JUDGMENT Amitava Lala, J.
1. By the earlier order passed by Division Bench of this Court, all the aforesaid writ petitions were connected, and have been heard analogously for the purpose of disposal by a common judgement and order having binding effect upon all of them. The Writ Petition No. 54845 of 2005, will be considered as leading case, under which the writ petitioner wanted an appropriate order quashing the select list dated 7th/8th May, 2005, in so far as it selects Dr. P.C. Saxena, as Principal of Moti Lal Nehru Medical College, Allahabad (for short the College) along with other incidental prayers.
2. Fact remains that advertisement No. 3/2003/04 was issued for the purpose of filling up posts of Principals of State Medical Colleges. However, by a corrigendum dated 8th May, 2005 the maximum age limit of the candidates was enhanced. Originally, 6 posts were declared vacant for the purpose of filling up, out of which 3 were reserved for S.C. & ST. candidates. However, later on such total posts were reduced to 4 in number. There is no dispute with regard to the posts reserved for S.C. & ST. category. The dispute is with regard to the selection of general category candidate i.e. Dr. P.C. Saxena, as Principal of the College. An incidental dispute has been raised by Dr. Manisha Dwivedi by saying that although initially it was said that there would be reservation for women but subsequently the same had been withdrawn. According to Sri Rakesh Pandey, learned Counsel appearing for Dr. Dwivedi, the reservation for women is horizontal not vertical, therefore, such reservation should be made separately within the general candidates. However, we have come to know that still there is scope of 20 % reservation for women candidates. Since the number of posts was reduced, 20 % reservation for women was not available. In any event, Dr. Manisha Dwivedi and Dr. U.S. Sinha, both the petitioners herein, participated in the selection and after becoming unsuccessful, raised dispute with regard to the selection of Dr. P.C. Saxena by making these writ petitions.
3. So far as the other petitioner i.e. Dr. Harish Kumar Bist is concerned, his attack is not with regard to the selection but with regard to the seniority of candidates. According to Mr. M. K. Gupta, learned Counsel appearing for Dr. Bist, by a Government Order dated 2nd April, 1998, 6 medical Colleges were taken in a society, under the Societies Registration Act, 1856 and were accordingly registered. Under the compelling circumstances, Lecturers, Associate Professors, Readers therein, were directed to join in such posts under the society. Eventually, whosoever accepted such post under the society, irrespective of the seniority, was given the rank of the Professor but in fact, they are junior to Dr. Bist. The society was ultimately declared as defunct, therefore, the seniority will be counted as it was originally and not by virtue of placement of his juniors on the higher posts under the society, vide aforesaid Government Order, at the time of formation of the society.
4. Before entering into further controversy in respect of selection process herein, we are of the view that the cases of Dr. Bist and Dr. Dwivedi will be clarified at first. According to us, Dr. Bist could have challenged the seniority position, much before the commencement of the selection process, when the society was very well in existence i.e. in between 2nd April, 1998 and 14th September, 1998. When a Government Order has been issued on 23rd February, 2005 regarding the experience of the candidates, in the society or not in the society, only then he has come forward and invoked the writ jurisdiction of the Court for cancellation of such notification, on 8th December, 2005 long after the selection and publication of the select list on 7th/8th May, 2005. Therefore, his writ petition cannot be entertainable on account of laches, unless of course, the writ petition of Dr. Sinha succeeds in quashing the select list. Hence, we do not find any merit in this writ petition at this stage.
5. So far as the case of Dr. Manisha Dwivedi is concerned, her writ petition also cannot be entertained for the same reason that she participated in the process of selection as a general candidate and only after becoming unsuccessful, she filed the writ petition challenging the select list by saying that instead of filling up all the 6 posts as originally advertised, the number of posts has been reduced to 4, so as to deprive her of the benefit of the women's, horizontal quota. According to us, same principle is applicable in the case of Dr. Dwivedi also, unless of course, the writ petition of Dr. Sinha succeeds in quashing the select list. In any event, whether 6 posts will be ultimately filled up or only 4, falls exclusively within the domain of the employer, which cannot be subject matter of challenge by an unsuccessful candidate after participation in the selection process.
6. Now, let us come back for considering the case of Dr. U.S. Sinha. Mr. R.N. Singh, learned senior counsel appearing for Dr. Sinha has contended before this Court that although the petitioner has participated in the process of selection, yet he can challenge the decision making process of the authority, therefore, he has every right to file the writ petition challenging the same. He emphasised that the selected candidate Dr. P.C. Saxena had acted as Professor of a college under the society and till the date of his appointment under the order impugned, he continued as Professor irrespective of existence or non-existence of the society. Since the original order of formation of society was ultimately withdrawn by virtue of order passed by the Division Bench of this High Court and ultimately by the Supreme Court, hence, he will have to go with lock, stock and barrel. Whosoever were working as Professor therein during the existence of the society and thereafter, cannot be said to be duly qualified persons for the purpose of selection. Mr. Singh has placed the record of Civil Misc. Writ Petition No. 39615 of 1999 (Dr. Arvind Kumar Rathi v. State of U.P. and Ors.), to establish that the Division Bench of this Court already held that the grant of designation and pay scale of Professor would, of course, be subject to the result of Special Leave Petition pending in the Apex Court against the judgments of this Court quashing the Government Order dated 2nd April, 1998 entrusting the State Allopathic Medical Colleges to an autonomous society. According to Mr. Singh, the special leave petition was dismissed, therefore, such order stood confirmed and as a result thereof working of Dr. Saxena as Professor in a college under the society cannot be said to be duly qualified for the purpose of getting an appointment in the post of Principal, which is under challenge. The order which was passed by the Division Bench of this Court earlier, quashing the order of Government regarding formation of the society on 2nd April, 1998, is reported in 1999 (3) A.W.C. 2459, U.P.Medical College Medical Education Teachers Association, Gorakhpur and Anr. v. Union of India and Ors. Before placing the Rules and Regulations, Mr. Singh invited our attention to paragraph 16 of a Supreme Court judgment , Union of India and Ors. v. Arun Kumar Roy to the extent that a notification has no statutory force. It cannot override rules statutorily made governing the conditions of service of the employees.
7. Against this background, now we have to see the rules and regulations pertinent for the purpose of selection impugned. The concerned service rule, in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supercession of all existing rules and Orders on the subject, was notified on 21st December, 1990. The relevant portion of such rule is quoted hereunder:
3. ...
(1) 'substantive appointment' an appointment, not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being, by executive instructions issued by the Government;
(j) 'year of recruitment' means the period of twelve months commencing from the first day of July of a calendar year.
4. Cadre of service- (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Governor from time to time.
(2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under Sub-rule (1), be as given in Appendix 'A'.
Provided that:
(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation;
(ii) The Governor may create such additional permanent or temporary posts as he may consider proper.
5. ...
(iii) Professor:- (a) By direct recruitment.
(b) By promotion from amongst substantively appointed Associate Professors of the concerned specialities who have completed five years service on the first day of the year of recruitment.
Provided that if suitable eligible person having requisite length of service are not available for promotion to the post of Professor, the condition relating to minimum length of service may be relaxed so as to include, in the field of eligibility, Associate Professors who have put in at least four years service:
Provided further that recruitment to the posts of Associate Professors, under Sub-rule (ii) and Professor under Sub-rule (iii) shall be arranged that, so far as may be, 50 percent posts are held by direct recruits and the rest by promotion:
Provided also that if Assistant Professors or Associate Professors of requisite qualification and experience are not available in any speciality, the posts of Associate Professors or Professors, as the case may be, in promotion quota also shall, to the extent of such availability be filled by direct recruitment.
8. However, since about the experience as Professor, we are not getting the appropriate provision, we have to go by regulations being Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998, SCHEDULE-II, TABLE-1 which provide that for the post of Principal/Dean/Director of Medical Institution, following academic qualifications are required:
TABLE - 1 REQUIREMENTS OF ACADEMIC QUALIFICATIONS, TEACHING AND RESEARCH EXPERIENCE.
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9. Thus, the dispute stands reduced to a short point as to whether or not, Dr. P.C. Saxena, had requisite experience as Professor at the time of selection. From the regulation as quoted above and also the advertisement, it is crystal clear that a candidate should have ten years' teaching experience as Professor/Associate Professor/Reader in a Medical College/Institute, out of which at least 5 years should be as Professor in a department. Surprisingly, in the above quoted regulation, a full stop has been used before the words "Out of which...." According to us, a comma would have been appropriate for the purpose of due construction and the present dispute is arising only for such defect. The words "Out of which" are definitely co-related with the earlier sentence where it has been said that there should be ten years' teaching experience. Therefore, the appropriate meaning is that out of total teaching experience as a Professor/Associate Professor/Reader, at least five years' should be teaching experience as Professor in a department and that would be essential qualification for selection. Therefore, now the question arose before this Court whether, the working of selected candidate i.e. Dr. P.C. Saxena, as Professor in a department of a college under the society and thereafter, can be counted as teaching experience or not ? Mr. U.N. Sharma and Mr. W.H. Khan, both the learned senior counsel appearing in support of the selected candidate Dr. Saxena, contended before this Court that a post may evaporate, but the experience of a candidate in such post, cannot evaporate by application of the de facto doctrine. They, along with other counsel supporting Dr. Saxena, contended in chorus that if a District Judge delivers a judgment and for any reason, subsequently demoted from such post, his judgment declaring a right, title and interest of the contesting parties before him when he was the District Judge cannot automatically evaporate. So far as the true import of de facto doctrine is concerned, Mr. Gupta contended that it relates to action and action alone. Therefore, if we put the teaching experience as good as action of the candidate irrespective of the existence or non-existence of the society, nobody would say that the candidate was inexperienced at the time of call for interview for selection. Mr. Sharma, learned senior counsel appearing on behalf of such respondent contended that when he was Professor he had signed several certificates, allowed many persons to do research and did various acts in imparting education by which the students had been benefited during such period, therefore, his experience cannot be ignored in the manner as proposed by the petitioner/s.
10. Mr. R.N. Singh, learned senior counsel appearing in support of Dr. Sinha, placed reliance upon a judgment of Supreme Court , Ashok Kumar Sonkar v. Union of India and Ors. to establish that the possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In the absence of any rule or any specific date fixed in the advertisement, such date, as held by the Supreme Court, would be the last date for filing the application and as such, a candidate who was not having requisite qualification on such date, is ineligible for the post in question. He repeated and said that although Dr. Sinha participated in the selection process yet, since an illegality arose, not irregularity, about the appointment, he is entitled to challenge the same and he has challenged herein. The selection is non est in the eye of law. Nullity arose in view of the selection of an unqualified candidate in accordance with the rules, regulations and notifications. He further placed reliance on paragraph 27 of a judgment of Supreme Court , Badrinath v. Government of Tamilnadu and Ors. to establish that where an order is passed by an authority and its validity is being reconsidered by a superior authority and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order. The principle of consequential orders, which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders.
11. In our view, a post can be created by the Government, which subsequently, can be declared either by the Government or by the Court of law, as defunct but it is correct to say that the experience of a person in imparting education while working in such post cannot evaporate. It can also be seen from the point of view of equitable justice that a candidate had no fault in continuance of work in such post as Professor. Admittedly, he continued in the post as Professor and received salary of the post of the Professor till the date of selection. At no point of time his continuance and working as Professor was challenged by any body. On the basis of the argument of Mr. Gupta it appears to the Court that under a compelling circumstance, many candidates who were even junior to the petitioner, were called and engaged as Professor in a College under the society, that might be irregular or illegal for the purpose of creation of such posts but not for the purpose of gaining experience and imparting education by holders of such posts. By virtue of corrigendum issued in the year 2005, age was enhanced in respect of the candidates, inclusive of selected candidate. All such period, during which a candidate worked as Professor, irrespective of his belated promotion as Professor in such post and getting his salary for the purpose of working as Professor, cannot cease to take effect for the purpose of selection as per experience. Therefore, there is no irregularity in taking into consideration such experience by the Public Service Commission. A belated supplementary counter affidavit was allowed to be filed on behalf of Dr. P.C. Saxena, with costs to place in the record an important aspect that at the time of selection, the petitioner Dr. Sinha was an ineligible candidate. Mr. Singh did not oppose such contention and said that his writ petition cannot be dismissed on that score when the Court is hearing several writ petitions finally upon exchange of affidavits. The other writ petition of Dr. Dwivedi is existing, hence the question of illegality of the selection cannot be ruled out simply on account of ineligibility of the writ petitioner i.e. Dr. Sinha. Mr. Singh placing reliance upon paragraph 13 of a judgment of this Court , Mistra Nand Kaushik v. State of U.P. and Anr. and also a judgment of Supreme Court reported in (2003) 4 SCC 712, High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors. contended that the relief of the Court is not dependable upon the prayers as made in the writ petition. Even the relief can be converted into the writ of Quo Warranto, as the same is applicable in case of appointments made contrary to the statutory rules. Therefore, from such submission, not only the question of locus standi of the petitioner but also action on the part of the State is to be clarified. The State did not oppose any candidature irrespective of the face value of their qualification and experience but amongst the seniormost candidates, those were forwarded to the Commission, being an expert body to consider the cause and to come to a definite conclusion with regard to selection. As regards the seniority of candidates, since Dr. Bist has not challenged the same at the appropriate stage, hence sending names for the purpose of due consideration by the Public Service Commission, cannot be said to be illegal.
12. Hence, let us go back to the question of proper understanding in respect of de facto doctrine. In , Gokaraju Rangaraju v. State of Andhra Pradesh and Ors. a three Judges Bench of Supreme Court has held that the de facto doctrine is now well established that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure. Relying upon aforesaid judgment, Supreme Court once again held, on the factual circumstance therein, in , State of U.P. v. Rafiquddin and Ors. that judgements and orders of a de facto Judge cannot be challenged on the ground of his ineligibility for the appointment. This doctrine is founded upon sound principles of public policy and justice. The validity of the judgments and orders of a Judge whose judgeship is under challenge, cannot be challenged on the ground of legal infirmity their appointment. In paragraph 7 of the judgment of Supreme Court reported in 1993 Supple (2) SCC 734, Dr. A.R. Sircar v. State of U.P. and Ors. it was held that generally decisions taken bonafide under any law or rule in force, which is later on declared unconstitutional, are saved on the de facto doctrine for otherwise even regularisation of promotion etc. as available in the factual circumstances therein, would have to be invalidated. Therefore, in view of the analysis of the judgments of the Supreme Court as given above, the principle of de facto doctrine cannot be avoidable circumstance herein from its applicability in the case of the respondent i.e. the selected candidate who was selected in the selection impugned.
13. We wanted to be much more specific on the eligibility issue, Therefore, we have gone through other important judgments in this respect including paragraphs 29 and 30 of a judgment of the Supreme Court , Dr. Asim Kumar Bose v. Union of India and Ors. wherein the question arose in respect of counting of experience, as is the issue herein and it was held that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned, whether it is required on regular appointment or as Specialist in a teaching hospital with the ex-officio designation. As the statutory rules do not provide that the teaching experience gained in an ex-officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the candidates from the respective colleges cannot be ignored in determining their eligibility for appointment as Professor. There is a failure on the part of the Ministry of Health to draw a distinction between teaching and non-teaching experience under the Central Health Service. This case squarely speaks against the argument as advanced by the petitioners in drawing inference about the eligibility of the candidates for the selection on the post of Principal by Public Service Commission.
14. Last, but not the least, point pertains to locus standi of the writ petitioners. Since they have participated in the selection process and become unsuccessful, cannot challenge the discretion of the selectors in respect of the experience, as categorically held in 2007 (7) Supreme 438, Trivedi Himanshu Ghanshyambhai v. Ahmedabad Municipal Corporation and Ors. therefore, such latest view of the Supreme Court which is clearly applicable in these writ petitions, cannot be avoided under any circumstance.
15. Hence, in totality neither of the writ petitions can be sustained and all the three writ petitions are accordingly dismissed without imposing any cost. The interim order, if any, stands vacated.
V.C. Misra, J.
16. I agree.