation 6(2).

(II) The Commission while screening the candidates to appear in the interview for the post of principals post graduate colleges which was held in June, 2008 have changed the screening guidelines on 10.4.2008 without any valid reason forthcoming from the respondents, the change of criteria subsequent to start of process of recruitment and before holding of the interview indicates that criteria was changed to help certain candidates who were not normally coming in the zone of consideration. The Commission has also called the candidates for interview of the principals of post graduate colleges in excess of the number of the candidates as has already been decided by the Commission in its meeting dated 13.5.2008. In meeting dated 13.5.2008, the Commission decided to call the candidates to the ratio of 1:8 i.e. 8 candidates against one vacancy. The Commission itself has provided the information under the Right to Information Act which has been brought on record in leading writ petition that had criteria of 1:8 followed, 95 male candida5tes and 18 female candidates could not have been called to appear in the interview. Out of 95 those candidates who were called beyond the ratio , 11 were selected in the male category and out of 18 female category candidates who could not have been normally called, four have been selected in the female category. With regard to selection of principals of graduate colleges without resorting to criteria fixed for calling the candidates which was fixed by the Commission in the year 2006 all candidates were called without conducting any screening, whereas the power of Commission to call the candidates to appear in in the interview is hedged by Regulation 6(1) second proviso. In the women category candidates although in the meeting dated 13.5.2008, the Commission has fixed the index for women as 34.9 but inspite of fixing of index, large number of female category candidates whose index mark was below 34.9 have been called. The subsequent decision of the Commission dated 22.5.2008 to treat the index 34.9 as 34.1 being not informed by any reason or basis was arbitrary.

(III)While considering the issues No. 7, several instances have been noted where the candidates who even did not fulfil the minimum qualifications have been called to appear in the interview and have been finally selected. Copy of the application form submitted by said applicants has been brought on record after having been obtained under the Right to Information Act. Several applicants have been called who even did not claim fulfilling the criteria in their application as was apparent from details of the experience given by them in their application. Calling the candidates who did not fulfil the minimum qualifications and selecting them clearly proves that the Commission has breached all norms and criteria to suit certain private interest and the above act of Commission support the submission of the petitioners that those candidates were called and selected for extraneous consideration.

(IV)Five women candidates whose applications were against the post of principals male category were selected and were required to be included in the merit list of male category but they have been illegally shifted against the post of Principal of women category for adjusting five candidates of men category in the merit list who could not have been selected in the men category and inclusion of five women category against the principal female category, five candidates of female category went out of the select list. The said action of the Commission on the pretext that they had made applications giving their choice to be considered against female category principal was not in accordance with the Act and Regulations.

Apart from the above it has also been found that the post of Principal being single cadre post and the provisions of Reservation being held not to be applicable by Supreme Court in its judgment State of U.P. Vs. Bharat Singh (supra) still the candidates under the freedom fighter quota and physically handicapped category have been selected who otherwise could not have been selected on merit. Details discussions pertaining to applicability of horizontal reservation shall be made in subsequent paragraphs of this judgment.

In view of the aforesaid discussions and conclusions it is clearly proved that Commission adopted unfair and illegal procedure in conducting the selection of principal post graduate colleges and graduate college and procedure adopted by the Commission was neither fair reasonable nor in accordance with the provisions of Act, Regulations and guidelines, Hence, the aforesaid issue is also decided in favour of the petitioner.

Applicability of Horizontal Reservation:

The U.P. Higher Education Service Commission had issued Advertisement Nos.33, 34, 35 and 36 dated 29th May, 2003 inviting applications against the post of Principal of Postgraduate/Degree Colleges both for male and female. The advertisement provided that number mentioned against the post for general category, other backward class, scheduled caste and scheduled tribe may increase or decrease. The advertisement further provided that there shall be reservation for physically handicapped, dependent of freedom fighter and ex-serviceman category according to the Act and orders issued by the Government. After this Court passed an interim order in Writ Petition No.38714 of 2003 Dr. (Smt.) Shikha Chaturvedi vs. U.P. Higher Education Service Commission] directing that the post of Principal in Postgraduate/Degree Colleges should be treated as non reserved post and selection should be held purely on merit, fresh advertisement was issued being Advertisement No.39/2005. The Advertisement No.39/2005, dated 24th February, 2005 did not mention any kind of reservation either social or horizontal. The Commission proceeded to conduct selection on the basis that U.P. Act No.4 of 1994 is not applicable, however, in the final result the selection was made in the categories of physically handicapped and dependent of freedom fighter. The candidates selected in the categories of dependent of freedom fighter and physically handicapped were not otherwise in the merit. Specific challenge was made to the said reservation and following was pleaded in paragraph 32 of the supplementary affidavit dated 17th April, 2011 filed in Writ Petition No.34198 of 2008 (Dr. Karuna Nidhan Upadhyay and others vs. State of U.P. and others):-

"32. That one more fundamental error had been committed by the respondent No.3, on one hand no vertical reservation was given but arbitrarily the reservation was given to the physically challenged and dependents of freedom fighter candidates which itself reflects the arbitrary and unreasonable action of the respondent No.3."

The Commission has filed a supplementary counter affidavit stating that reservation for freedom fighter and physically handicapped is horizontal and not based on the caste and such candidates are entitled for getting benefit in their own respective category. Referring to the judgment of this Court dated 25th August, 2008, it has been stated that reservation for physically handicapped and dependent of freedom fighter categories was affirmed by this Court. Following was stated in paragraph 29 of the supplementary counter affidavit:-

"29. That in reply to averments made in paragraph no.32 of the supplementary affidavit it is submitted that the reservation for freedom fighters and physically handicapped is horizontal reservation and not based on caste and such candidates are entitled for getting benefit in their own respective category and since there is no reservation on the post of Principal the benefit of physically handicapped and freedom fighter who are confirm separate category was provided and same was even affirmed by this Hon'ble Court vide judgment and order dated 25.8.2008 and the said order so for reservation is concerned has already been affirmed by the Hon'ble Supreme Court."

Let us first examine as to whether Division Bench of this Court vide judgment and order dated 25th August, 2008 in Writ Petition No.38714 of 2003 [Dr. (Smt.) Shikha Chaturvedi vs. U.P. Higher Education Service Commission] had affirmed the horizontal reservation. It is useful to quote the judgment and order dated 25th August, 2008, which is to the following effect:-

"Heard learned counsel for the petitioners and learned Standing Counsel for the State respondents. Shri H.N. Singh appears for U.P. Higher Education Service Commission.

By these writ petitions, the petitioners have challenged the advertisement Nos.33, 34, 35, and 36 issued by U.P. Higher Education Service Commission on 29.5.2003 advertising the post of Principals in Post Graduate Colleges. The U.P. Higher Education Service Commission had applied the rules of reservation to the posts.

By an interim order dated 1.9.2003, this Court was of prima facie opinion that in view of the judgment of Supreme Court in Indra Sawhney vs. Union of India, AIR 1993 S.C. 477, the reservations cannot exceed 50% of the posts and since the post of principals of Post Graduate Colleges are single post, the rules of reservation would not apply. This Court directed:- ''Hence we direct that the post of Principal in the Post Graduate Colleges and Degree Colleges in U.P. should be treated as non reserved post and selections should be held purely on merit on the said posts till further orders.' It is contended that a separate list was issued for giving reservations for the dependents of freedom fighter and disabled persons. These reservations are not caste based reservation and are horizontal reservations for which provisions have been made separately.

Sri H.N. Singh, learned counsel appearing for U.P. Higher Education Service Commission, states that there is no cadre of Principals in Post Graduate Colleges. These posts are not interchangeable or transferable. The Supreme Court, in Post Graduate Institute of Medical Education & Research, Chandigarh and others, (1997)6 SCC 283, has held that such posts are single post and that the rules of reservations will not apply to these posts.

We find that after the decision of the Supreme Court and issuance of fresh advertisement and the corrigendum, and the declaration of results without applying the rules of reservation under the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes) Act 1994, the reliefs claimed in these writ petitions have become infructuous.

All these writ petitions are accordingly dismissed as infructuous."

A perusal of the aforesaid judgment indicates that only contention was noted that separate list was issued for giving reservations for the dependents of freedom fighter and disabled persons and the writ petition was dismissed as having become infructuous. The Division Bench did not decide the issue nor affirm the horizontal reservation.

The Apex Court in the case of State of U.P. vs. Bharat Singh (supra) decided on 8th March, 2011 in pursuance of which judgment these petitions are being reheard and decided, has already laid down following in paragraph 39:-

"39. It is abundantly clear from the above that the attribute of interchangeability and transferability is missing in the case of Principals - in much the same measure as in the case of teachers, in the lower cadre. We have, therefore, no hesitation in holding that there is no cadre of Principals serving in different aided and affiliated institutions and that the Principal's post is a solitary post in an institution. Reservation of such a post is clearly impermissible not only because the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 provides for reservation based on the `cadre strength' in aided institutions but also because such strength being limited to only one post in the cadre is legally not amenable to reservations in the light of the pronouncement of this Court to which we shall presently refer."

The Apex Court in the above judgment has held that there is no cadre of post of Principal and the post of Principal is a solitary post in an institution. Whether on a solitary post of Principal, horizontal reservation is to be applied, is the question to be answered.

In the counter affidavit filed in Writ Petition No.34198 of 2008, the letter of the Director of Education dated 7th May, 2007 has been referred to by which letter the Commission was informed that as per the Government order dated 22nd October, 2001 there is arrangement of horizontal reservation to the extent of 3% for physically handicapped and 2% for dependent of freedom fighter. The total number of the posts for Postgraduate/Degree Colleges were also mentioned and against the post advertised, four posts were mentioned for physically handicapped and three posts for dependent of freedom fighter. The Government order dated 22nd October, 2001 was issued by the State Government clarifying various queries regarding reservation. Clarification No.5 of the Government order dated 22nd October, 2001 clearly mentioned that if there is only one post in the cadre, there shall be no reservation and in Clarification No.6 details regarding horizontal reservation were mentioned. Clarification Nos.5 and 6 of the Government order dated 22nd October, 2001 were to the following effect:-

"¼5½ ;fn fdlh laoxZ esa rhu in gSa vkSj orZeku esa ,d fjDr gS rks mls ,dy in ugha ekuk tk;sxk] D;ksafd laoxZ eas rhu in gSaA ,dy in dk rkRi;Z ;g gS fd laoxZ eas ek= ,d gh in gks ,sls ,dy in ij vkj{k.k izo`Rr ugha gksxk vkSj bl in ij lkekU; oxZ ls fu;qfDr dh tk;sxhA ¼6½ mRrj izns'k yksd lsok ¼'kkjhfjd :i ls fodykax] LorU=rk laxzke lsukuh ds vkfJr vkSj HkwriwoZ lSfudksa ds fy, vkj{k.k½ vf/kfu;e] 1993 esa mRrj izns'k vf/kfu;e la[;k 3 lu~ 1997] mRrj izns'k v/;kns'k la[;k 11 lu~ 1999 rFkk mRrj izns'k vf/kfu;e la[;k 29 lu~ 1999 }kjk fd;s x;s la'kks/kuksa ds vuqlkj yksd lsokvksa vkSj inksa esa] lh/kh HkrhZ ds izdze ij] fuEufyf[kr oxZ ds O;fDr;ksa dks muds lEeq[k vafdr izfr'kr esa vkj{k.k iznku fd;k tkuk visf{kr gS%& ¼1½ LorU=rk laxzke lsukuh ds vkfJr ds fjfDr;ksa dk 2% fy, ¼2½ HkwriwoZ lSfudksa ds fy, fjfDr;ksadk 5% ¼lewg Þdß ,oa Þ[kß dh fjfDr;ksa ds flok;½ ¼3½ ¼d½ n`f"[email protected] n`f"V ls xzflr jkT; ljdkj }kjk vf/klwfpr inksa esa fjfDr;ksa dk 1% ¼[k½ Jo.kgkl ls xzflr O;fDr;ksa ds &rnSo& fy, ¼x½ pyu fdz;k lEcU/kh fu%'kDrrk &rnSo& ;k izefLr"dh; vax?kkr ls xzflr O;fDr;ksa ds fy, mi;qZDr vkj{k.k gkfjtkUVy gksxk vFkkZr ;fn mi;qZDRk oxksZa esa ls fdlh oxZ dk p;fur vH;FkhZ vuqlwfpr tkfr dk gks rks mls vuqlwfpr tkfr ds dksVk esa] ;Fkkvko';d lek;kstu djrs gq, j[kk tk;sxkA ;fn og vH;FkhZ vuqlwfpr tutkfr dk gks rks mls vuqlwfpr tutkfr ds dksVk esa] ;Fkkvko';d lek;kstu djrs gq,] j[kk tk;sxkA ;fn og vH;FkhZ vU; fiNM+k oxZ dk gks rks mls vU; fiNM+k oxZ ds dksVk esa] ;Fkkvko';d lek;kstu djds] j[kk tk;sxkA ;fn og [kqyh izfr;ksfxrk okyh dVsxjh vFkkZr lkekU; oxZ dk gks rks mls ml oxZ esa] ;Fkkvko';d lek;ktu djds] j[kk tk;sxkA ;fn dksbZ fjfDr mi;qDr vH;FkhZ dh vuqiyC/krk ds dkj.k fcuk Hkjh jg tkrh gS rks mls vkxkeh HkrhZ ds fy, vxzuhr fd;k tk;sxkAß Neither the Government order dated 22nd October, 2001 nor the letter of Director of Education dated 7th May, 2007 can be read to mean that even if there is one post in the cadre, there shall be horizontal reservation. The letter dated 7.5.2007 was issued for providing horizontal reservation by clubbing the posts of principal male and female separately for post graduate and graduate colleges, whereas in view of the judgment of the Supreme Court in State of U.P. Vs. Bharat Singh (supra) the post of principal is single cadre post and cannot be clubbed. The very basis of letter dated 7.5.2007 having been knocked out, the said letter cannot be relied by the Commission for applying horizontal reservation.

The concept of horizontal reservation and social reservation has been elaborately explained by the Apex Court in the case of Indra Sawhney vs. Union of India and others. In the said case the Apex Court held that horizontal reservations are referable to Article 16(1) of the Constitution of India whereas social reservations are referable to Article 16(4) of the Constitution of India. Following was laid down by the Apex Court in paragraph 812 of the said judgment:-

"812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure."

The concept of horizontal reservation again came for consideration before the Apex Court in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission reported in (2007) 8 SCC 785. Following was laid down in paragraphs 7, 8 and 9:-

"7. A provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta vs. State of U.P. [1995 (5) SCC 173] thus :

"The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/ accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.)"

[Emphasis supplied]

8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : "For SC : 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus : "For SC : 21 posts for men and 9 posts for women, in all 30 posts". Obviously, there is, and there can be, no reservation category of 'male' or 'men'.

9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example :

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]"

The judgments of the Apex Court, which have considered the horizontal reservation, were cases where there were plurality of the post in the cadre. In a case where there is single cadre post, 3% reservation for physically handicapped and 2% reservation for dependent of freedom fighter cannot be given effect to.

From the above, it is clear that post of Principal being solitary post in an institution horizontal reservation also cannot be applied and selection in the categories of physically handicapped and dependent of freedom fighter was impermissible.

11.Estoppel by Conduct:

The submission, which has been put in forefront by learned counsel for the Commission as well as learned counsel for the selected candidates, is that petitioners having participated in the interview without raising any protest, they cannot be permitted to challenge selection process, after having taken a chance to get selected. Reliance has been placed by learned counsel for the respondents on the judgments of the Apex Court in the cases of Om Prakash Shukla vs. Akhilesh Kumar Shukla and others reported in 1986 Supp. SCC 285, Madan Lal vs. State of Jammu and Kashmir reported in (1995)3 SCC 486, Sunita Agrwal vs. Shakuntala Shukla and others reported in (2002)2 SCC 615, Chandra Prakash Tiwari vs. State of Hariyana reported in (2002)6 SCC 127, K.H. Siraj vs. High Court of Karnatka reported in (2006)6 SCC 395 and Dhananjay Malik vs. State of Uttranchal reported in (2008)4 SCC 171.

The Apex Court in Om Prakash Shukla's case (supra) laid down following in paragraph 24:-

"24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination."

In Madan Lal's case (supra), the Apex Court laid down following in paragraph 9:-

"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Upto this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., (AIR 1986 SC 1043), it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."

In Chandra Prakash Tiwari's case (supra) the concept of estoppel by conduct was examined by the Apex Court. Dealing with the estoppel by conduct, following was laid down by the Apex Court in paragraphs 30, 31, 32, 34 and 35 of the judgment:-

"30. Significantly, on a brief reference to factual matrix interviews were held under 1965 Order which had participants participating without demur or protest and the judgment impugned itself records that as regards the interviews there has been no mala fides neither any bias nor any favouritism. Even the 50% marks earmarked for interview stands accepted by the impugned judgment. The principal ground of challenge thus against the judgment impugned is that the Regulation of 1994 was applied by the High Court and the other ancillary reason being that clubbing was not permissible. It is at this juncture the conduct in the matter of participation in the selection process without demur ought to be noticed, as strongly propagated by Dr. Dhawan, which in turn brings in to a discussion of estoppel by conduct.

31. This Court in Tata Iron & Steel Co. Ltd. v. Union of India and Ors. (2001 (2) SCC 41) dealt with the issue of estoppel by conduct rather exhaustively and one of us (Banerjee, J) in paragraphs 20 and 21 stated the law pertaining thereto as below:-

"20. Estoppel by conduct in modern times stands elucidated with the decisions of the English Courts in Pickard v. Sears (1837: 6Ad. & El. 469) and its gradual elaboration until placement of its true principles by the Privy Council in the case of Sarat Chunder Dey v. Gopal Chunder Laha (1891-92) 19 I.A. 203) whereas earlier Lord Esher in the case of Seton, Laing Co. v. Lafone (1887: 19, QBD 68) evolved three basic elements of the doctrine of Estoppel to wit:

"Firstly, where a man makes a fraudulent misrepresentation and another man acts upon it to its true detriment: Secondly, another may be where a man makes a false statement negligently though without fraud and another person acts upon it: And thirdly there may be circumstances under which, where a misreprestation is made without fraud and without negligence, there may be an estoppel."

Lord Shand, however, was pleased to add one further element to the effect that there may be statements made, which have induced other party to do that from which otherwise he would have abstained and which cannot properly be characterised as misrepresentation. In this context, reference may be made to the decisions of the High Court of Australia in the case of Craine v. Colonial Mutual Fire Insurance Co. Ltd. (1920: 28 C.L.R. 305). Dixon, J. in his judgment in Grundt v. Great Boulder Gold Mines Pvt. Ltd. (1939: 59 C.L.R. 641) stated that:

"In measuring the detriment, or demonstrating its existence, one does not compare the position of the represented, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true, the question of estoppel does not arise. It is only when the represent or wished to disavow the assumption contained in his representation that an estoppel arises, and the question of detriment is considered, accordingly, in the light of the position which the represented would be in if the represent or were allowed to disavow the truth of the representation."

(In this context see Spencer Bower and Turner: Estoppel by Representation 3rd Edn.).

Lord Denning also in the case of Central Newbury Car Auctions Ltd. v. Unity Finance Ltd. (1956 (3) All ER 905) appears to have subscribed to the view of Lord Dixon, J. pertaining to the test of 'detriment' to the effect as to whether it appears unjust or unequitable that the representator should now be allowed to resile from his representation, having regard to what the represented has done or refrained from doing in reliance on the representation, in short, the party asserting the estoppel, must have been induced to act to his detriment. So long as the assumption is adhered to, the party who altered the situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs, the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. [vide Grundts: High Court of Australia (1939 (59) CLR 641)]

21. Phipson on Evidence (Fourteenth Edn.) has the following to state as regards estoppels by conduct.

"Estoppels by conduct, or, as they are still sometimes called, estoppels by matter in pais, were anciently acts of notoriety not less solemn and formal than the execution of a deed, such as livery of seisin, entry, acceptance of an estate and the like; and whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed. [Lyon v. Reed (1844) 13 M&W. 285, 309] The doctrine has, however, in modern times, been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been authoritatively stated as follows: "Where one by his words or conduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." [Pickard v. Sears (1837) 6 Ad.&El. 469, 474] And whatever a man's real intention may be, he is deemed to act willfully "if he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it. (Freeman v. Cooke: 1848 (2) Exch. 654, 663).

Where the conduct is negligent or consists wholly of omission, there must be a duty to the person misled. {Mercantile Bank v. Central Bank (1938 AC 287, 304 and National Westminster Bank v. Barclays Bank International (1975 Q.B. 654). This principle sits oddly with the rest of the law of estoppel, but it appears to have been reaffirmed, at least by implication, by the House of Lords comparatively recently. [Moorgate Mercantile Co. Ltd. v. Twitchings (1977) AC 890 (H.L.)]. The explanation is no doubt that this aspect of estoppel is properly to be considered a part of the law relating to negligent representations, rather than estoppel properly socalled. If two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time. [Square v. Square (1935) P. 120]"

32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status - the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhawan pertaining the doctrine of Estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla (Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. a Three Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a Petition challenging the said examination would not arise.

33. Subsequently, the decision in Om Prakash stands followed by a later decision of this Court in Madan Lal and Ors. v. State of J&K and Ors. , wherein this Court as below:

"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this state there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves selected to have emerged successful as a result of the combined performance both at written test and oral interview, they have filed this petition. it is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."

34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.

35. In that view of the matter, while we are not in a position to record our concurrence with the applicability of the doctrine of estoppel by conduct but by reason of the decisions as cited from the Bar, we do feel it required to lend our concurrence to the submissions of Dr. Dhawan, on that score as noticed above."

The other cases relied by learned counsel for the respondents reiterate same proposition as noted above.

The question to be considered is as to whether in facts of the present case, the petitioners are estopped by their conduct in challenging the selection, they having appeared before the interview board.

Referring to the facts in leading writ petition (Writ Petition No.34198 of 2008), it has already been noted that both the petitioners had earlier filed writ petitions in this Court under Article 226 of the Constitution being Writ Petition Nos. 26501 of 2008 and 27600 of 2008 before appearing in the interview objecting the selection process adopted by the Commission. The petitioners in their earlier writ petitions filed before appearing in the interview, had prayed for a direction to the Commission to stop holding interview till proper norms are not laid down. Thus the protest of the petitioners was very much there and since no interim order was passed in the writ petitions stopping the process, they had no option but to appear in the interview. As noted above, both the aforesaid writ petitions were dismissed as withdrawn on 3rd July, 2008 after declaration of the result on 30th June, 2008 and 2nd July, 2008. The petitioner No.1 has also brought on the record a detailed representation submitted to Governor of the State dated 10th January, 2008 (Annexure-6 to the leading writ petition). In the said representation it was mentioned that questions are being raised for the last few years regarding the process of selection adopted by the Commission. It was further mentioned that in the guidelines, which have been framed by the Commission, there is sufficient space for malpractice. Reference was also made to the malpractices committed in selection of the Principal of Graduate Colleges pursuant to Advertisement No.39. The representation further mentioned that the Commission without scrutiny, had called all the candidates for the post of Principal of Graduate Colleges, which is violation of provisions of regulations. Serious objections were raised to the process of interview and process of evaluation of the candidates. Five suggestions were also given for stopping arbitrariness and favouritism in the selection of the Principal. Thus the objection to the procedure and manner of selection was very much raised by the petitioners before participating in the selection and the proposition pressed by the learned counsel for the respondents that petitioners having participated in the selection without protest, they cannot be permitted to challenge is selection, is clearly not applicable in facts of the present case.

The arguments on the basis of estoppel by conduct is also not applicable where glaring illegalities have been committed in procedure of selection. Whether principle of estoppel by conduct or acquiescence has to be applied in a particular case depends on facts of each case. The candidates who had appeared in the selection for the post of Principal of Postgraduate/Degree Colleges could not be said to be well aware of the various illegalities committed by the Commission in the selection process nor the candidates can be imputed the knowledge that Commission has called several candidates to appear in the selection who even does not possess the minimum qualification. In the facts and pleadings of the cases in the present bunch of writ petitions, as has been noted above, to shut out the candidates from questioning the selection shall be both enequiteous and unjust. A three Judge Bench of the Apex Court in the case of Raj Kumar and others vs. Shakti Raj and others reported in (1997)9 SCC 527, after noticing the judgment of the Apex Court in Madan Lal's case (supra) has laid down that where the Government has committed glaring illegalities in the procedure of selection, the principle of estoppel by conduct or acquiescence has no application. Following was laid down in paragraph 16:-

"16. Yet another circumstance is that the Government had not taken out the post from the purview of the Board, but after the examinations were conducted under the 1955 Rule and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the post were taken out from the purview thereof. thereafter the Selection Committee was constituted for selection of the condidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal vs. State of & K [(1995) 3 SCC 486] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the selection Board or the method of Selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, So also in the method of selection and exercise of the power in taking out from the purview of the and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case, thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action take by the Government are not correct in law."

There is one more aspect of the matter which needs to be considered. Present is a case where norms to be adopted by the Interview Board, have been questioned. The allegations of favouritism, nepotism and arbitrarily permitting the candidates to appear, who even did not fulfil the minimum qualification, have been alleged. Serious allegation regarding conduct of entire selection has been raised in these groups of writ petitions. After declaration of the result of Principal of Graduate Colleges on 15th May, 2007 serious complaints against conduct of selection were made and the State Government vide its order dated 12th June, 2007 decided to get inquired the allegation by the Divisional Commissioner, Allahabad who actually proceeded to inquire the matter and submitted a preliminary inquiry report on 3rd July, 2007 pointing out various irregularities and illegalities. The writ petition was filed by selected candidates challenging the order of the State Government dated 12th June, 2007 as well as the preliminary inquiry report, which writ petitions were allowed by this Court by its judgment in the case of Bharat Singh vs. State of U.P. (supra) against which special leave petition was filed in the Apex Court and the Apex Court had stayed the order of the High Court by which direction was issued to give effect to the selection and ultimately the writ petitions have been remitted back to this Court for fresh consideration. It is true that Apex Court has set-aside the order of the State Government appointing preliminary inquiry officer to conduct the inquiry, however, the Apex Court in paragraph 23 of the judgment in State of U.P. vs. Bharat Singh (supra) decided on 8th March, 2011 observed, "We are of the view that in the writ petitions filed by the aggrieved candidates before the High Court all aspects of the matter shall be open to examination in which everyone connected with the selection process would have an opportunity to place his/her point of view." In paragraph 53(4) of the judgment, following directions have been made by the Apex Court:-

"53(4). The High Court shall in the writ petitions pending before it be free to examine all issues regarding the selection process in question including the validity of the procedure followed in making the same. Depending upon whether the High Court finds the selection process to be valid or otherwise the Government shall have the liberty to institute an enquiry against the members of the State Services Selection Commission if such enquiry is otherwise permitted under law. In case, however, the High Court upholds the selection process and dismisses the writ petitions there shall be no room left for the State Government to embark upon any further enquiry into the matter on the administrative side. The aggrieved party shall be free to challenge the view taken by the High Court in appropriate proceedings in accordance with law."

In facts of the present case, as noticed above, we are of the view that menace of corruption cannot be permitted to be hidden in the carpet of technicalities and the selected candidates as well as the Commission are not right in their submission that petitioners be non-suited on the ground that they have appeared in the interview. This issue is, thus, decided in favour of the petitioners.

12. Whether the State Government has power to enquire the selection conducted by the Commission:

One of the questions, which further falls for consideration in this writ petition, is as to whether the State Government has any jurisdiction or power either under Section 6 of the Act or in its executive power under Article 154 of the Constitution of India to direct inquiry regarding process of selection. Section 6 of the Act empowers the Government to remove any member from office on several grounds as mentioned therein including on the ground of proved misconduct. Section 6 of the Act is quoted below:-

"6. Powers of the State Government to remove the member.--(1) The State Government may, by order, remove from office any member, if he-

(a) is adjudged an insolvent ; or

(b) engages, during his term of office, in any paid employment outside the duties of his office ; or

(c) is in the opinion of the State Government unfit to continue in office by reason of infirmity of mind or body or of proved misconduct.

(2) The procedure for the investigation and proof of misconduct under this section shall be such as may be prescribed.

(3) The State Government may suspend from office any member in respect of whom any action is contemplated under this section."

Rules have been framed, namely, the Uttar Pradesh Higher Education Services Commission Rules, 1981. Rule 5 provides for investigation of misconduct. Rule 5 is as under:-

"5. Investigation of misconduct /Section 6 (2)].--The procedure for the investigation and proof of misconduct referred to in Section 6 of the Act shall be as follows :

(a) where on complaint or otherwise the State Government is satisfied, whether after making a preliminary enquiry or otherwise, that there is a prima facie case of misconduct it shall give the member concerned an option either to resign the office unconditionally or to face Investigation ;

(b) if no unconditional resignation is received within 15 days from giving such option, the State Government may appoint an inquiry officer who shall be a sitting or retired Judge of the High Court or a person eligible to be appointed as a Judge of a High Court ;

(c) the Inquiry officer shall, after giving the member concerned reasonable opportunity of being heard and after taking such evidence as he may consider necessary, submit his findings to the State Government within 15 days of the completion of the enquiry ;

(d) in conducting such inquiry the inquiry officer shall be guided by rules of Inquiry and the principles of natural Justice and shall not be bound by former rules relating to procedure and evidence ;

(e) the provision of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act. 1976 (U. P. Act No. 4 of 1976) applies to such Inquiry :

(f) where during the course of the inquiry, the inquiry officer is changed for any reason whatsoever, it shall not be necessary for the new inquiry officer to commence the inquiry afresh and the inquiry may be continued from the stage at which the change took place :

(g) subject to the provisions contained in these rules, the inquiry officer shall have power to regulate the procedure of the inquiry including the fixing of place and time of its sitting and deciding whether the inquiry should be conducted in public or in camera."

Rule 5(a) provides that where on a complaint or otherwise the State Government is satisfied, whether after making a preliminary enquiry or otherwise, that there is a prima facie case of misconduct it shall give the member concerned an option either to resign the office unconditionally or to face Investigation. Thus pre condition for proceeding for investigation of misconduct is satisfaction of the Government on a complaint or after making a preliminary inquiry. The misconduct has not been defined in the Act, however, looking to the scheme of the Act and the Rules, misconduct can be committed by a member regarding performance of his statutory duty, one of which is selection. Any complaint or preliminary inquiry with regard to misconduct pertaining to selection cannot be said to be outside the scope of the Act and the Rules.

Section 19-A of the U.P. General Clauses Act, 1904 provides that if any power is given under any U.P. Act, all power incidental to exercise such power shall be deemed to be granted to the authority concerned. Section 19-A of the U.P. General Clauses Act, 1904 is quoted below:-

"19-A. Ancillary powers.- Where, by any Uttar Pradesh Act, a power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers shall be deemed also to be given as are necessary to enable that person, officer or functionary to do or enforce the doing of the act or thing."

We are thus of clear view that Section 6 of the Act read with Rule 5 of the Rules, empowers the State Government to direct for preliminary inquiry to inquire any selection process conducted by member of the Commission.

Another issue on which learned counsel for the parties have made submission is with regard to executive power of the State under Article 154 of the Constitution. In view of the fact that as per the judgment of the Apex Court dated 8th March, 2011 in State of U.P. vs. Bharat Singh the allegations pertaining to selection process have been examined in these writ petitions, it is not necessary for deciding these writ petitions to enter into or decide the issue as to whether the State Government is empowered in exercise of its executive power under Article 154 of the Constitution to direct an inquiry regarding process of selection by the Commission. The said issue is left open to be decided as and when it arises and no opinion is expressed in that regard in these writ petitions.

As noticed above, the tenure of the members of the Commission, who participated in the selection process for the post of Principal of Postgraduate/Degree Colleges has already come to an end as has been stated in the counter affidavit filed on behalf of the Commission, any power to remove the members cannot be exercised at this distance of time. Thus any inquiry by the State Government at this stage for exercising its power under Section 6 of the Act is completely meaningless apart from criminal angle, if any, as has been noticed by the Apex Court itself in paragraph 23 of the judgment dated 8th March, 2011 in the case of State of U.P. vs. Bharat Singh (supra).

12.Reliefs:

Now comes the question as to what relief, if any, the petitioners are entitled.

Before we answer this question, it is relevant to note that after the writ petition filed by the selected candidates being Writ Petition No.29524 of 2007 (Dr. Bharat Singh and another vs. State of U.P. and others) was allowed by this Court on 7th August, 2008 directing the Director of Higher Education to give effect to the recommendation dated 15th May, 2007 and to make placement, Special Leave Petition No.25966 of 2008 (State of U.P. and others vs. Bharat Singh and others) was filed by the State of U.P. in the Apex Court in which special leave petition following order was passed on 20th November, 2008:-

"Issue notice, returnable within two months.

Pending disposal of the special leave petitions, the petitioners shall appoint the respondents as Principal of various aided Non-Government Degree Colleges and Post Graduate Colleges, U.P. within a period of one month from this date. However, we make it clear that the appointment shall be subject to the decision of these petitions and such appointments have to be treated on the basis of this Court's order. In the event, the respondents and others in the select list, file undertaking in this Court within one month from this date, if not already filed, the petitioners shall appoint them subject to further order in the writ petition or by this Court. If the respondents give an undertaking that in the event they loose the battle, they will be automatically reverted to as readers and the difference of salary that would be taken as a Principal, shall be recovered and paid back to the petitioners.

We, however, further make it clear that if aforesaid undertakings are not filed within a month from this date, the interim order granted by this Court shall not be treated to have been granted in favour of those respondents who have not given undertaking."

The Apex Court by order dated 20th November, 2008 directed for appointment of the selected candidates subject to decision of special leave petition and appointment thereto was directed to be treated on the basis of the Court's order subject to filing undertaking that in the event they loose the battle, they will be automatically reverted to as readers and the difference of salary that would be taken as a Principal, shall be recovered and paid back to the petitioners. Subsequently again another order was passed on 23rd April, 2009, which is to the following effect:-

"By an interim Order dt.20.11.2008, we directed the petitioners to appoint the respondents as Principals of various aided Non-Government Degree Colleges and Post Graduate Colleges, U.P. within a period of one month in case, the respondents file an undertaking before this Court to the effect that such appointments shall be subject to the decision of these matters by this Court. However, we now make it clear that in the event of success of the SLPs, it may be considered whether the salaries paid as Principals shall be refunded to the petitioners. In compliance with the interim order, a Compliance Report has been submitted by the petitioners. It appears from the same, that 56 candidates have already been appointed in different Degree Colleges and Post Graduate Colleges in the State of U.P. The dispute has now arisen in respect of 16 candidates. We have already granted status quo in I.A.Nos.8,9,10 & 11 in SLP(C)No.27077/ 2008 on 23.03.2009.

After hearing the learned counsel for the parties and after going through the nature of Orders passed by us on 20.11.2008 and 23.03.2009, we are of the view that the interim order dt.20.11.2008 should be complied with in toto within a period of one month from this date. We, therefore, direct that status quo granted by this Court on 23.03.2009 shall stand vacated. But considering the facts and circumstances of the case and considering the fact that the selection itself has been challenged on the ground of irregularity, we are of the view that the petitions itself may be decided at an early date. For that purpose, we fix the hearing in the last week of July, 2009 on a non-miscellaneous day as a special case.

Delay in filing the undertaking may be condoned."

While deciding Special Leave Petition No.25966 of 2008 (converted into Civil Appeal No.2351 of 2011) on 8th March, 2011, the Apex Court issued following directions in Paragraphs 53(5) and 53(7):-

"53. In the result we dispose of these appeals with the following directions:

(5) The selected candidates who have filed undertakings in this Court and have been appointed to the posts of Principals pursuant to the orders of this Court shall stand impleaded as parties to each of the writ petitions pending in the High Court and challenging the selection process. The selected candidates shall based on this direction appear before the High Court on 2.5.2011 without any further notice in each one of the petitions and file their counter- affidavits. Failure on the part of the candidates to do the needful shall be suitably dealt with by the High Court who shall be free to proceed ex-parte, against those who fail to comply with this direction.

(7) Pending disposal of the writ petitions by the High Court the selected candidates shall be entitled to receive their pay and allowances including increments etc. otherwise admissible to the post of Principal as if the appointments were made on a valid and substantive basis. Such benefits flowing from the same shall, however, be subject to the outcome of the writ petitions before the High Court and the undertakings furnished by the appointed candidates to this Court which undertaking shall be deemed to have been continued till such time the writ petitions are finally disposed of."

The undertaking, which was submitted before the Apex Court regarding appointment of selected candidates was continued by the Apex Court by order dated 8th March, 2011.

One more submission, which has been advanced by the selected candidates, needs to be considered at this stage. Relying on judgment of the Apex Court in the case of Inder Priti Singh Kahlon vs. State of Punjab reported in 2006(11) SCC 356, it has been stated that there is necessity of separating cases of tainted persons from non tainted persons. In the present case due to serious breach in selection process including the process of calling candidates to appear in interview and conduct of selection in violation of statutory provisions of Regulation 6, the entire selection is vitiated. The whole process being vitiated, it cannot be said that those who have been selected, have been selected after proper evaluation of their worth, the present is a case where there cannot be any separation as good selection or bad selection. Looking to the serious breaches committed by the Commission in conduct of the selection, as noted above, the entire selection has to go. A three Judge Bench of the Apex Court in the case of Satpal and others vs. State of Haryana and others reported in 1995 Supp. (1) S.C.C. 206, had occasion to consider the challenge to selection made by Subordinate Service Selection Board. The selection procedure having been found to be vitiated, the Apex Court held that entire selection has to go. In the said case even certain selected candidates were sent for training, however, repelling the contention that they should be saved, the Apex Court held following in paragraph 9, which is as under:-

"9. We would like to make it clear that we have limited our consideration to the procedure adopted at the preselection stage and have not thought it necessary to examine the procedure at the postselection 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 the examination, they should be protected. It must be remembered that out of 1313 candidates selected, 574 were sent for training. Because of the interim order of the Court only 485, including the reserved category, could be appointed. The others were not sent for training because of the pendency of the petitions. Even out of those sent for training others in excess of 484 could not be appointed because of the interim order dated 6.3.1991. To protect 485 and not others would be quite discriminatory, in that, the 485 candidates whose entry is in the same tainted manner as others, would secure appointment while others would not. 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 U.P. Higher Education Service Commission was constituted with the object of selection of most suitable persons to impart higher education in the State. The process of selection adopted by the Commission was such that general public was loosing faith in the Commission which fact was also stated in the "statement of objects and reasons" of U.P. Higher Education Service Selection Board (Amendment) Act, 2008, as quoted above, in following words: "Selection of teachers for appointment to the important posts of Principals and Lecturers only on the basis of interview was adversely effecting the image of the Commission in the general public. It was therefore decided to amend the said Act to provide for holding written examination and interview for the selection of the candidates for the appointment to the posts of teachers.". The Commission is an institution which should command faith and confidence of people and to restore the faith of the people and candidates in the process, the selection has to be held afresh in accordance with the provisions as amended by the 2008 Amendment Act by conducting the selection both by written test as well as interview for the post of Principal of Postgraduate/Degree Colleges.

There are two writ petitions, which are to be separately dealt with, apart from other writ petitions of this bunch. In Writ Petition No.70062 of 2006 (Dr. Vinod Kumar Gupta vs. State of U.P. and others), following relief have been made:-

"i. a writ, order or direction in the nature of mandamus directing the Commission not to proceed in the interview in pursuance of the advertisement No.39 dated 24.2.2005 until and unless the issue is finally settled in the writ petition.

ii. a writ, order or direction in the appropriate nature directing the respondents to make selection on the post of principal in degree college/post graduate colleges in the State of U.P. applying the U.P. Act No.4 of 1994 read with Govt. Order dated 8.6.2000 as held by a Division Bench of this Hon'ble Court in case of Omkar Dutt Sharma and others vs. State of U.P. and others vide judgment dated 13.4.2001 (Annexure No.7 to the writ petition)...."

The issue, which has been raised in the aforesaid writ petition, having been completely answered by the Apex Court in its judgment and order dated 8th March, 2011 in the case of State of U.P. vs. Bharat Singh (supra) that Act No.4 of 1994 is not applicable on solitary post of Principal, the Writ Petition No.70062 of 2006 deserves to be dismissed.

In Writ Petition No.29524 of 2007 (Dr. Bharat Singh and others vs. State of U.P. and others) filed by the selected candidates of the select list dated 15th May, 2007, following reliefs have been made:-

"(i) issue a writ, order or direction in the nature of CERTIORARI quashing the impugned orders dated 12.6.2007 (Annexure-V - Page 58) of respondent No.1, the Principal Secretary, Higher Education, U.P., Lucknow and dated 16.6.2007 (Annexure-VI - Page 44) of respondent No.4 the Commissioner, Allahabad Region, Allahabad.

(ii) issue a writ, order or direction in the nature of MANDAMUS commanding the respondent no.3 the Director of Higher Education to give effect to the recommendation made by the U.P. Higher Education Service Commission dated 15.5.2007 (Annexure-IV Page 44) forthwith...."

The order dated 12.6.2007 of the State Government and letter of Director of Education (Higher) dated 16.6.2007 having already been set aside by the Supreme Court in Civil Appeal of State of U.P. Vs. Bharat Singh, the relief (i) has become infructuous. Relief (ii) as prayed cannot be granted in view of foregoing discussions. The writ petition No. 29524 of 2007 deserves to be dismissed.

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 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.

Date: April 23, 2012.

LA/ Rakesh