Supreme Court of India
VEERENDRA KR. GAUTAM AND OTHERSversusKARUNA NIDHAN UPADHYAY AND OTHERS
- Citation
- 2016 INSC 533
- Decided
- 15 July 2016
- Disposal
- Dismissed
Holding
Where the selection process is tainted by serious procedural irregularities and violations of Regulation 6, the entire selection must be set aside, and the prior withdrawal of writ petitions without liberty does not estop a fresh challenge.
Summary
The Supreme Court examined the selection of principals for degree and postgraduate colleges in Uttar Pradesh, where the Higher Education Services Commission had varied its screening norms and called an excessive number of candidates, some of whom were allegedly ineligible. The petitioners argued that earlier withdrawn writ petitions barred a fresh challenge (estoppel) and that the Commission’s members were improperly appointed. The Court held that the withdrawal of earlier petitions without liberty did not estop a later challenge, that the Commission’s appointment of members was infirm, and that serious procedural violations of Regulation 6(1) and 6(2) rendered the entire selection void. Applying the de facto doctrine, the Court affirmed the High Court’s deeper scrutiny and set aside all select lists, directing a fresh, lawful selection process. The appeal was dismissed.
Issues considered
- When does the withdrawal of an earlier writ petition without liberty estop filing a fresh writ petition?
- Whether the appointment of members of the Uttar Pradesh Higher Education Services Commission was invalid under Section 4(2)(e) and 4(2‑a) of the 1980 Act.
- Whether members of the selection board must be of higher rank than the candidates they interview.
- Whether the Commission framed appropriate guidelines as required by Regulation 6(2) of the 1983 Regulations.
- Whether the Commission truthfully followed the screening guidelines for calling candidates to interview.
- Whether the ratio of candidates to be called (up to 1:8 of vacancies) was justified.
- Whether candidates called and selected fulfilled the minimum qualification and experience requirements.
- Whether women candidates were illegally shifted to the male category.
- Whether the selection procedure was fair, reasonable and in accordance with the Act, Regulations and guidelines.
- Whether horizontal reservation applies to a single principal post.
- Whether petitioners who participated in the interview are estopped from challenging the selection.
- Whether the State Government had jurisdiction to direct an inquiry under Section 6 of the 1980 Act.
Legislation cited
- Uttar Pradesh Higher Education Services Commission Act, 1980s. 11(b), s. 12(4), s. 31, s. 4(2‑a), s. 4(2)(e), s. 8
- Uttar Pradesh State Universities Act, 1973
Subjects
selection processRegulation 6estoppelde facto doctrinepublic service commissionrecruitment of principalsUttar Pradesh Higher Education Services Commissionprocedural irregularitiesratio of candidatesreservationwrit petition
Judgment
[2016] 7 S.C.R. 223
VEERENDRA KR. GAUTAM AND OTHERS A
v.
KARUNA NIDHAN UPADHYAY AND OTHERS
(Civil Appeal No. 3361 of2015)
JULYIS,2016 B
[FA~(l(IR MOHAMED IBRAHIM KALIFULLA
AND S. A. BOBDE, JJ.]
Uttar Pradesh Higher Education Services Co111111ission
(Procedure for Selection of Teachers) Regulations, 1983: Regn.6 -
Selection to the post of Principal in the Degree Colleges and in
c
different Post Graduate Colleges ill the State of U.P. -
Non-compliance of Regn. 6 by the Commission - Held: A reading
of Regn. 6 shows that the Commission has been invested with
substantive power to call for interview such number of candidates
as it may consider proper and ratio between 3 to 8 times vacancies D
can be determined by Commission which it finds appropriate - In
the case on hand, initially, the Commission decided to limit the number
of candidates by fixing the norms - Commission by .fixing the cut-
off mark proceeded to process the applications - But subsequently
it altered the index norms and ultimately it decided to call all the
E
candidates - It was alleged that such variatioll was adopted llumber
of times by the Commission with a view to favour certain candidates
who otherwise did not come within the zone of consideration for
participation ill the interview - Such allegation is very serious one
and, therefore, cannot be simply brushed aside by accepting the
stand of the Commission that ultimately the ratio was within the F
range - Commission cannot follow certain practices, which give
scope for serious criticism especially where it relates to the matter
of selection for very responsible post of Prillcipal to various aided
and affiliated colleges of the State University - High Court rightly
set aside the whole selection - Uttar Pradesh Higher Education
G
Services Commission Act, 1980 - s.4(2)(e).
Doctrines/Principles: Doctrine of estoppel - When the cause
of action is different, the withdrmval of earlier writ petition without
liberty to file a fresh applicatioll, will not have ally impact in making
the fresh challenge - In the illstant case, the ll'ithdrawal of the earlier
H
223
224 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 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
B
list.
Dismissing the appeals, the Court
HELD: 1. The first submission was that prior to the holding
of the interview, two writ petitions were filed earlier which were
c simply withdrawn and since 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. The High Court rightly held that the earlier writ petition
D 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, the petitioners
chose to withdraw those writ petitions and thereafter file the
instant writ petition. That apart, in the case on hand, there were
E as many as 17 writ petitions, which were pending before the High
Court along with present writ petition. Therefore, withdrawal of
the earlier two petitions by the writ petitioner 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, when this Court observed that
F 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, there is no serious
impediment in the case of the writ petitioner in this case to voice
G his grievance along with other writ petitioners which was virtually
permitted by this Court earlier. 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
H
VEERENDRA KR. GAUTAM v. KARUNA NIDHAN 225
UPADHYAY
and a fresh challenge made to the ultimate selection on various A
grounds cannot be held to have disentitled the writ petitioners
to raise the c~allenge. [Paras 20, 23) [242-F-H; 243-A, C-D;
244-G-H]
\
State of Uttar Pradesh and others v. Bharat Singh and
others (2011) 4 SCC .120 : 2011 (4) SCR 525; B
GN.Nayak v. Goa University and others (2002) 2 SCC
712 : 2002 (1) SCR 636 - relied on•
•
Pradeep Kumar Rai and others v. Dinesh Kumar Pandey
and others (2015) 11 SCC 493 : 2015 (6) SCR 825 -
distinguished. c
2.1. The contention of the appellants was that while making
the process of screening, as stipulated under Regulation 6(1) of
1983 l{egulations, 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 D
taking appropriate decisions as between 6.11.2006 and 22.5.2008
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 High Court noted that the details of the
candidates for the post of Principal in Post graduate colleges were E
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 and such permission granted by the Commission
ultimately resulted in around 15 candidates who were otherwise F
not entitled to participate in the interview, participated and got
selected. Regulation 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 . G
any other reasons. For the expression "for any other reasons"
must al\"ays 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 H
226 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 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
B
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
c 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 different dates. Such variation in the norms was
resorted to by the Commission and the ultimate selection came
D
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
E 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. 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 displa; as honest
F approach in its dealings. [Paras 29, 30, 31] [247-E-F; 248-A-H;
249-A-D]
2.2. When the High Court 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
G 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 High Court in having frowned upon such
H approach made by the Commission cannot be found fault with. In
VEERENDRA KR. GAUTAM v. KARUNA NIDHAN 227
UPADHYAY
the case on hand, it is not merely a violation of the proportion of A
the candidates called for the interview vis-a-vis the number of
posts, which were' to be filed up. 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 reasons
best known to it, the Commission was varying the cut-off index
B
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
High Court 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 c
warra11to on the ground by applying the de facto doctrine. [Paras
35, 37) [251-F-H; 252-D-F)
3. It was contended by appellant that the High Court
committed a serious flaw in respect of certain candidates with
reference to whom it gave a finding that they were permitted to D
participate in the interview even though they did not fulfill the
minimum qualification and on that ground, held that their selection
was unjustified. A perusal of High Court's judgment shows that
the High Court after noting the qualification and experience
prescribed in the advertisement examined the case of each of
the referred candidates and has rendered a factual finding to the E
effect that they did not fulfill the minimum qualification nor the
experience. In as much as such a factual finding was rendered by
the High Court after detailed reference to the facts placed before
it, there is no reason to look into any of the documents at the
instance of those appellants in order to do the very same exercise F
as regards the facts relating to those candidates for reaching a
different conclusion. Therefore, the said submission is also
rejected. The High Court 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 High Court G
also found that in spite of clear dictum of this Court in Blum1t
Si11glt 's C<tsi::, 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 H
228 SUPREME COURT REPORTS (2016] 7 S.C.R.
A candidate will be of no consequence when the whole process of
selection was affected by serious illegalities. [Paras 45, 54] [256-
F-H; 257-A-B; 260-D-FJ .
Ashok Kumar Yadav and Ors. v. State of Haryana &
Ors. 1985 (4) sec 417 : 1985 (1) Suppl. SCR 657;
B Madan Lal & Ors. v. State of J & Kand Ors. 1995 (3)
SCC 486 : 1995 (1) SCR 908; Kiran Gupta and others
v. State of UP. and others (2000) 7 SCC 719 - held
inapplicable.
N. T. Devin Katti and Ors. v. Karnataka Public Service
c Commission & Ors. 1990 (3) SCC 157 - distinguished
Gokaraju Rangaraju v. State of Andhra Pradesh 1981
(3) SCC 132 : 1981 (3) SCR 474; Ajay Hasia & Ors.
v. Khalid Mujib Sehravardi & Ors. 1981 (1) SCC
722: 1981 (2) SCR 79; D1: Keshav Ram Pal, Reader
D and Head of Sanskrit Department and Offg. Principal,
Lajpat Rai Post-Graduate College, Sahibabad, Distt.
Ghaziabad, UP. v. UP. Higher Education Services
Commission, Allahabad & Ors. 1986 (1) SCC 671; State
of Madhya Pradesh v. Narmada Bachao Ando/an and
Anr. 2011 (7) SCC 639 : 2011 (6) SCR 443; Sarguja
E Transport Service, v. State Transport Appellate Tribunal,
Gwalior and Ors. AIR 1987 SC 88: 1987 (1) SCR
200; State of Punjab i: Sa/ii Sabhluk and others (2013)
5 SCC 1 : 2013 (5) SCR 18; Union of India & Ors. v.
0. Chakradhar (2002) 3 SCC 146 . 2002 (1)
F SCR 1091; Ramesh Chandra Sank/a v. Vikram Cement
& Ors. 2008 14 SCC 58 : 2008 (10) SCR 243; In Rio
Dr. Ram Ashray Yadav. Chairman, Bihar Public Service
Commission (2000) 4 SCC 309; Satpal and others v.
State of Haryana and others (1995) Supp 1 SCC 206
- referred to.
G
Case Law Reference
2011 (4) SCR525 relied on Para9
1981 (3) SCR474 referred to Para 11
1981 (2) SCR 79 referred to Para 11
H 1986 (1) sec 671 referred to Para 11
VEERENDRA KR. GAUTAM v. KARUNA NIDHAN 229
UPADHYAY
2011 (6) SCR 443 referred to Para 11 A
1985 (1) Suppl. SCR 657 held inapplicable Para 11
1995 (1) SCR 908 held inapplicable Para 12
19~Q (3) sec 157 distinguished Para 12
1987 (1) SCR 200 referred to Para 16 B
20p (5) SCR 18 referred to Para 17
2002 (1) SCR 1091 referred to Para 18
2008 (10) SCR 243 referred to Para 21
2015 (6) SCR 825 distinguished Para 22 c
2002 (1) SCR 636 relied on Para 23
(2900) 4 sec 309 referred to Para 32
(2900) 1 ~cc 119 held inapplicable Para 41
D
(1995) Supp 1 sec 206 referred to Para 48
· CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3361
of2015.
From the Judgment and Order dated 23.04.2012 of the High Court
of Judicature at Allahabad in Writ Petition No. 34198 of2008. E
WITH
C.A. Nos. 3363, 3364, 3365, 3366, 3367, 3368, 3369, 3370, 3371,
3372, 3373, 3374, 3375, 3376, 3377, 3378 and 3379 of2015.
S. Gurukrishna Kumar, A. Sharan, Jaideep Gupta, S. R. Singh, F
Jitendra Mohan Sharma, Sr. Advs., K. L. Janjani, Raj Singh Rana. Pankaj
Kumar Singh, Ms. Rinku Mishra, Ms. Varsha R., Manindra Dubey, Ms.
Kamakshi S. Mehlwal, Manoj K. Mishra, Sandeep Kumar Dwivedi,
Umesh Dubey, Ms. Meghna Kalra, Sanjay Mani Tripathi, Ali Jethmalani,
Hitesh Kumar Sharma, Kamal Kant Tripathi, Ms. Anu Gupta, Amit Anand
Tiwari, S. D. Singh, Ms. Bharti Tyagi, Ms. Shweta Sinha, Ms. Meenu G
Singh, Mrs. Surbhi Shukla, Ms. Anindita Mitra, Jitender Singh, Ranbir
Singh Yadav, Ms. Anzu K. Varkey, P. M. Saini, Sumit Kumar, Abhishek
Chakraborty, Ms. Kumari Supriya, Shantanu Krishna, Siddharth Sengar,
Aabhas Parimal, Kumar Ayush, Garvesh Kabra, Sanjay Kumar Visen,
Ms. V. D. Khanna, Avnish Singh, Ankur Yadav, Ms. Asha Gopalan Nair, H
230 SUPREME COURT REPORTS [2016) 7 S.C.R.
A Ms. Pooja Dhar, Alok Mishra, Gaurav Agrawal, C. D. Singh, Rajesh
Kumar Maurya, Ms. Sakshi Kakkar, M. R. Shamshad, Andleeb Naqvi,
Gaurav Srivastav, Ms. Shweta Jain, Ajit Sharma, Pahlad Singh Sharma,
Ashok Kumar Sharma, Shibashish Misra, Arunabh Chowdhury, Karma
Dorjee, Anupam Lal Das, Prashant Kumar, Advs. for the appearing
parties.
B
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J.
I. These appeals are directed against the common judgment of the
Division Bench of the High of Allahabad dated 23.04.2012 in Writ
C Application No.34198 of2008 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.
D 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
of2007. By the very same impugned judgment the Division Bench also
E dealt with another writ petition in W.P.No. 70062 of2006, 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
F 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
"·• 4; ~ ~ '.
Higher Education Services Commission, Director of Education, who also
G issued a direction not to give any posting in pursuance of the select list
dated 15.05.2007.
2. Brief facts which are required to be stated are that there were
many number of post graduate and degree colleges situated in the State
ofU.P. affiliated to the University Governed by U.P. State Universities
Act, 1973. The selection and appointment in the post graduate and
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 231
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
degree colleges were earlier made by the respective colleges in A
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
B
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 c
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
D
juncture, it is necessary to note the relevant provisions of the 1980 Act
as well as the relevant provisions in the Regulations and the Rules
formulated under the provision of the 1980 Act.
3. Under Section 4( I) 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.
E
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
Chainnan, if he is in the opinion of the State Government an eminent
person having made valuable contribution in the field of education. Sub- F
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 ifin 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 G
merely on the ground ofany 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 H
232 SUPREME COURT REPORTS [2016] 7 S.C.R.
A Commission have been set out in Section 1I. 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 thatthe
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
B
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.
c 4.. By virtue of the powers under Section 31 of the 1980 Act, the
Uttar Pradesh Higher Education Services Commission (Procedure for
Selection of Teachers) Regulations 1983 (hereinafter called the 1983
Regulations) came to be framed and was notified on 20.08.1983.
Regulation 2(h) defines a 'Teacher' to mean a person employed for
D 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 ofa 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·
E 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 applicatiqns and call for interview such number
of candidates as it may consider proper : Provided that, if on
F 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
G 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
H
VEERENDRAKR.GAUTAM v. KARUNAN1DHANUPADHYAY 233
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
administrative experience ; A
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 B
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. c
(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 womens D
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. " E
5. Under the Uttar Pradesh Higher Education Services Commission
(Procedure and Conduct of Business) Regulations 1983, provision of
Constitution oflnterview 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 F
challenge to the Division Bench order is made.
6. The Division Bench having considered the various submissions
of the respective parties formulated the following issues for consideration
which are as under:
"]. Whether the writ petition No. 34198 of 2008, Dr. Karuna G
Nidhan and another Vs. State of U.P. and others is liable to
be dismissed since the petitioners earlier two writ petitions
were dismissed as withdrawn on 3. 7.2008 without obtaining
any leave to file a fresh writ petition?
H
234 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H namely: dependent of freedom fighter and physically
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 235
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
handicapped is valid who otherwise could not have been A
included in the select list?
11. Whether the petitioners who had participated in the
interview are estopped by their conduct and cannot be allowed
lo challenge the selection on the post of Principal declared
on 15.5.2007 and 30.6.200812. 7.2008? B
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? C
13. To what relief the petitioners are entitled in these writ
petitions?"
7. On issue No. I 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, D
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 E
their appointment as members of the Commission, but applying the de
facto doctrine, proceeded to hold that strict analysis of the selection
made by those members was necessitated.
8. On the above said basis, the Division Bench proceeded to deal
with the other issues formulated by it. The Division Bench in its ultimate
F
analysis held that there were serious lapses in the procedure followed
by the Commission in inaking 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, G
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.
H
236 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 9. Before proceeding further it will be necessary to make reference
to an earlier judgment of this Court in Civil Appeal No.2351 of201 I 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
B 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 I affiliated degree colleges. The State Government was aggrieved
in as much as the State Government had earlier directed for holding an
c enquiry into the misfeasance in the matter of seiection 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
D 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
E raised and held that the High Court was free to examine all issues regarding
the selection proces~ 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
F 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 ofReaders 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
G aspects of the matter is open for examination, in which, everyone connected
with the selection process will have an opportunity to place his I her point
of view.
10. Keeping the above judgment dated 08.03.2011, passed in
C.A.No.2351 of2011, we proceeded with the hearing of these appeals.
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 237
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
We heard the submissions of Mr. S. Gurukrishna Kumar, Mr. Amarendra A
Saran and Mr. Raj iv 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,
8
learned senior counsel for the intervenors.
11. Mr. S. Gurukrishna Kumar, in his submissions after referring
to the relevant facts and the regulations submitted that the Regulations
gave the discretion to the Commission whether to limit the number of
candidates or not, the ratio prescribed in the Regulations under the proviso
to Regulation 6( 1) viz., 3 to 8 times of the candidates is only a guideline
c
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 D
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, E
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 n!)t 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 F
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 (I) 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 G
Education Services Commission, Allahabad & Ors. - 1986 (I) SCC
671, State of Madhya Pradesh v. Narmada Bachao Andolan and
Anr. - 2011 (7) SCC 639, Ashok Kumar Yadav and Ors. v. State of
Ijaryana & Ors.- 1985 (4) SCC 417 and Bharat Singh (supra).
H
238 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 12. Mr. Rajiv Dutta, learned senior counsel appearing for the
appellants in C.A.No.3361 of2015 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,
B
their appointments should not be interfered. The learned senior counsel
relied upon Madan Lal & Ors. v. State of J & Kand 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.
13. Shri Amarendra Saran, learned senior counsel appearing for
c the appellants in C.A.No.3366 of2015 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.
D 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 findingthat the Commission members were lower
E in rank and status was not tenable and that the finding on the principle of
estoppel was contrary to law.
14. The learned senior counsel representing the other appellants
adopted the arguments of Mr. S. Gurukrishna Kumar and Mr. Amarendra
Saran.
F
15. Mr. Makarand D. Adkar, learned counsel for the appellant in
C.A.3363 of2015 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
G adopted the arguments of the other senior counsel.
16. Mr. Jaideep Gupta, learned senior counsel for the Commission
submitted that two groups of petitioners made a challenge and that one
group went to Court at the time of advertisement but withdrew without
reserving any liberty but later filed substantive writ petition after the
H interview result, where grounds were raised even relating to the process
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 239
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
of selection. According to the learned senior counsel the other group A
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
8
the writ petition and withdrew the same without liberty, the Sarguja
Transport ,';ervice, 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 c
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 thatthe 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
D
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 of34.1. 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 E
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
F
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. I 0.1983, which have been duly followed.
The learned senior counsel submitted that the said 1983 guidelines were
also accepted by this Court in the judgment repo11ed in Dr. Keshav
Ram Pal (supra). The learned senior counsel further contended that G
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.
H
240 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 17. As against the above submissions, Mr. C. U. Singh, learned
senior counsel appearing for the contesting private respondents, in his
submissions, while meeting the arguments on estoppel, contended that
there were 16 writ petitions in which the Division Bench passed the
impugned judgment and therefore, the withdrawal of two earlier writ
B . petitions will not have any effect on this judgment. The learned senior
counsel also subinitted 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
c 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
D
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
E 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
F
invalid was well justified. The learned senjor counsel relied upon the
decision reported in State of Punjab Vs. Salil Sabhlok and others -
(2013) s sec t.
18. Mr. Jitendra Mohan Sharma, learned senior counsel who
appeared for the petitioner in a writ petition before the High Court and
G who has filed l.A.No.15/2013 in C.A.3361 of2015 for intervention,.
submitted that when the whole process of selection was challenged, the
consideration of individual cases is ofno 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
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 241
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
not in a position to deal with the issue of quo warranto and consequently, A
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.
B
19. Heving 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 learn1;p counsel for the appellants can be noted as
c
under:
(i) Since some of the contesting private respondents had
moved the High Court earlier by way of a writ petition raising
certain challenges to the very same selection and since those
writ petitions were withdrawn without any reservation or D
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 &1r1:uja Transport Services (supra).
(ii) When once the High Court decided to apply the de E
facto doctrine on finding that respondents 4 to 9 ceased to
hold office as members of the Commission, it ought not to
have inte1fered with the selection, by applying the principles
laid down in the judgment reported in Gokamju Rangaraju
(suprq). F
(iii) The Co111111issio11 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 G
selection, the cutoff index was fixed which was subsequently
altered, all of which were done well before the interview was
held.
(iv) The selection made by the commission was in accordance
H
242 SUPREME COURT REPORTS [2016) 7 S.C.R.
A with Regulation 6 of the 1983 Regulations, that there were
guidelines both for initial screening as well as for evaluating
the merits at the time of interview.
(v) As far as the individual cases who are the appellants
in C.A.3363 of 2015 against whom specific findings have
B been rendered by the High Court to hold that their selection
was bad, the question for consideration is whether such
finding of facts are true or not.
(vi) Even if the individual cases where the Division Bench
held that they were not qua! ified, but yet selected and assuming
c such conclusion drawn by the Division Bench was correct,
that will not have any effect on the entire selection.
(vii) On the issue pertaining to reservation, it was pointed
out that in the earlier round i.e. in the judgment reported in
Bharat Singh (supra), this Court ruled that since the posts of
D Principal are single post, rule of reservation will not apply.
Therefore, when no reservation was possible, if any of the
candidate has been appointed 011 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
E other person had resigned and one is going to retire and
therefore on that score, there was no scope for inte1ference.
20. As far as the first submission is co1.cerned, 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.,
F W.P.Nos.26501 and 27600 of2008, 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.,
G
W.P.No.34198 of2008. 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
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 243
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
writ petitions and thereafter file the present W.P.No.34198 of2008. The A
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
B
petitioners m"ving 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 forthe contesting private respondents,
there were as many as 17 writ petitions, which were pending before the c
High Court along with W.P.34198 of2008. Therefore withdrawal of the
earlier two petitions by the writ petitioner in W.P.No.34198 of2008 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
Bliarat Sitzgli 's case (supra), when this Court in its order dated
D
08.03.2011, passed in C.A.2351 of201 l, 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 E
other writ petitioners which was virtually permitted by this Court earlier.
21. Reliance was placed on behalf of the appellants in the decision
reported in Ramesh Chandra Sankla Vs. Vikram Cement & Ors.-
2008 14 sec 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 F
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 G
his claim. In such cases, obviously, public policy requires that
he should nqt start fresh round of litigation and the Court
will not allow him to re-agitate the claim which he himself
had given up earlier. "
H
244 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 22. Reliance was placed upon a recent decision of this Court
reported in Pradeep Kumar Rai and others Vs. Dinesh Kumar
Pandey and others - (2015) 11 SCC 493, paragraph 17 was relied
upon to contend that the candidates having participated in the process of
interview and not challenged it till the results were declared cannot be
allowed to approbate and reprobate and on that principle, the challenge
B
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 ofresults. This Court therefore held that such an indifferent
attitude displayed in making the challenge disentitle them to seek for any
c 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 6of1983
D
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 al legations of malpractice in the matter of selection, there is no
scope to apply the said decisions to the facts of this case.
E
23. On behalf of the respondents reliance was placed upon a
decision of this Court reported in G.N.Nayak Vs. Goa University and
others - (2002) 2 SCC 712 on the question of estoppel. In an identical
situation, this Court held that when the cause of action were different,
the withdrawal of earlier writ petition without liberty t0 file a fresh
F 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
ofreasoning 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
G 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.
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 245
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
24. It was contended on behalf ofthe appellants that the withdrawal A
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
B
submission on the ground of principle of estoppel. We therefore reject
the said submission outright.
25. The next submission of the appellants was that once the High
Court decided to apply the de facto doctrine, on finding that the members
of the Commission viz., the respondents 4 to 9 in the writ petition ceased
to hold office, it ought not to have interfered with the selection and in
c
support of the said submission, reliance was placed upon Gokar<tju
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 D
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 E
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 ofpublic 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 F
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.) " G
26. It is no doubt well settled that the acts of the officers de facto
performed by them within the scope of their assumed authority in the
interest of the public or the third persons and not for their own benefits
are generally held valid and binding as if they were the acts of the officers
de Jure. A reading of the said paragraph does not give an omnibus H
246 SUPREME COURT REPORTS [2016] 7 S.C.R.
A authority even while applying de facto doctrine to hold that every illegal
acts or acts performed which smacks of ver; 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
B
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
c 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 ofrespondents 4 to 9 as
D
members of the Commission were not without any basis. The Division
Bench also noted the fact that the details ofrespondents 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
E 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 CollPge, Firozabad, was also
an applicant for the post of Principal pursuant to th.: Advertisement No.36
of2003. The Division Bench has also noted that all the above members
came to be appointed on the basis that they satisfied the qll ... lification
F
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,
G though, it had to apply the de facto doctrine, thought it fit to make a
strict scrutiny of the entirety of the selection procedure.
27. Reliance was then placed upon decision of this Court reported
in Madan Lal (supra). Paragraph I0 was relied upon in support of the
submissions, wherein, th is Court held that when the interview committee
H consisted of a sitting High Court Judge, to judge the relative merits of
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 247
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the candidates, who were orally interviewed, based on the guidelines A
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
B
case, where the Division Bench was not inclined to examine the val id ity
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 c
said judgment in the background of facts, i.e., the Committee was headed
by a Sitting High Court Judge, can have no application to the facts of this
case.
28. We are in full agreement with the said approach of the Division
Bench and, therefore, we hold that even while applying the de facto D
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.
E
29. When we come to the third submission, the contention of the
appellants was that while making the process of screening, as stipulated
under Regulation 6(1) of the 1983 Regulations, the Commission duly
followed the required norms depending upon the selection it •Nanted to
make for the number of existing vacancies and the anticipated vacancies
by taking appropriate decisions as between 06.1 I .2006 and 22.05.2008 F
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, G
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
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248 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 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 ofl :8 as provided in Regulation 6(1) which resulted in allowing 18
B
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.
c 30. In this context when we refer to Regulation 6( I), the substantive
part of the said regulation viz., 6( I) 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
D 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 lirriiting 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
E 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( I) 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.
F Therefore, it cannot be held that it should always restrict it to the minimum
3 to 8 times the vacancies, as the Commission may consider proper.
31. In the case on hand, initially, the Commission decided to limit
the number of candidates by fixing the norms. The Commission by
fixing the cut-off mark as 34.9 for female candidates 35.1 for male
G 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 ofcandidate by fixing index nonns for female and male
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 249
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
candidates, and proceeded to hold the interview, based on such norms, A
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
B
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 I :8 or within the said range. We are concerned with the decision c
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 µowers under Regulation 6, in the matter
of calling of the candidates for interview and also limit such calling of
D
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. ·
32. It will also be worthwhile to make a reference to a recent E
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., As/wk Kum"r
Yadav (supra) and In Rio Dr. Ram Ashray Yadav, Chairman, Bihar F
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 ofthe Chairperson and G
members of the Public Service Commission from tll'o different
perspectives:firstly,from the perspective ofthe requirement to have
able administrators in the count1y and secondly from the perspective
of the requirement of the institution as such. In regard to the first
requirement, it was said:
H
250 SUPREME COURT REPORTS [2016] 7 S.C.R.
A "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
B
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 111e111bers of the Public Service Commission are eminent
men possessing a high degree of calibre, co111petence and
c 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 eve1y
D 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
E extraneous considerations from discharging their duty of
making selections striCtly on merit. "
***
42. In RIO Dr. Ram Ashray Yadav, Chairman, Bihar Public
Service Commission (supra), Dr. A.S. Anand, C.J. speaking
F for a three Judge Bench, cautioned:
"The credibility of the institution of a Public Service
Co111111ission is founded upon the faith of the co111mon man
in its proper functioning. The faith would be eroded and
confidence destroyed if it appears that the Chairman or
G the 111embers of the Commission act subjectively and not
objectively or that their actions are suspect. Society expects
honesty, integrity and complete objectivity from the
Chairnian and me111bers ofthe Commission. The Commission
must act fairly, without any pressure or influence from any
quarter, unbiased and impartially, so that society does not
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 251
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
lose confidence in the Commission. The high constitutional A
trustees, like the Chairman and members of the Public
Service Commission must forever remain vigilant and
conscious of these necessary adjuncts. "
33. After noting the above statement oflaw and oft quoted principles
in para 99 it has been held as under: 8
"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 impire confidence among the people c
in the institution. The first 'quality' can be ascertained through
a meaning/it! deliberative process. while the second 'quality'
can be determined by taking into account the constitutional,
functional and institutional requirements necessary for the
appointment. "
D
34. We are referring to the above passages reported in the said
decisions only to highlight as to how the Division Bench in the impugned
judgment was justified in having frowned upon the nature ofappointments
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 E
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 F
by the Division Bench in the impugned judgment.
35. Therefore, when the Division Bench was able to note serious
allegations as against the respondents 4 to 9 who were inducted as
members of the Commission and whose qualification to be appointed as
members was seriously put to challenge and further in the course of G
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.
H
252 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 36. On behalf of the appellants, reliance was placed upon the
Four Judges Bench decision of this Court reported in As/wk 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
B
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
c of candidates for interview in order to invalidate the interview and
selections made.
37. So far as the said principle is concerned, in the case on hand,
it is not merely a violation of the proportion of the candidates called for
the interview vis-a-vis the number of posts, which were to be filed up.
D 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( I) 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 lightthat ineligible
E candidates numbering more than I 00 were allowed to participate and
amongst whom IS 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 ll'arra1110 on the
F ground by applying the de facto doctrine. Therefore the said decision
does not anyway apply to the facts of this case.
38. We are, therefore, of the view that the Division Bench was
well justified in holding that the changing of the norms while applying
Regulation 6( 1) for the initial screening thrown considerable doubt about
G 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
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 253
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the submission of the learned senior counsel for the appellants and the A
same is also rejected.
39. The next submission of the learned senior counsel was that
the selection made by the Commission is in accordance with Regulation
6, that there were guidelines both for initial screening as well as for
evaluating the merits at the time of interview. In support of the said B
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
fonnulated 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. I 0.1983 which is to the following effect: c
"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:- D
Grade Numerical range of grader
Percent of marks Maks cut of 50
1. Outstanding 85% and above 43 and above
E
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
F
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 G
11ecessary that at least 011e of the participati11g Experts should
have awarded 23 marks or more to the ca11didate.
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
H
254 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 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
8
Composilion of Scaling Jae/or Tola/ of the ma11. Marks
the fnlerview for The marks The marks
Board Member awarded by the awarded by the
of the block consisting block Experts
Co1111r.issio11; of Members of
c Expert the Commission
I. 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
D
40. After referring to the said guideline, the Division Bench has
examined whether the guidelines did satisfy the requirement as stipulated
in Regulation 6(2). Regulation 6(2) mentions that the Commission should
interview the candidates in accordance with the criteria, minimum
standards and the guidelines set out by it and if it consider necessary can
E 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
F the candidates as Outstanding, Excellent, Very Good, Good, Fair and
Poor and therefore found that what was the criteria that is to be applied,
the minimum standard to be prescribed have not been spelt out in the
guidelines dated 06.10.1983.
41. In this context, the Division Bench has referred to the decision
G of this Comi in Kiran Gupta and otlters 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 qf 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
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 255
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
noted the following features in paragraph 29. Paragraph 29 as extracted A
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 B
75 M1rks, 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. C
4. General Knowledge.
5. Administrative ability regarding school management.
6. Self expressive and impressive views.
7. Achievement in curricular activities of the regional and
D
State levels. "
42. After having prescribed such various factors with reference
to which the merits of a candidate was to be tested in the interview, this
Court found that though maximum marks for each of the item were not
allocated, it held that the members of the Commission who interviewed
the candidates awarded marks in lump individually after evaluating the E
candidates on the basis of the afore mentioned factors. It was based on
the said consideration, the Court ultimately held thatthere 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 F
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. G
43. This Court after noting the specific criteria prescribed in the
guidelines for evaluating the merits of a candidate held that since the
guidelines provided for sufficient criteria to assess the merit ofa candidate
the selection made based on such guidelines cannot be interfered with.
H
256 SUPREME COURT REPORTS [2016) 7 S.C.R.
A 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
B
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
c 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 ofno 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
D
that of the Commission stands rejected.
44. The next submission of the appellants was that the Division
Bench committed a serious factual error in respect of certain candidates
with reference to whom it gave a finding that they were permitted to
participate in the interview even though they did not fulfill the minimum
E 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. lkbal Habib, Dr. Udyan Misra and Dr. Suresh
Jain.
45. Mr. Amarendra Saran learned senior counsel appearing for
F 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
G 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
H
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 257
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
qualification nor the experience. In as much as such a factual finding A
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
B
submission is also rejected.
46. In fact, while examining the said issue No.7, the Division Bench
has also referred to the case of one Phool Chand Singh with reference
to whom, it has found that he was involved in a serious criminal case in
case No.217/1989, wherein, charges under Sections 147, 148, 149 and
302 l.P.C. have been framed and that even the said person was selected.
c
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. D
47. It was then contended that even ifthe 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 E
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 F
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 G
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
H
258 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 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.
4G. On behalf of the contesting respondents, reliance was placed
upon the decision of this Court reported in Satpal and others Vs. State
B of Harymia 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
c 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
D 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.
E
49. In this context, it will be worthwhile to refer to the decisions
relied upon by Mr. J itendra Mohan Sharma, learned senior counsel who
appeared for the intervenors viz., the decisions reported in 0.
Chakradhar (supra) and Krishan Yadav (supra). The above decisions
fully support the stand of the private respondents that when the whole
F process of selection is challenged, individual cases are of no consequence.
50. We also find full support to our conclusions when we deal
with the submission of Mr. Saran and Mr. Krishnakumar in contending
that merely because selection relating to some of the candidates were
tainted the whole of the selection should not be upset. In this context,
G the reliance placed upon the decision reported in 0. 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
H ma/a fide and arbitrariness. All norms are said to have been
VEERENDRA KR. GAUTAM v. KARUNA NIDHAN UPADHYAY 259
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
violated with impunity at each stage viz. right ji-0111 the stage A
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
B
and their services in pursuance thereof could be terminated.
The .;/legality 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 c
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
D
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 E
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 F
appeal therefore deserve to be allowed. "
51. A reference to the said paragraph amply demonstrate in a
case of this nature, it will be difficult to identify such of those candidates
whose selection can be upheld and deal with the rest differently.
G
52. To the very same effect is the decision reported Krislta11
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 H
260 SUPREME COURT REPORTS (2016] 7 S.C.R.
A 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 arbitrmy. It is that which is faulted and
not the individual candidates. Accordingly we hereby set aside
B
the selection of Taxation lmpectors."
53. Therefore, by applying the said principle, we do not find any
scope for interfering with the decision of the Division Bench.
54. One other submission made was that on the issue ofreservation.
c In spite ofa 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.
D As was noted by us, in the earlier paragraph it is not that single instance
which weighed with the Division J?ench 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
E that process, the Division Bench also found that in spite of clear dictum
of this Court in Bharat Sing/i's case, the Commission applied the rule
ofreservation 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
F serious illegalities. Therefore, the said submission also does not merit
any consideration and stands rejected.
55. Reliance was placed upon the decision reported in N.T. Devin
Katti (supra) in pa11icular paragraph 15, where this Court even after
finding that the selection made for the.post ofTahsildars was liable to be
G 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 ofTahsildars 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
H specific term that the appointment should be subject to the result of the
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY 261
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
writ petition, filed by the appellants therein. We must state that the said A
· case is not comparable to the facts of this case, wherein, the number of
appointments are more apa11 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
B
of Readers and that they also undertook to pay back the difference in
salary.
56. Before concluding, it is necessary to note that when in the
earlier round of litigation, dealt with by this Court in C.A.2351 of201 I,
initially an interim order came to be passed on 20.11.2008, by which, the
selected candidates were directed to be appointed, subject to fi Iing of an
c
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 D
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 E
were moved at the S.L.P. stage, while issuing notice by order 10.05.2012,
pending fut1her 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: F
"'Jn result, all the writ petitions are decided in following
manner:-
(i) Writ Petition Nos. 70062 of 2006 and 29524 of 2007 are
dismissed.
G
(ii) Writ Petition Nos.34198 of 2008 and other writ petitions
of group-I 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. H
262 SUPREME COURT REPORTS . [2016~ 7 S.C.R.
A (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
B ·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
c 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 I 983 Regulations and further take early
steps for filling the vacant posts of Principal of Postgraduate/
Degree Colleges in accordance with law.
D
Parties shall bear their own costs."
57. We fully affirm the above directions of the Division Bench
and the appeals stand dismissed.
Devika Gujral Appeals dismissed.
E
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