VEERENDRA KR.GAUTAM AND ORS Vs. KARUNA NIDHAN UPADHYAY AND ORS

Tags Education

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 3361 of 2015, Judgment Date: Jul 15, 2016

Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3361 OF 2015

Veerendra Kr. Gautam and others …Appellants

VERSUS

Karuna Nidhan Upadhyay and others …Respondents

With

C.A. No. 3363/2015, C.A. No. 3364/2015, C.A. No. 3365/2015, C.A. No.
3366/2015, C.A. No. 3367/2015, C.A. No. 3368/2015, C.A. No. 3369/2015, C.A.
No. 3370/2015, C.A. No. 3371/2015, C.A. No. 3372/2015, C.A. No. 3373/2015,
C.A. No. 3374/2015, C.A. No. 3375/2015, C.A. No. 3376/2015, C.A. No.
3377/2015, C.A. No. 3378/2015, C.A. No. 3379/2015

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

These appeals are directed against the common judgment of the Division
Bench of the High of Allahabad dated 23.04.2012 in Writ Application
No.34198 of 2008 etc. batch, by which, the Division Bench dealt with the
challenge made to the selection dated 15.05.2007, to the post of Principals
in the Degree Colleges in the State of Uttar Pradesh and the selection
dated 30.06.2008 and 02.07.2008 to the post of Principals in different Post
Graduate Colleges also in the State of Uttar Pradesh. While dealing with
the said challenges made, the Division Bench ultimately set aside the
select list dated 30.06.2008 and 02.07.2008 as well as the select list
dated 15.05.2007 in respect of the Principals to P.G Colleges and degree
colleges respectively by allowing W.P.No.34198 of 2008 along with connected
writ petitions of Group-I and writ petition No.44358 of 2007. By the very
same impugned judgment the Division Bench also dealt with another writ
petition in W.P.No.70062 of 2006, by which, some of the selected candidates
applied for Mandamus to give effect to the recommendations dated 15.05.2007
and simultaneously prayed for quashing the order of the State Government
dated 12.06.2007, by which the State Government appointed the Divisional
Commissioner, Allahabad to hold the preliminary enquiry regarding
allegations against the selection dated 15.05.2007. In the very same writ
petition, prayer was also made for quashing the order dated 16.06.2007 of
the Divisional Commissioner by which certain information was called for
from the Uttar Pradesh Higher Education Services Commission, Director of
Education, who also issued a direction not to give any posting in pursuance
of the select list dated 15.05.2007.

Brief facts which are required to be stated are that there were many number
of post graduate and degree colleges situated in the State of U.P.
affiliated to the University Governed by U.P. State Universities Act, 1973.
The selection and appointment in the post graduate and degree colleges
were earlier made by the respective colleges in accordance with the
provisions of the U.P. State Universities Act, 1973 (hereinafter called the
‘1973 Act’). As there were numerous complaints regarding the selection of
candidates for both the post of Teachers as well as the Principals in the
post graduate colleges as well as the degree colleges, the State Government
enacted U.P. Higher Education Services Commission Act, 1980 (hereinafter
called the 1980 Act) to establish a Service Commission for the selection of
Teachers which includes the post of Principals for appointment to the
colleges affiliated to or recognized by the University under the 1973 Act.
The Commission consisted of a Chairman and not less than two and not more
than six members to be appointed by the State Government. The management
of the colleges were expected to intimate the existing as well as future
vacancies in the course of the ensuing academic year to the Director of
Education and the Director in turn was required to notify the vacancies to
the Commission. The Commission thereafter undertakes the process of
selection in accordance with the Act, Rules and Regulations. At this
juncture, it is necessary to note the relevant provisions of the 1980 Act
as well as the relevant provisions in the Regulations and the Rules
formulated under the provision of the 1980 Act.

Under Section 4(1) of 1980 Act it is stipulated that the Commission shall
consist of a Chairman and not less than two and not more than six other
members to be appointed by the State Government. Sub Section (2) of
Section 4 prescribes the qualification for appointment as a Chairman. What
is relevant for our purpose is Section (4)(2)(e) as per which, a person
will be held to be qualified to be appointed as Chairman, if he is in the
opinion of the State Government an eminent person having made valuable
contribution in the field of education. Sub-Section (2-a) of Section 4
prescribes the qualification for appointment of members. Here again, under
Section 4(2-a)(g) it is stipulated that a person shall be qualified for
appointment as a member if in the opinion of the State Government he is an
eminent person having made valuable contribution in the field of education.
Section 8 of the Act prescribes that no act or proceeding of the
Commission shall be deemed to be invalid merely on the ground of any defect
or irregularity in such act or proceeding not affecting the substance. It
also stipulates that such invalidity will not take place on the ground of
any vacancy or defect in the constitution of the Commission or any defect
or irregularity in the appointment of a person acting as a member thereof.
The powers and duties of the Commission have been set out in Section 11.
Under Section 11(b), the Commission is empowered to conduct examinations,
where consider necessary, hold interviews and make selection of candidates
for being appointed as such Teachers. Under Section 12(4) it is stipulated
that the manner of selection of persons for appointment to the post of a
Teacher of a College shall be, as may be determined by the Regulations.
Under Section 31, the Commission has been empowered, with the previous
approval of the State Government, to make Regulations, among other things
for conducting examinations, holding interviews and for laying down the
procedure to be followed by the Commission for discharging its duties and
performing its functions under the Act.

By virtue of the powers under Section 31 of the 1980 Act, the Uttar Pradesh
Higher Education Services Commission (Procedure for Selection of Teachers)
Regulations 1983 (hereinafter called the 1983 Regulations) came to be
framed and was notified on 20.08.1983. Regulation 2(h) defines a ‘Teacher’
to mean a person employed for imparting instructions in a college and
includes a Principal. The qualification, experience etc., for appointment
as a Teacher has been set out in Regulation 3, as per which, the minimum
qualification for appointment of a Teacher shall be as given in the
Statutes referred to in Section 50 of the Uttar Pradesh State Universities
Act, 1973. Regulation 6 is an important provision which requires to be
considered in detail in these appeals and therefore the whole of Regulation
6 is extracted, which reads as under:

“6. Procedure for selection.— (1) The Commission shall scrutinize the
applications and call for interview such number of candidates as it may
consider proper : Provided that, if on account of excess number of
applications or for any other reasons, the Commission considers it
desirable to limit the number of candidates to be called for interview, it
may—

(i) in the case of the post of a teacher, not being the post of principal,
either hold preliminary screening on the basis of academic record or hold a
competitive examination, so however that no competitive examination shall
be held before the recruitment year 1984.

(ii) in the case of the post of the Principal, hold preliminary screening
on the basis of academic record, teaching the administrative experience ;

Provided further that the number of candidates to be called for interview
for any category of post shall, as far as possible, be between three to
eight times the vacancies as the Commission may consider proper.

(2) The Commission shall interview the candidates in accordance with the
criteria, minimum standards and guidelines set out by it. The Commission
may, if it considers necessary, hold practical test also as part of
interview.

(3) No candidate shall be recommended unless at least one expert concurs
with the selection.

(4) The Commission shall prepare two separate lists of selected candidates,
one of the women candidates only and the other a ‘general list’ of all the
candidates (including women candidates included in the first list). The
names of women candidates who specifically opt not to be posted in women’s
colleges shall not be included in the list of women candidates. The names
of the candidates in the two lists shall be arranged in order of merit and
the number of names shall not be more than three times the number of
vacancies or the number of vacancies plus four whichever is more.”

Under the Uttar Pradesh Higher Education Services Commission (Procedure and
Conduct of Business) Regulations 1983, provision of Constitution of
Interview Board, Constitution of panel of experts in the Interview Board
are all set out. These are the Statutory provisions which are required to
be noted while dealing with these appeals where a challenge to the Division
Bench order is made.

The Division Bench having considered the various submissions of the
respective parties formulated the following issues for consideration which
are as under:

“1. Whether the writ petition No. 34198 of 2008, Dr. Karuna Nidhan and
another Vs. State of U.P. and others is liable to be dismissed since the
petitioner's earlier two writ petitions were dismissed as withdrawn on
3.7.2008 without obtaining any leave to file a fresh writ petition?

2. Whether the appointment of Members of U.P. Higher Education Service
Commission respondents No. 4 to 13 in writ petition No. 34198 of 2008 were
invalid and the said appointments are liable to be set aside?

3. Whether the members of selection Board should be higher in rank and
stature to the candidate whom they are going to interview?

4. Whether U.P. Higher Education Services Commission has framed appropriate
guidelines providing for criteria, minimum standard, for conducting
selection as provided by Regulation 6(2) of Regulations 1983?

5. Whether the Commission has truthfully followed the screening guidelines
fixed by it for calling the candidates to appear in the interview for the
selection?

6. Whether the Commission having fixed the ratio of candidates to be called
i.e. 1:8 with regard to advertisement No. 39 vide its meeting dated
13.5.2008 was justified in calling the candidates in excess of ratio 1:8?

7. Whether several candidates who had been called for interview and
selected did not fulfill the minimum qualification as required?

8. Whether five women candidates, who had applied for being considered
against the male category posts were illegally shifted to the post meant
for female category permitting five candidates to be included in the select
list, who could not have been otherwise included in the select list against
the Principal of male category?

9. Whether the procedure adopted by the Commission in conducting selection
of Principals of post graduate and degree colleges was fair, reasonable and
in accordance with the provisions of the Act, Regulations and the
Guidelines?

10. Whether against the post of Principal which is single post in an
institution, horizontal reservation for physically handicapped and
dependent of freedom fighter is applicable and the selection made of
reserved categories candidates namely; dependent of freedom fighter and
physically handicapped is valid who otherwise could not have been included
in the select list?

11. Whether the petitioners who had participated in the interview are
estopped by their conduct and cannot be allowed to challenge the selection
on the post of Principal declared on 15.5.2007 and 30.6.2008/2.7.2008?

12. Whether the State Government had power and jurisdiction to direct for
inquiry regarding process of selection conducted by the Higher Education
Service Commission in exercise of its power either under section 6 of the
Act or in exercise of the executive power as provided under the
Constitution?

13. To what relief the petitioners are entitled in these writ petitions?”

On issue No.1 the Division Bench took the view that the writ petition was
maintainable, that the writ petitioners were entitled to challenge the
ultimate selection made in the select list dated 15.05.2007, 30.06.2008 and
02.07.2008. As far as the challenge made based on invalid appointment of
the Members of the Commission, who were arrayed as respondent Nos.4 to 9 in
the writ petition, the Division Bench found that those respondents had
since subsequently ceased to be members of the Commission, held that there
was no scope to examine the validity of their appointment as members of the
Commission, but applying the de facto doctrine, proceeded to hold that
strict analysis of the selection made by those members was necessitated.

On the above said basis, the Division Bench proceeded to deal with the
other issues formulated by it. The Division Bench in its ultimate analysis
held that there were serious lapses in the procedure followed by the
Commission in making the selection for the post of Principals of the Post
Graduate as well as Degree colleges in as much as the Regulation 6 of the
1983 Regulation was not strictly followed and that the necessary guidelines
under the said Regulation were not formulated both for screening the
candidates as well as in the matter of holding the interview, apart from
serious violation in the matter of calling of the candidates for interview
beyond the prescribed limit as provided under the Regulation 6. It was on
the above said basis, the Division Bench ultimately, set aside the entire
selection and directed the State Government to redo the selection afresh.

Before proceeding further it will be necessary to make reference to an
earlier judgment of this Court in Civil Appeal No.2351 of 2011 along with
connected civil appeals and transfer petitions reported in State of Uttar
Pradesh and others Vs. Bharat Singh and others - (2011) 4 SCC 120 wherein,
this very selection came to be considered under different circumstances.
In the said appeal the challenge was to a judgment of the Allahabad High
Court dated 07.08.2008, by which the High Court directed the Director,
Higher Education to give effect to the recommendation made by the U.P.
Higher Education Service Commission for the post of Principals in aided /
affiliated degree colleges. The State Government was aggrieved in as much
as the State Government had earlier directed for holding an enquiry into
the misfeasance in the matter of selection made by the Commission, which
was the subject matter of challenge before the High Court. This Court while
holding that the selection was for the post of Principal to different
colleges and since the selection was being made for a single post, Rule of
Reservation will not apply, that the order dated 12.06.2007 issued by the
Government appointing the Divisional Commissioner, Allahabad as an Enquiry
Officer to hold an enquiry into the validity of selection process and the
report submitted by the said Enquiry Officer, shall stand quashed and the
order of the High Court to that effect was affirmed. However, this Court
took note of the pending writ petitions in the High Court wherein,
challenge to the selection was substantially raised and held that the High
Court was free to examine all issues regarding the selection process in
question including the validity of the procedure followed in making the
same. Significantly, this Court took note of the undertaking made by the
selected candidates during the pendency of the appeal who were appointed to
the post of Principals pursuant to the interim orders of this Court to be
permitted to be impleaded as parties in the writ petitions where the
selection was under challenge. The interim order dated 20.11.2008,
stipulated that in the event of the selection being set aside, all those
candidates will stand reverted to the post of Readers and that whatever
additional payments received by them shall be recoverable from them.
Further in the said judgment dated 08.03.2011, it was observed that in the
writ petitions filed by the aggrieved candidates before the High Court, all
aspects of the matter is open for examination, in which, everyone connected
with the selection process will have an opportunity to place his / her
point of view.

Keeping the above judgment dated 08.03.2011, passed in C.A.No.2351 of 2011,
we proceeded with the hearing of these appeals. We heard the submissions
of Mr. S. Gurukrishna Kumar, Mr. Amarendra Saran and Mr. Rajiv Dutta,
learned senior counsels and Mr. Sanjay Mani Tripathi, Mr. Vijay Kumar, Mr.
Manoj K. Mishra, Mr. Sumit Kumar, Mr. Makarand D. Adkar, Mr. Yatendra
Sharma for the appellants, Mr. Jaideep Gupta, learned senior counsel for
the Commission, Mr. C. U. Singh learned senior counsel for respondents 1
and 2 and Mr. Jitendra Mohan Sharma, learned senior counsel for the
intervenors.

Mr. S. Gurukrishna Kumar, in his submissions after referring to the
relevant facts and the regulations submitted that the Regulations gave the
discretion to the Commission whether to limit the number of candidates or
not, the ratio prescribed in the Regulations under the proviso to
Regulation 6(1) viz., 3 to 8 times of the candidates is only a guideline
and not a Rule and, therefore, not to be mandatorily applied for making the
selection, that exceeding a ratio by itself cannot be held to be arbitrary,
that this was not a case where no guidelines were in place and that under
Regulation 6(1), the Commission had every power to limit or not to limit
the number of applicants. The learned senior counsel submitted that the
Commission gave ample reasons for the ratio it adopted in making the
selection and that by making reference to some of the selected candidates
alone, the Division Bench ought not to have interfered with the whole
selection. The learned senior counsel ultimately submitted that the
withdrawal of the earlier writ petitions barred the filing of the present
writ petition when such withdrawal was without any reservation, that High
Court having written a specific finding that the action taken by the
members of the Commission 4 to 9 were protected by de facto doctrine ought
not to have struck down the selection, that there was nothing alleged
against the appellants as regards their merits or demerits and therefore
their selection should not have been interfered with. In support of his
submissions, the learned senior counsel relied upon the decisions reported
in Gokaraju Rangaraju v. State of Andhra Pradesh - 1981 (3) SCC 132, Ajay
Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. - 1981 (1) SCC 722, Dr.
Keshav Ram Pal, Reader and Head of Sanskrit Department and Offg. Principal,
Lajpat Rai Post-Graduate College, Sahibabad, Distt. Ghaziabad, U.P. v. U.P.
Higher Education Services Commission, Allahabad & Ors. - 1986 (1) SCC 671,
State of Madhya Pradesh v. Narmada Bachao Andolan and Anr. - 2011 (7) SCC
639, Ashok Kumar Yadav and Ors. v. State of Haryana & Ors.- 1985 (4) SCC
417 and Bharat Singh (supra).

Mr. Rajiv Dutta, learned senior counsel appearing for the appellants in
C.A.No.3361 of 2015 in his submissions contended that the High Court had
gone beyond the pleadings, the writ petitioners having participated fully
were not entitled to challenge the process subsequently and that the
appellants having been appointed in 2008 and working till date and there
being no allegation of any adverse report against them, their appointments
should not be interfered. The learned senior counsel relied upon Madan Lal
& Ors. v. State of J & K and Ors. -1995 (3) SCC 486 and N.T. Devin Katti
and Ors. v. Karnataka Public Service Commission & Ors. - 1990 (3) SCC 157
in support of his submissions.

Shri Amarendra Saran, learned senior counsel appearing for the appellants
in C.A.No.3366 of 2015 by making specific reference to the details of each
of the appellants, sought to contend that the High Court factually erred in
holding that those appellants did not satisfy the prescribed qualifications
such as experience, possession of necessary qualification etc., and
therefore the judgment is liable to be set aside. The learned senior
counsel submitted that each and every finding in respect of those
appellants was erroneous and against the material facts, that the finding
of the High Court that the candidate did not have the requisite
qualification was not a correct finding, that the finding that more
candidates were called is based on a misreading of the Regulation 6(1)(ii)
and the further finding that the Commission members were lower in rank and
status was not tenable and that the finding on the principle of estoppel
was contrary to law.

The learned senior counsel representing the other appellants adopted the
arguments of Mr. S. Gurukrishna Kumar and Mr. Amarendra Saran.

Mr. Makarand D. Adkar, learned counsel for the appellant in C.A.3363 of
2015 submitted that the said appellant top the list in women’s list, the
appellant was posted in women’s college exclusively meant for women and
therefore the writ petitioners have no locus to challenge the selection of
the said appellant. In other respects the learned counsel adopted the
arguments of the other senior counsel.

Mr. Jaideep Gupta, learned senior counsel for the Commission submitted that
two groups of petitioners made a challenge and that one group went to Court
at the time of advertisement but withdrew without reserving any liberty but
later filed substantive writ petition after the interview result, where
grounds were raised even relating to the process of selection. According
to the learned senior counsel the other group never raised a challenge to
the advertisement and came after the interview. According to learned
senior counsel, principle of estoppel operate differently in that those who
participated in the interview are estopped from raising a challenge which
is covered by the decision of this Court reported in Madan Lal (supra). As
far as those who filed the writ petition and withdrew the same without
liberty, the Sarguja Transport Service, v. State Transport Appellate
Tribunal, Gwalior and Ors. - AIR 1987 SC 88 principle will apply and that
the reasons for the withdrawal of the writ petition were irrelevant and
they were not entitled to challenge the selection. The learned senior
counsel submitted that the Rules only provided for interview and there was
no written test prescribed and therefore where the selection is based on
academic qualification and interview, there is no limit for prescription of
marks for interview. The learned senior counsel argued that the screening
guidelines were issued as early as on 06.11.2006 both for degree colleges
as well as post graduate colleges and that for post graduate colleges by
subsequent proceedings of the Commission dated 10.04.2008, 13.05.2008 and
22.05.2008, guidelines were altered and cut-off marks were fixed as per the
guidelines and necessary resolutions were passed for the ultimate cut-off
mark of 34.1. The learned senior counsel would contend that the Commission
taking into account the total number of applications received decided to
call all the candidates for interview irrespective of the cut-off marks as
it had possessed necessary powers under Regulation 6. The learned senior
counsel submitted that the decision was not with any ill-motive, in order
to hold that the whole selection should be set aside. On Regulation 6(2)
the learned senior counsel submitted that from a reading it cannot be said
that without any guidelines U. P. Higher Education Services Commission
cannot carry on with the interview, that where there are criteria, it
should be followed and that guideline have been framed as early as on
06.10.1983, which have been duly followed. The learned senior counsel
submitted that the said 1983 guidelines were also accepted by this Court in
the judgment reported in Dr. Keshav Ram Pal (supra). The learned senior
counsel further contended that those guidelines were sufficient for the
Commission to make the selection in the interview. As regards the
composition of members, the learned senior counsel contended that the High
Court having applied the de facto doctrine, there was no scope for the High
Court to interfere with the selection.

As against the above submissions, Mr. C. U. Singh, learned senior counsel
appearing for the contesting private respondents, in his submissions, while
meeting the arguments on estoppel, contended that there were 16 writ
petitions in which the Division Bench passed the impugned judgment and
therefore, the withdrawal of two earlier writ petitions will not have any
effect on this judgment. The learned senior counsel also submitted that in
any event, in Bharat Singh’s case (supra) while issuing directions for the
disposal of the writ petitions, this Court observed that opportunities
should be extended to all concerned and therefore the present case is
completely different one and not covered by any of the judgments passed
earlier in order to apply the principle of estoppel. The learned senior
counsel also submitted that the withdrawal of the earlier writ petition was
not with an intent of forum shopping since that writ petition was filed at
the stage when interview was not held and since by the time the writ
petition was taken up, the whole interview was over, the writ petition was
withdrawn and fresh writ petition was filed challenging the whole
selection. The learned senior counsel then contended that the High Court
after finding that respondents 4 to 9 had already ceased to be the members
of the Commissions, there was no scope to consider the prayer for quo
warranto and consequently applying the de facto doctrine made a deeper
scrutiny of the whole selection and gave valid reasons for setting aside
the selection. The learned senior counsel pointed out that the grounds
raised in the writ of quo warranto were very formidable grounds in as much
as the appointment of respondents 4 to 9 were not in accordance with
Section 4(2)(e) or 4(2-a)(g) of the 1980 Act. The learned senior counsel
therefore contended that the course adopted by the High Court in having
made a deeper scrutiny and its findings on each one of the issues, to hold
the selection invalid was well justified. The learned senior counsel relied
upon the decision reported in State of Punjab Vs. Salil Sabhlok and others
- (2013) 5 SCC 1.

Mr. Jitendra Mohan Sharma, learned senior counsel who appeared for the
petitioner in a writ petition before the High Court and who has filed
I.A.No.15/2013 in C.A.3361 of 2015 for intervention, submitted that when
the whole process of selection was challenged, the consideration of
individual cases is of no consequence. The learned senior counsel pointed
out that when the term of invalid members viz., respondents 4 to 9 before
the High Court was over, the High Court was not in a position to deal with
the issue of quo warranto and consequently, it made a thorough examination
of the process of selection as to its validity and found the same to be
wholly invalid for setting aside the same. The learned senior counsel
placed reliance reported in Union of India & Ors. v. O. Chakradhar - (2002)
3 SCC 146, Krishan Yadav (supra) and Bharat Singh (supra) in support of his
submissions.

Having heard the respective counsel and having bestowed our serious
consideration to various submissions and having gone through the impugned
judgment, we feel that it will be appropriate to note the sum and substance
of various submissions and find out whether there is any scope for
interference with the judgment impugned in this case. The submissions of
the learned counsel for the appellants can be noted as under:

Since some of the contesting private respondents had moved the High Court
earlier by way of a writ petition raising certain challenges to the very
same selection and since those writ petitions were withdrawn without any
reservation or liberty asked for, the subsequent writ petitions raising a
challenge to the very same selection was hit by the principle of Estoppel.
Reliance was placed upon the judgment reported in Sarguja Transport
Services (supra).

When once the High Court decided to apply the de facto doctrine on finding
that respondents 4 to 9 ceased to hold office as members of the Commission,
it ought not to have interfered with the selection, by applying the
principles laid down in the judgment reported in Gokaraju Rangaraju
(supra).

The Commission gave reasons for the ratio it adopted while making the
selection, that is between 06.11.2006 and 22.05.2008 viz., on 06.11.2006,
10.04.2008, 13.05.2008 and 22.05.2008, the Commission fixed the norms after
the advertisements, reframed the guidelines for the PG college selection,
the cutoff index was fixed which was subsequently altered, all of which
were done well before the interview was held.

The selection made by the commission was in accordance with Regulation 6 of
the 1983 Regulations, that there were guidelines both for initial screening
as well as for evaluating the merits at the time of interview.

As far as the individual cases who are the appellants in C.A.3363 of
2015 against whom specific findings have been rendered by the High Court to
hold that their selection was bad, the question for consideration is
whether such finding of facts are true or not.

Even if the individual cases where the Division Bench held that they were
not qualified, but yet selected and assuming such conclusion drawn by the
Division Bench was correct, that will not have any effect on the entire
selection.

On the issue pertaining to reservation, it was pointed out that in the
earlier round i.e. in the judgment reported in Bharat Singh (supra), this
Court ruled that since the posts of Principal are single post, rule of
reservation will not apply. Therefore, when no reservation was possible,
if any of the candidate has been appointed on the ground of reservation,
the same will not survive, but applying the Rule of Reservation, four
candidates got the benefit, of the four candidates one candidate did not
join, while one joined and left and one other person had resigned and one
is going to retire and therefore on that score, there was no scope for
interference.

As far as the first submission is concerned, the same is raised based on
the doctrine of estoppel. The contention was that earlier prior to the
holding of the interview, two writ petitions were filed viz., W.P.Nos.26501
and 27600 of 2008, which were simply withdrawn on 03.07.2008. It is
therefore contended that when the very same selection was the subject
matter of challenge in those writ petitions and the writ petitions were
withdrawn without any reservation and without asking for any liberty to
raise a challenge at a later point of time, the writ petitioners were
estopped from filing the present writ petition viz., W.P.No.34198 of 2008.
The said contention was rejected by the High Court by holding that the
earlier writ petition was filed before the interview commenced and that
when subsequently, after the interview, select list for the post of
Principals of post graduate Colleges was declared on 30.06.2008 and
02.07.2008, the petitioners choose to withdraw those writ petitions and
thereafter file the present W.P.No.34198 of 2008. The Division Bench
therefore held that the withdrawal of the earlier writ petition without any
reservation did not cause any prejudice in as much as at the time when the
earlier writ petition was filed, the select list was not announced and
therefore when at the stage prior to the interview, those writ petitions
were filed there was nothing wrong in the writ petitioners moving the High
Court subsequent to the declaration of the results by raising a challenge
to the select list. We do not find anything wrong with such a conclusion
arrived at by the Division Bench of the High Court. That apart, in the
case on hand, as rightly pointed out by Mr. C. U. Singh learned senior
counsel for the contesting private respondents, there were as many as 17
writ petitions, which were pending before the High Court along with
W.P.34198 of 2008. Therefore withdrawal of the earlier two petitions by
the writ petitioner in W.P.No.34198 of 2008 could not have in any manner
prevented the High Court from examining the correctness of the challenge
made in the other writ petitions. Further, in Bharat Singh’s case (supra),
when this Court in its order dated 08.03.2011, passed in C.A.2351 of 2011,
observed that in the writ petitions filed by the aggrieved candidates
before the High Court all aspects of the matter shall be open for
examination, in which everyone connected with the selection process will
have an opportunity to place his/her point of view, we do not find any
serious impediment in the case of the writ petitioner in W.P.No.34198 of
2008 to voice his grievance along with other writ petitioners which was
virtually permitted by this Court earlier.

Reliance was placed on behalf of the appellants in the decision reported in
Ramesh Chandra Sankla Vs. Vikram Cement & Ors.- 2008 14 SCC 58, paragraph
61 was relied upon which reads as under:

“61. From the above case law, it is clear that it is open to the petitioner
to withdraw a petition filed by him. Normally, a Court of Law would not
prevent him from withdrawing his petition. But if such withdrawal is
without the leave of the Court, it would mean that the petitioner is not
interested in prosecuting or continuing the proceedings and he abandons his
claim. In such cases, obviously, public policy requires that he should not
start fresh round of litigation and the Court will not allow him to re-
agitate the claim which he himself had given up earlier.”

Reliance was placed upon a recent decision of this Court reported in
Pradeep Kumar Rai and others Vs. Dinesh Kumar Pandey and others - (2015) 11
SCC 493, paragraph 17 was relied upon to contend that the candidates having
participated in the process of interview and not challenged it till the
results were declared cannot be allowed to approbate and reprobate and on
that principle, the challenge was rejected. When we read paragraph 17 we
find that the appellants in that case participated in the process of
interview and challenged the results after a gap of four months from the
date of interview and the declaration of results. This Court therefore
held that such an indifferent attitude displayed in making the challenge
disentitle them to seek for any relief. The said case is not comparable at
all to the case on hand, where before the interview was conducted there was
a challenge and during the pendency of the said challenge, the interview
was held and ultimately results were announced. Thereafter, the challenge
was made on very many substantial grounds such as invalid members
constituted the Commission, several procedural lapses in applying
Regulation 6 of 1983 Regulations and serious allegation of invalid
candidates having been permitted to participate in the interview who were
found to be ultimately selected and appointed as Principals. Having regard
to such extreme serious allegations of malpractice in the matter of
selection, there is no scope to apply the said decisions to the facts of
this case.

On behalf of the respondents reliance was placed upon a decision of this
Court reported in G.N.Nayak Vs. Goa University and others - (2002) 2 SCC
712 on the question of estoppel. In an identical situation, this Court
held that when the cause of action were different, the withdrawal of
earlier writ petition without liberty to file a fresh application, will not
have any impact in making the challenge when the subsequent challenge was
to the selection ultimately held while the earlier challenge was on the
basis of an apprehended bias. We find the said line of reasoning fully
supported the case of the writ petitioners. Even in the case on hand,
earlier when writ petitioners filed the writ petition, the same was at a
stage when the interview was about to be held. By the time when the writ
petition was pending, since the interview was held and the results were
ultimately published, the withdrawal of the earlier writ petition without
liberty and a fresh challenge made to the ultimate selection on various
grounds cannot be held to have disentitled the writ petitioners to raise
the challenge.

It was contended on behalf of the appellants that the withdrawal of the
earlier writ petition by one of the writ petitioners would disentitle and
estop the petitioners from making a challenge to the selection made in the
interview. We have extensively discussed the said issue and have held how
in the facts of this case such an abstract proposition of law cannot be
applied. We therefore do not find any merit in the said submission on the
ground of principle of estoppel. We therefore reject the said submission
outright.

The next submission of the appellants was that once the High Court decided
to apply the de facto doctrine, on finding that the members of the
Commission viz., the respondents 4 to 9 in the writ petition ceased to hold
office, it ought not to have interfered with the selection and in support
of the said submission, reliance was placed upon Gokaraju Rangaraju
(supra). Paragraph 4 of the said judgment is relevant where the principle
has been set out which reads as under:

“4. We are unable to agree with the submissions of the learned counsel for
the appellants. The doctrine is now well established that "the acts of the
officers de facto performed by them within the scope of their assumed
official authority, in the interest of the public or third persons and not
for their own benefit, are generally as valid and binding, as if they were
the acts of officers de jure" (Pulin Behari v. King Emperor). As one of us
had occasion to point out earlier "the doctrine is founded on good sense,
sound policy and practical expedience. It is aimed at the prevention of
public and private mischief and the protection of public and private
interest. It avoids endless confusion and needless chaos. An illegal
appointment may be set aside and a proper appointment may be made, but the
acts of those who hold office de facto are not so easily undone and may
have lasting repercussions and confusing sequels if attempted to be undone.
Hence the de facto doctrine" (vide Immedisetti Ramakrishnaiah Sons Vs.
State of A.P.)”

It is no doubt well settled that the acts of the officers de facto
performed by them within the scope of their assumed authority in the
interest of the public or the third persons and not for their own benefits
are generally held valid and binding as if they were the acts of the
officers de jure. A reading of the said paragraph does not give an omnibus
authority even while applying de facto doctrine to hold that every illegal
acts or acts performed which smacks of very many illegalities and
incongruities should be merely ignored and validated. It has to be kept in
mind that even while applying the de facto doctrine whether such acts
performed were aimed at the prevention of public and private mischief and
for the protection of public and private interest. The doctrine is intended
to prevent invalidation of Acts, such as appointments, on the sole ground
that they were performed without de jure authority. Therefore, keeping the
well thought out principles set down in the said judgment in mind when we
examine the approach of the Division Bench we find that the Division Bench
having noted that the respondents 4 to 9 in the writ petition ceased to
hold office had to necessarily not deal with the challenge made to their
appointment for issuance of quo warranto. It also rightly applied the de
facto doctrine but the approach of the Division Bench in stating that even
while applying the de facto doctrine, the selection made required deeper
scrutiny cannot be held to be improper. It must be stated that the
allegations as against the appointment of respondents 4 to 9 as members of
the Commission were not without any basis. The Division Bench also noted
the fact that the details of respondents 4 to 9 disclosed that except
respondent No.9, the other respondents viz., 4 to 8 were working as Readers
in different post graduate and degree colleges in the State of U.P. The
scale of pay drawn by them was far less than the scale of pay of Principal,
for which post, the selection process was initiated. It was also noted that
one of the members viz., one Shri Ramveer Yadav was working as Reader in
Narayan College, Firozabad, was also an applicant for the post of Principal
pursuant to the Advertisement No.36 of 2003. The Division Bench has also
noted that all the above members came to be appointed on the basis that
they satisfied the qualification viz., “an eminent person having made
valuable contribution in the field of education”. The Division Bench
though did not want to proceed with the writ of quo warranto yet found that
when such challenge is made with reference to the appointment of
respondents 4 to 9 as members of the Commission, had substantial basis in
making the challenge. Therefore, though, it had to apply the de facto
doctrine, thought it fit to make a strict scrutiny of the entirety of the
selection procedure.

Reliance was then placed upon decision of this Court reported in Madan Lal
(supra). Paragraph 10 was relied upon in support of the submissions,
wherein, this Court held that when the interview committee consisted of a
sitting High Court Judge, to judge the relative merits of the candidates,
who were orally interviewed, based on the guidelines laid down by the
relevant rules governing such interviews, the assessment on merit as made
by such an expert Committee cannot be brought in challenge only on the
ground that the assessment was not proper or justified. Even going by the
said expressions used by this Court, the said paragraph need not be
elaborated further to compare the facts of this case, where the Division
Bench was not inclined to examine the validity of the appointment of the
Chairman and members of the Commission who ceased to exist at the time when
the writ petitions were heard. Therefore, the Division Bench rightly chose
to make a deeper scrutiny of the manner of selection made and found very
many illegalities in making the selection. In such circumstances, the
ratio laid down in the said judgment in the background of facts, i.e., the
Committee was headed by a Sitting High Court Judge, can have no application
to the facts of this case.

We are in full agreement with the said approach of the Division Bench and,
therefore, we hold that even while applying the de facto doctrine, the
Division Bench was well justified in proceeding to examine the correctness
of the selection made by making a deeper scrutiny and, therefore, we are
not able to appreciate the said submission that once de facto doctrine was
applied the selection should have been upheld. The said submission also
stands rejected.

When we come to the third submission, the contention of the appellants was
that while making the process of screening, as stipulated under Regulation
6(1) of the 1983 Regulations, the Commission duly followed the required
norms depending upon the selection it wanted to make for the number of
existing vacancies and the anticipated vacancies by taking appropriate
decisions as between 06.11.2006 and 22.05.2008 when the Commission fixed
the norms while permitting all the candidates to be interviewed and by
making appropriate changes in the cut-off index to enable all the
candidates to participate in the interview. The challenge to such a course
adopted by the Commission was on the ground that the last of the
advertisement was in Advertisement No.39 issued in February, 2005 and the
corrigendum issued on 23.02.2006, the last day for submission of the
application was 03.04.2006. It was therefore contended that the Rules as
existed on the last date of the submission of the application have to be
followed and any change of the recruitment process or rules of recruitment
after the cut-off date was not permissible. Any change in the screening
process or guidelines without any valid reason can always be interfered
with on being substantiated. With that basic principle in mind when we
consider the submission, we find that the Division Bench was able to note
that the details of the candidates for the post of Principal in Post
graduate colleges were called in excess of the ratio of 1:8 as provided in
Regulation 6(1) which resulted in allowing 18 candidates in the female
category and 95 candidates in the male category to participate in the
interview. It also noted that such permission granted by the Commission
ultimately resulted in around 15 candidates who were otherwise not entitled
to participate in the interview, participated and got selected.

In this context when we refer to Regulation 6(1), the substantive part of
the said regulation viz., 6(1) empowers the Commission to scrutinise the
applications and call for interview such number of candidates, as it may
consider proper. The proviso, however, empowers the Commission to limit
the number of candidates to be called for the interview if there were
excess number of applications or for any other reasons. For the expression
“for any other reasons” must always be appropriately substantiated, if on
that ground the limiting of the number of candidates was resorted to by the
Commission. Under proviso (ii) in the case of the Principal, it is
specifically stipulated that preliminary screening on the basis of academic
record, teaching and administrative experience to be carried out and that
as far as possible, the ratio between 3 to 8 times the vacancies can be
determined by the Commission, which it finds appropriate. A reading of the
Regulation 6(1) on the whole thus shows that the Commission has been
invested with substantive power to call for interview such number of
candidates as it may consider proper. Therefore, it cannot be held that it
should always restrict it to the minimum 3 to 8 times the vacancies, as the
Commission may consider proper.

In the case on hand, initially, the Commission decided to limit the number
of candidates by fixing the norms. The Commission by fixing the cut-off
mark as 34.9 for female candidates 35.1 for male candidates proceeded to
process the applications. But it came to light that subsequently the index
norms were altered and ultimately it decided to call all the candidates.
Such decisions were taken on 06.11.2006, 10.04.2008, 13.04.2008 and
22.05.2008. When we take into account the above facts, we find that while
initially the Commission decided to limit the number of candidate by fixing
index norms for female and male candidates, and proceeded to hold the
interview, based on such norms, the question for consideration is whether
the Commission could have resorted to variation of such index norms and
ultimately allow all the candidates to participate in the selection. Such
variation in the norms was resorted to by the Commission and the ultimate
selection came to be made and it was alleged that such variation was
adopted by the Commission with a view to favour certain candidates who
otherwise did not come within the zone of consideration for participation
in the interview. Such an allegation is definitely a very serious
allegation and therefore it cannot be held that such allegations are to be
simply brushed aside by accepting the stand of the Commission that
ultimately the ratio was far below 1:8 or within the said range. We are
concerned with the decision of the Commission which it took at the initial
stages before the commencement of the interview, though not before the last
date of submission of the application viz., 03.04.2006. Though the
Commission has been invested with ample powers under Regulation 6, in the
matter of calling of the candidates for interview and also limit such
calling of the candidates, the Commission is expected to display its honest
approach in its dealings. The Commission cannot follow certain practices,
which gives scope for serious criticisms especially where it relates to the
matter of selection for very responsible post of Principal to various aided
and affiliated colleges of the State University.

It will also be worthwhile to make a reference to a recent decision of this
Court reported in Salil Sabhlok (supra). This Court while considering the
competence and validity of appointment of a Chairpersons of the Public
Service Commission of the State of Punjab made a reference to two earlier
decisions of this Court viz., Ashok Kumar Yadav (supra) and In R/o Dr. Ram
Ashray Yadav, Chairman, Bihar Public Service Commission - (2000) 4 SCC 309
respectively. The extracted part of the above two referred to decisions
can be usefully quoted which are as under:

“94. In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 this Court
looked at the appointment of the Chairperson and members of the Public
Service Commission from two different perspectives: firstly, from the
perspective of the requirement to have able administrators in the country
and secondly from the perspective of the requirement of the institution as
such. In regard to the first requirement, it was said:

“It is absolutely essential that the best and finest talent should be drawn
in the administration and administrative services must be composed of men
who are honest, upright and independent and who are not swayed by the
political winds blowing in the country. The selection of candidates for the
administrative services must therefore be made strictly on merits, keeping
in view various factors which go to make up a strong, efficient and people
oriented administrator. This can be achieved only if the Chairman and
members of the Public Service Commission are eminent men possessing a high
degree of calibre, competence and integrity, who would inspire confidence
in the public mind about the objectivity and impartiality of the selections
to be made by them.”
In regard to the second requirement, it was said:
“We would therefore like to strongly impress upon every State Government to
take care to see that its Public Service Commission is manned by competent,
honest and independent persons of outstanding ability and high reputation
who command the confidence of the people and who would not allow themselves
to be deflected by any extraneous considerations from discharging their
duty of making selections strictly on merit.”
***

42. In R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission
(supra), Dr. A.S. Anand, C.J. speaking for a three Judge Bench, cautioned:

“The credibility of the institution of a Public Service Commission is
founded upon the faith of the common man in its proper functioning. The
faith would be eroded and confidence destroyed if it appears that the
Chairman or the members of the Commission act subjectively and not
objectively or that their actions are suspect. Society expects honesty,
integrity and complete objectivity from the Chairman and members of the
Commission. The Commission must act fairly, without any pressure or
influence from any quarter, unbiased and impartially, so that society does
not lose confidence in the Commission. The high constitutional trustees,
like the Chairman and members of the Public Service Commission must forever
remain vigilant and conscious of these necessary adjuncts.”

After noting the above statement of law and oft quoted principles in para
99 it has been held as under:

“99. While it is difficult to summarize the indicators laid down by this
Court, it is possible to say that the two most important requirements are
that personally the Chairperson of the Public Service Commission should be
beyond reproach and his or her appointment should inspire confidence among
the people in the institution. The first ‘quality’ can be ascertained
through a meaningful deliberative process, while the second ‘quality’ can
be determined by taking into account the constitutional, functional and
institutional requirements necessary for the appointment.”

We are referring to the above passages reported in the said decisions only
to highlight as to how the Division Bench in the impugned judgment was
justified in having frowned upon the nature of appointments of the members
and the Chairman of the Commission at whose instance the selection came to
be made and though the Division Bench could not consider the writ of quo
warranto filed against those members who were arrayed as respondents 4 to 9
in the writ petitions as they ceased to be members by that time when the
writ petitions were taken up for hearing and when it applied the de facto
doctrine, the Division Bench was obliged to make a deeper scrutiny of the
whole issue for reaching its own conclusions. We find full justification
in the said approach made by the Division Bench in the impugned judgment.

Therefore, when the Division Bench was able to note serious allegations as
against the respondents 4 to 9 who were inducted as members of the
Commission and whose qualification to be appointed as members was seriously
put to challenge and further in the course of making the selection, it was
pointed out that the Commission did not adopt a definite course in making
the selection, instead, it varied its norms on different dates, certainly,
the conclusion of the Division Bench in having frowned upon such approach
made by the Commission cannot be found fault with.

On behalf of the appellants, reliance was placed upon the Four Judges Bench
decision of this Court reported in Ashok Kumar Yadav (supra). Specific
reliance was placed upon paragraph No.21 of the said judgment wherein, this
Court considered the arguments made against a selection, which was upheld
by a Division Bench of the High Court. The submission was on the ground
that as many as 1300 and more candidates representing more than 20 times
the number of available vacancies were called for interview. So far as the
said contention was concerned, this Court held that even if more than the
required number of candidates were called, that by itself will not vitiate
the selection, in as much as something more than merely calling and unduly
large number of candidates for interview in order to invalidate the
interview and selections made.

So far as the said principle is concerned, in the case on hand, it is not
merely a violation of the proportion of the candidates called for the
interview vis-à-vis the number of posts, which were to be filed up. The
Division Bench has noted, which we have also seen, where we have found that
the Commission even while exercising its power under Regulation 6(1) was
not consistent in the matter of calling the candidates for the interview.
For very valid reasons, stated by the Division Bench, we have found that
for reasons best known to it, the Commission was varying the cut-off index
and in that process it came to light that ineligible candidates numbering
more than 100 were allowed to participate and amongst whom 15 got selected
for the post of Principal. That apart, the Division Bench has also pointed
out various other discrepancies in the selection to show that everything
was wrong in the selection made especially when it declined to examine the
plea of quo warranto on the ground by applying the de facto doctrine.
Therefore the said decision does not anyway apply to the facts of this
case.

We are, therefore, of the view that the Division Bench was well justified
in holding that the changing of the norms while applying Regulation 6(1)
for the initial screening thrown considerable doubt about the genuineness
in the selection process adopted by the Commission. In the said
circumstance the conclusion of the Division Bench that when greater faith
and trust was invested with the Commission and when the Commission breached
its own criteria and thereby acted contrary to the standards laid by it,
which resulted in an arbitrary selection made by it has to be held as well
justified. We are, therefore, not able to appreciate the submission of the
learned senior counsel for the appellants and the same is also rejected.

The next submission of the learned senior counsel was that the selection
made by the Commission is in accordance with Regulation 6, that there were
guidelines both for initial screening as well as for evaluating the merits
at the time of interview. In support of the said submission both on behalf
of the Commission as well as the appellants it was pointed out that the
guideline as required under Regulation 6(2) was formulated as early as on
06.10.1983 and that based on the said guideline, the selection process was
made. The said guideline was in fact placed before the Division Bench and
the Division Bench has extracted the guidelines dated 06.10.1983 which is
to the following effect:

“Each of the Members of an Interview Board irrespective of whether he is a
Member of the commission of an Expert shall award marks in writing to each
candidate out of a maximum of 50 marks and as per the following scheme of
grading and evaluation:-

Grade Numerical range of grader

Percent of marks Maks cut of 50

1. Outstanding 85% and above 43 and above

2. Excellent 75%-85% 38-42

3. Very Good 65%-75% 33-37

4. Good 55%-65% 28-32

5. Fair 45%-55% 23-27

6. Poor Below 45% 22 or less

The award of 22 marks of less to candidate by an Expert shall imply that
the said Expert does not consider the candidate settled for appointment. In
order for a candidate to be considered any further for merit ranking, it
would be necessary that at least one of the participating Experts should
have awarded 23 marks or more to the candidate.

The awards given by the Members of the Interview Board shall then be pooled
together to determine the overall merit individual evaluation salary of the
…..........will be done as per the following table, so as to ensure parity
between the block of Members of the Interview Board who are also Members of
the Commission on the one hand and the block of Experts on the other.

Table: Scaling Factor

|Composition of |Scaling factor for|Total of the |Marks |
|the Interview |The marks awarded |mau. | |
|Board Member of |by the block |The marks | |
|the Commission; |consisting of |awarded by | |
|Expert |Members of the |the block | |
| |Commission |Experts | |
|1. 3M+3E |1 |1 |300 |
|2. 3M+2E |1 |1.5 |300 |
|3. 2M+3E |1.5 |1 |300 |
|4. 2M+2E |1.5 |1.5 |300 |

After referring to the said guideline, the Division Bench has examined
whether the guidelines did satisfy the requirement as stipulated in
Regulation 6(2). Regulation 6(2) mentions that the Commission should
interview the candidates in accordance with the criteria, minimum standards
and the guidelines set out by it and if it consider necessary can hold
practical test also as part of interview. We are not concerned with the
practical test part of the Regulation 6(2). We are only concerned with the
requirement of prescription of criteria, minimum standards and guidelines.
After referring to the guidelines dated 06.10.1983, the Division Bench has
found that, the said guidelines merely provided for grading of the
candidates as Outstanding, Excellent, Very Good, Good, Fair and Poor and
therefore found that what was the criteria that is to be applied, the
minimum standard to be prescribed have not been spelt out in the guidelines
dated 06.10.1983.

In this context, the Division Bench has referred to the decision of this
Court in Kiran Gupta and others Vs. State of U.P. and others - (2000) 7 SCC
719, wherein, the selection made to the post of Principal of Secondary
Schools in the State of U.P. were under challenge, and one of the grounds
of challenge was about the laying down of the guidelines of the Commission
on which ground the selection was sought to be invalidated. This Court,
while dealing with the said challenge, has noted the following features in
paragraph 29. Paragraph 29 as extracted by the Division Bench can be noted
again, which reads as under:

“29. In the guidelines framed by the Commission the following aspects are
to be kept in mind while evaluating a candidate :

"Madhyamik Shiksha Ayog- The candidates called for interview have to
be adjudged by members of the Board for 75 Marks, keeping in view the
following factors:
1. Personality.
2. Knowledge of the subject.
3. Knowledge of current ideas and problems of the educational work
diagnostic attitude towards them.
4. General Knowledge.
5. Administrative ability regarding school management.
6. Self expressive and impressive views.
7. Achievement in curricular activities of the regional and State levels.”

After having prescribed such various factors with reference to which the
merits of a candidate was to be tested in the interview, this Court found
that though maximum marks for each of the item were not allocated, it held
that the members of the Commission who interviewed the candidates awarded
marks in lump individually after evaluating the candidates on the basis of
the afore mentioned factors. It was based on the said consideration, the
Court ultimately held that there was no illegality in the procedure of
overall evaluating of the candidates fixing marks for each of the items
noted above. The said case is of no comparison to the case on hand. In
the case on hand, the contention was that even though under Regulation 6(2)
it was specifically stipulated that interview will be held based on the
guidelines which should specifically state as to how consideration should
be made while holding the interview, no guidelines were formulated and
thereby leaving it open for the members of the Commission to arbitrarily
award marks while making the selection and thereby provided scope for
arbitrariness.

This Court after noting the specific criteria prescribed in the guidelines
for evaluating the merits of a candidate held that since the guidelines
provided for sufficient criteria to assess the merit of a candidate the
selection made based on such guidelines cannot be interfered with. The
Division Bench having noted the above ruling of this Court, therefore, held
that what is prescribed in the guideline dated 06.10.1983, would at best
only enable the Interviewing Committee to grade the candidates based on
their performance in the interview and that it did not provide sufficient
guidelines as was required to be provided for under Regulation 6(2). As far
as the guideline dated 06.10.1983 was concerned, as was noted by the
Division Bench as well as by us, it merely showed as to what will be the
effect of the percentage of marks that were to be allotted to each
individual candidates. Unlike the decision referred to above where each of
several factors such as personality, aptitude etc., have been specifically
prescribed in the guideline, there was no such specific factors determined
by way of guideline as was required to be done by the Commission under
Regulation 6(2). In such circumstances, the said decision is of no
assistance to the appellants but on the contrary it is in favour of the
respondents. We are therefore in full agreement with the above said
conclusion of the Division Bench and the said submission of the learned
senior counsel for the appellants as well as that of the Commission stands
rejected.

The next submission of the appellants was that the Division Bench committed
a serious factual error in respect of certain candidates with reference to
whom it gave a finding that they were permitted to participate in the
interview even though they did not fulfill the minimum qualification and on
that ground, held that their selection was unjustified. Such cases were
related to Dr. Ramesh Chand Pathak, Dr. Shashi Misra, Dr. Ram Avtar Singh,
Dr. Ikbal Habib, Dr. Udyan Misra and Dr. Suresh Jain.

Mr. Amarendra Saran learned senior counsel appearing for those appellants
took pains to draw our attention to various documents to show that the
finding of fact reached by the Division Bench was wrong and that going by
the details furnished by the respective candidates, they did fulfill the
minimum qualification as well as experience and therefore the finding to
the contrary reached by the Division Bench should be set aside. However
forceful the contention may be, when we refer to the Division Bench
judgment on issue No.7 which pertains to the above submissions, we find
that the Division Bench after noting the qualification and experience
prescribed in the advertisement examined the case of each of the above
referred to candidates and has rendered a factual finding to the effect
that they did not fulfill the minimum qualification nor the experience. In
as much as such a factual finding has been rendered by the Division Bench
after detailed reference to the facts placed before it, we are not inclined
to look into any of the documents which were placed before us at the
instance of those appellants in order to do the very same exercise as
regards the facts relating to those candidates for reaching a different
conclusion. Therefore, the said submission is also rejected.

In fact, while examining the said issue No.7, the Division Bench has also
referred to the case of one Phool Chand Singh with reference to whom, it
has found that he was involved in a serious criminal case in case
No.217/1989, wherein, charges under Sections 147, 148, 149 and 302 I.P.C.
have been framed and that even the said person was selected. It has made a
detailed reference to the criminal case filed against the said Phool Chand
Singh to state that the Commission failed to act appropriately in holding
the selection and thereby gave scope for reaching the conclusion that the
whole selection was seriously infected and consequently, the whole
selection was liable to be set aside.

It was then contended that even if the individual cases where the Division
Bench held that they were not qualified, yet allowed to participate and got
selected, based on such conclusion, the entire selection should not have
been interfered with. In so far as the said submission is concerned, in
the first instance, it must be noted that after finding the serious flaw in
the matter of selection made by the Commission, where the Division Bench
noted serious allegations as against those who were inducted as members of
the Commission who ceased to hold office by the time the writ petitions
came to be heard and thereby the Division Bench was obliged to apply the de
facto doctrine and consider the whole selection with little more care and
caution, in which process, the Division Bench was able to find out that the
relevant regulation viz., regulation 6 was seriously breached, in as much,
as there were serious flaws in the preliminary screening as well as in
permitting ineligible candidates to participate apart from lack of
necessary guidelines as prescribed under the Regulation 6(2) for holding
the interview in order to assess the merits of the candidates and therefore
as a step further, the Division Bench took note of certain instances where
it pointed out how the various factors noted by it did show the serious
lacuna in the overall selection made by the Commission. Therefore, the
individual cases cannot be isolated to state that setting aside of the
selection should be restricted to only those individual cases and the
entirety of the selection cannot be affected. We are not able to
countenance such a submission put forth on behalf of the appellants and the
same stands rejected.

On behalf of the contesting respondents, reliance was placed upon the
decision of this Court reported in Satpal and others Vs. State of Haryana
and others- (1995) Supp 1 SCC 206, paragraph 9 is relevant for our purpose,
the relevant part of it reads as under:

“9. We would like to make it clear that we have limited our consideration
to the procedure adopted at the pre-selection stage and have not thought it
necessary to examine the procedure at the post-selection stage, once we
hold that the entire selection process was tainted, we are not able to
uphold the submission of the learned counsel for the appellants that since
the appellants had received training and had passed the examination, they
should be protected.………We think that once the process of selection is found
to be tainted, whatever had flowed consequent thereto must also fall along
with the process of selection. We, therefore, see no merit in this plea.”

The above referred to principle laid down by this Court fully supports the
stand of the respondents and also in tune with what we have held in this
judgment.

In this context, it will be worthwhile to refer to the decisions relied
upon by Mr. Jitendra Mohan Sharma, learned senior counsel who appeared for
the intervenors viz., the decisions reported in O. Chakradhar (supra) and
Krishan Yadav (supra). The above decisions fully support the stand of the
private respondents that when the whole process of selection is challenged,
individual cases are of no consequence.

We also find full support to our conclusions when we deal with the
submission of Mr. Saran and Mr. Krishnakumar in contending that merely
because selection relating to some of the candidates were tainted the whole
of the selection should not be upset. In this context, the reliance placed
upon the decision reported in O. Chakradhar (supra) by Mr. Jitender Mohan
Sharma, learned senior counsel for the intervenor is well founded.
Paragraph 12 of the said decision can be usefully referred to which reads
as under:

“12. As per the report of the CBI whole selection smacks of mala fide and
arbitrariness. All norms are said to have been violated with impunity at
each stage viz. right from the stage of entertaining applications, with
answer-sheets while in the custody of Chairman, in holding typing test, in
interview and in the end while preparing final result. In such
circumstances it may not be possible to pick out or choose any few persons
in respect of whom alone the selection could be cancelled and their
services in pursuance thereof could be terminated. The illegality and
irregularity are so inter-mixed with the whole process of the selection
that it becomes impossible to sort out the right from the wrong or vice
versa. The result of such a selection cannot be relied or acted upon. It is
not a case where a question of misconduct on the part of a candidate is to
be gone into but a case where those who conducted the selection have
rendered it wholly unacceptable. Guilt of those who have been selected is
not the question under consideration but the question is could such
selection be acted upon in the matter of public employment? We are
therefore of the view that it is not one of those cases where it may have
been possible to issue any individual notice of misconduct to each selectee
and seek his explanation in regard to the large scale widespread and all
pervasive illegalities and irregularities committed by those who conducted
the selection which may of course possibly be for the benefit of those who
have been selected but there may be a few who may have deserved selection
otherwise but it is difficult to separate the cases of some of the
candidates from the rest even if there may be some. The decision in the
case of Krishna Yadav (supra) applies to the facts of the present case. The
Railway Board's decision to cancel the selection cannot be faulted with.
The appeal therefore deserve to be allowed.”

A reference to the said paragraph amply demonstrate in a case of this
nature, it will be difficult to identify such of those candidates whose
selection can be upheld and deal with the rest differently.

To the very same effect is the decision reported Krishan Yadav (supra),
paragraph 20 is relevant, which reads as under :

“20. In the above circumstances, what are we to do? The only proper course
open to us is to set aside the entire selection. The plea was made that
innocent candidates should not be penalised for the misdeeds of others. We
are unable to accept this argument. When the entire selection is stinking,
conceived in fraud and delivered in deceit, individual innocence has no
place as "fraud unravels everything". To put it in other words, the entire
selection is arbitrary. It is that which is faulted and not the individual
candidates. Accordingly we hereby set aside the selection of Taxation
Inspectors.”

Therefore, by applying the said principle, we do not find any scope for
interfering with the decision of the Division Bench.

One other submission made was that on the issue of reservation. In spite
of a ruling of this Court in Bharat Singh’s case reported in Bharat Singh
(supra) some candidates were selected based on reservation and in that
respect only four such candidates came to be selected and even in respect
of the said four candidates, one did not join, one joined and left, one
resigned and another person is going to retire soon and consequently on
that ground the selection need not be interfered with. As was noted by us,
in the earlier paragraph it is not that single instance which weighed with
the Division Bench to interfere with the selection. The Division Bench
after finding serious flaw in the whole of the selection process found that
there was serious breach of the regulations governing the selection process
and consequently set aside the whole selection. In that process, the
Division Bench also found that in spite of clear dictum of this Court in
Bharat Singh’s case, the Commission applied the rule of reservation and
quoted those instances while setting aside the selection. Therefore, the
non-joining or resignation of some of the candidates or the likelihood of
the retirement of one other candidate will be of no consequence when the
whole process of selection was affected by serious illegalities. Therefore,
the said submission also does not merit any consideration and stands
rejected.

Reliance was placed upon the decision reported in N.T. Devin Katti (supra)
in particular paragraph 15, where this Court even after finding that the
selection made for the post of Tahsildars was liable to be set aside,
ultimately was not inclined to terminate the services instead allowed the
appointees to continue in service and also directed the State Government to
create supernumerary post of Tahsildars for appointing the appellants in
that case. In that case also by way of an interim order, during the
pendency of the appeal, the appointment orders containing specific term
that the appointment should be subject to the result of the writ petition,
filed by the appellants therein. We must state that the said case is not
comparable to the facts of this case, wherein, the number of appointments
are more apart from the fact that the appointments were allowed to be made
by specific order dated 20.04.2008 by which, it was directed that the
selected candidates should execute an undertaking that in the event of they
loosing the battle, they will stand reverted to the post of Readers and
that they also undertook to pay back the difference in salary.

Before concluding, it is necessary to note that when in the earlier round
of litigation, dealt with by this Court in C.A.2351 of 2011, initially an
interim order came to be passed on 20.11.2008, by which, the selected
candidates were directed to be appointed, subject to filing of an
undertaking into this Court within one month from that date and the
undertaking was to the effect that in the event if they lose the battle,
they will be automatically reverted as Readers and the difference of salary
that would be taken as a Principal should be recovered and paid back to the
petitioners viz., the State Government. In the final order passed by this
Court on 08.03.2011, this Court has noted in paragraph 11 that the said
interim order was complied with and based on the undertaking, all the
selected candidates were duly appointed subject to the outcome of the said
appeal. Finally, on 08.03.2011, while disposing of the said appeal, the
said interim order was allowed to be continued till the writ petitions are
disposed of by the High Court. When these appeals were moved at the S.L.P.
stage, while issuing notice by order 10.05.2012, pending further orders of
this Court, the operation of the impugned judgment and order was directed
to be stayed. The interim order was subsequently continued by order dated
31.03.2015. The last para of the judgment of the Division Bench is as
follows:

“In result, all the writ petitions are decided in following manner:-

(i) Writ Petition Nos.70062 of 2006 and 29524 of 2007 are dismissed.

(ii) Writ Petition Nos.34198 of 2008 and other writ petitions of group-1
are allowed. The select lists dated 30.6.2008 and 2.7.2008 are set aside.
The selected candidates shall take steps in compliance of their undertaking
given before the apex Court in Civil Appeal No. 2351 of 2011 and other
connected appeals in accordance with law.

(iii) Writ petition No. 44358 of 2007 is allowed. The select list dated
15.5.2007 is set aside. The selected candidates shall take steps in
compliance of their undertaking given before the apex Court in respective
Civil Appeals.

(iv) Writ petition No. 38714 of 2003 and other writ petitions of group-3
are allowed in view of the judgment of the apex Court in Civil appeal No.
2352 of 2011 and other connected appeals dated 8.3.2011 in State of U.P.
Vs. Bharat Singh and others.

(v) The U.P. Higher Education Service Commission shall consider and frame
appropriate guidelines for conduct of interview for selection on the post
of Principal of Postgraduate/Degree Colleges in accordance 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.”

We fully affirm the above directions of the Division Bench and the appeals
stand dismissed.

….………………………………………...J.
[Fakkir Mohamed Ibrahim Kalifulla]

….………………………………………...J.
[S.A. Bobde]
New Delhi;
July 15, 2016

Back to Judgments