# • [2011) 4 S.C.R. 525 STATE OF U.P. AND ORS v. BHARAT SINGH AND ORS

- **Citation:** [2011] 4 S.C.R. 525
- **Court:** Supreme Court of India
- **Decided:** 2011-03-08
- **Case number:** Civil Appeal No. 2351 of 2011
- **Bench:** V.S. Sirpurkar, T.S. Thakur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2011-4-s-c-r-525-state-of-u-p-and-ors-v-bharat-singh-and-ors-27629
- **Pages:** 45

## Headnote

Uttar Pradesh Higher Education Services Commission
Act, 1980:
Purpose of the Act - Discussed.
A
B
c
Post of Principal in affiliated/aided Degree and PostGraduate institutions - Whether amenable to reservation -
Held: The post of principal in aided/affiliated institution being
D
a single post in the cadre is not amenable to any reservation
- Interchangeability of the post and transferability of
incumbents to another post in the same cadre are essential
attributes of a cadre, which is absent in the case of post of
Principal - There is no power vested in the State Government
or any other authority for that matter to transfer the Principal
E
from one institution to another institution as it may do for
instance in the case of Government run institutions where
Principal from one government college may be transferred to
another government college in the same cadre - There is no
cadre of Principals serving in different aided and affiliated
F
institutions and that Principal's post is a solitary post -
Reservation of such a post is clearly impermissible not only
because the Reservation Act of 1994 provides for reservation
based on the 'cadre strength' in aided institutions but also
because such strength being limited to only one post in the
G
cadre is legally not amenable to reservation - Uttar Pradesh
Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and other Backward Classes) Act, 1994 -
525
H
526
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A Service law -
Reservation -
Education/Educational
institutions.
Selection process - Complaints received by State
Government against the selection process alleging large scale
8 irregularities and ma/practices of serious nature - State
Government ordered appointment of Divisional Commissioner
as an inquiry officer and withholding of appointment orders in
favour of selected candidates - Challenged by selected
candidates before High Court by way of writ petitions - High
C court quashing the appointment of the enquiry officer and
issuing a mandamus to the Selection Commission to make
placements in favour of selected candidates- Held: High Court
was justified in quashing the appointment of the enquiry officer
- High Court had given an opportunity to the counsel of State
to take instructions whether the Government intended to
D institute any further enquiry in the matter - Despite the
opportunity, the counsel did not report any instructions in the
matter- High Court, therefore, proceeded on the basis that the
Government did not intend to conduct any further enquiry into
the matter and accordingly quashed the order appointing the
E enquiry officer as a/so the instructir.'is :ssued by hi,--;; .-:yc:.inst
the making of the appointments - Question whether there were
any malpractices and if so whether the selection process could
be nullified by the State Government in exercise of its power
u/s. 6 of the 1980 Act or Article 154 of the Constitution left open
F in the light of the fact that the question regarding legality of the
selection process is pending adjudication before the High
Court where all parties concerned would have an opportunity
to present their respective cases - Selected candidates who
were appointed on the basis of the selection process and who
G had filed undertakings before Supreme Court shall, therefore,
be impleaded as parties to the pending writ petitions to avoid
any technical infirmity in the proceedings and any consequent
delay in the disposal of the matter - In such circumstances, a
parallel enquiry at the Government level info those questions
H
•
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND 527
ORS.
would be unnecessary - Directions passed - Constitution of A
India, 1950 - Article 154.
A consolidated advertisement was issued by U.P.
Higher Education Service Commission inviting
applications for the post of Principals in aided/affiliated
8
Degree and Post-Graduate colleges. The validity of
advertisement was challenged in large number of writ
petitions on the ground that

## Text

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•
[2011) 4 S.C.R. 525
STATE OF U.P. AND ORS.
v.
BHARAT SINGH AND ORS.
(Civil Appeal No. 2351 of 2011)
MARCH 8, 2011
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]
Uttar Pradesh Higher Education Services Commission
Act, 1980:
Purpose of the Act - Discussed.
A
B
c
Post of Principal in affiliated/aided Degree and PostGraduate institutions - Whether amenable to reservation -
Held: The post of principal in aided/affiliated institution being
D
a single post in the cadre is not amenable to any reservation
- Interchangeability of the post and transferability of
incumbents to another post in the same cadre are essential
attributes of a cadre, which is absent in the case of post of
Principal - There is no power vested in the State Government
or any other authority for that matter to transfer the Principal
E
from one institution to another institution as it may do for
instance in the case of Government run institutions where
Principal from one government college may be transferred to
another government college in the same cadre - There is no
cadre of Principals serving in different aided and affiliated
F
institutions and that Principal's post is a solitary post -
Reservation of such a post is clearly impermissible not only
because the Reservation Act of 1994 provides for reservation
based on the 'cadre strength' in aided institutions but also
because such strength being limited to only one post in the
G
cadre is legally not amenable to reservation - Uttar Pradesh
Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and other Backward Classes) Act, 1994 -
525
H
526
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A Service law -
Reservation -
Education/Educational
institutions.
Selection process - Complaints received by State
Government against the selection process alleging large scale
8 irregularities and ma/practices of serious nature - State
Government ordered appointment of Divisional Commissioner
as an inquiry officer and withholding of appointment orders in
favour of selected candidates - Challenged by selected
candidates before High Court by way of writ petitions - High
C court quashing the appointment of the enquiry officer and
issuing a mandamus to the Selection Commission to make
placements in favour of selected candidates- Held: High Court
was justified in quashing the appointment of the enquiry officer
- High Court had given an opportunity to the counsel of State
to take instructions whether the Government intended to
D institute any further enquiry in the matter - Despite the
opportunity, the counsel did not report any instructions in the
matter- High Court, therefore, proceeded on the basis that the
Government did not intend to conduct any further enquiry into
the matter and accordingly quashed the order appointing the
E enquiry officer as a/so the instructir.'is :ssued by hi,--;; .-:yc:.inst
the making of the appointments - Question whether there were
any malpractices and if so whether the selection process could
be nullified by the State Government in exercise of its power
u/s. 6 of the 1980 Act or Article 154 of the Constitution left open
F in the light of the fact that the question regarding legality of the
selection process is pending adjudication before the High
Court where all parties concerned would have an opportunity
to present their respective cases - Selected candidates who
were appointed on the basis of the selection process and who
G had filed undertakings before Supreme Court shall, therefore,
be impleaded as parties to the pending writ petitions to avoid
any technical infirmity in the proceedings and any consequent
delay in the disposal of the matter - In such circumstances, a
parallel enquiry at the Government level info those questions
H
•
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND 527
ORS.
would be unnecessary - Directions passed - Constitution of A
India, 1950 - Article 154.
A consolidated advertisement was issued by U.P.
Higher Education Service Commission inviting
applications for the post of Principals in aided/affiliated
8
Degree and Post-Graduate colleges. The validity of
advertisement was challenged in large number of writ
petitions on the ground that the post of Principals being
single posts in the cadre was not amenable to reservation.
By interim order, the High Court directed the Commission
C
that the post of Principal should to be treated as nonreserved posts. The Commission issued a fresh
advertisement inviting applications for 140 posts of
Principals in Degree and Post-Graduate colleges. The
entire selection process was subject to the outcome of the
writ petitions pending before the High Court. A select list D
was published in terms of Notification dated 15th May 2007.
With the publication of select list, the writ petitions pending
before the High Court were dismissed as infructuous. The
High Court while doing so noted the submission made on
behalf of the Commission that there was no cadre of E
Principals in the Post Graduate colleges and the posts of
Principals were not interchangeable or transferable.
Meanwhile, the appellant-State of U.P. received
number of complaints against the said selection alleging
F
large scale irregularities and malpractices of serious
nature in the selection procedure and demanding an
enquiry into the same. On 12th June, 2007, the State
Government appointed the Divisional Commissioner to.
hold an enquiry into the allegations and to submit a report.· G
The Divisional Commissioner in turn asked for certain
information from the Service Commission in connection
with the inquiry with a copy to the Director of Education
requesting him to show restraint in issuing the placement
H
•
528
SUPREME COURT REPORTS
[2011) 4 S.C.R.
A orders in termr of the recommendations received from the
Service
Commission.
Aggrieved
by
the
said
communicatior, the selected candidates filed writ petitions
before the High Court challenging the notification of
appointment of the Divisional Commissioner as an inq ·iry
B officer and the letter written by him to the Director of
Education asking him to withhold the issue of placement
orders in favour of the selected candidates. While the writ
petitions were still pending disposal, the Divisional
Commissioner submitted a preliminary inquiry report in
C which he recorded prima facie conclusion that a series of
irregularities and malpractices were committed in the
selection process.
The High Court passed the interim order staying the
notification of appointment of the Divisional
D Commissioner and directing the respondent to issue the
appointment letters to the selected candidates. The State
filed special leave petition before the Supreme Court
against the interim order. The Supreme Court stayed the
interim direction in so far it related to issuance of
E appointment letters to the selected candidates.
The Hi~h court ultimately allowed the writ petitions
quashing the two orders and issued a mandamus to the
Selection Commission to make placements in favour of the
F selected candidates. The instant appeals were filed
challenging the order of .ne High Court.
An interim order dated 20th November, 2008 was
passed by the Supreme Court directing the appellantState to appoint the selected candidates-respondents as
G Principals of various aided non-governmental degree
colleges and post graduate colleges subject to decision
of the appeals provided the respondents filed
undertakings to the effect that in case they lose the battle
they would stand reverted to the posts of readers and the
H difference of salary drawn by them as Principals would be
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
529
ORS.
paid back to the State. The State has pursuant to the said
A
directions appointed the selected candidates upon their
filing undertaking before the Supreme Court with the result
that all the selected candidates were duly appointed
subject to the outcome of the instant appeals and subject
to the conditions stipulated in he interim order.
B
The questions which arose for consideration in the
instant appeals were whether the High Court was justified
in quashing the appointment of the enquiry officer
appointed to look into the allegations of malpractice C
allegedly committed in the course of selection process and
. whether the posts of Principals in different affiliated/aided
Degree and Post-~raduate institutions constituted a cadre
and were, therefore, subject to reservation as prescribed
under the provisions of the Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and
D
other Backward Classes) Act, 1994.
Disposing of the appeals, the Court
HELD: 1. The selection of Principals in affiliated/aided
E
Degree and Post-graduate colleges is regulated by the
Uttar Pradesh Higher Education Services Commission Act
and the Rules and Regulations framed thereunder. The
selection process was initiated and concluded by the
Commission treating the post to be open category post
F
pursuant to the interim ciirections issued by the High Court. ~
The select list was also duly notified. In the ordinary course
recommendations of a statutory Commission established
for selecting suitable candidates as teachers including
Principals for the colleges ought to get the respect it
deserved. However, an enquiry was initiated by~he State
G
Governm~nt on the basis of some CQt11plaints received
culminating in the submission of a prelift\{hary report
finding fault with the procedure adopted by the
Commiss.ion in the conduct of the selection process. The
High Court had given an opportunity to the counsel of H
530
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A State to take instructions whether the Government
intended to institute any further enquiry in the matter.
Despite the opportunity, the counsel did not report any
instructions in the matter. The High Court proceeded on
the basis that the Government did not intend to conduct
B any further enquiry into the matter and accordingly
quashed the order appointing the enquiry officer as also
the instructions issued by him against the making of the
appointments. Any enquiry by the State Government
whether in exercise of its power under Section 6 or in
c exercise of its executive power under Article 154 would
only duplicate the exercise which was already pending
before the High Court in the form of several writ petitions
in which the aggrieved candidates had raised issues
relating to the validity of the selection process on several
0 grounds including those which the State Government
purported to be looking into on the basis of the complaints
received by it. Therefore, there is no need fo1 the State
Government to undertake a parallel exercise especially
when the examination by the High Court of all matters
E concerning the validity of selection would give an
opportunity not only to the State Government but also to
the aggrieved candidates who have been selected to
present their respective version before it. If the High Court
on the basis of whatever material is placed before it by the
parties comes to the conclusion that there was nothing
F wrong with the selection process, any enquiry made by
the State would be wholly unnecessary. On the contrary,
if the High Court comes to the conclusion that the
selection was vitiated by any illegality or irregularity, the
State Government could exercise its power and institute
G an enquiry for the removal of any member who may have
committed any misconduct by being a party to any such
illegality or irregularity. In the circumstances, no decision
is given on the question whether the institution of enquiry
by the State Government was justified, and if so, whether
H
•
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND
531
ORS.
the source of power invoked by the Government was
A
indeed available to it. In the writ petitions filed by the
aggrieved candidates before the High Court, all aspects
of the matter shall be open to examination in which
everyone connected with the selection process would
have an opportunity to place his/her point of view. The
B
selected candidates may not have been impleaded as
parties to the pending writ petitions although they were
necessary parties having regard to the fact that any order
that the High Court may pass regarding the validity of the
selection may affect them adversely. The selected c
candidates who were appointed on the ba~is of the
selection process and who had filed undertakings before
this Court shall, therefore, be impleaded as parties to the
pending writ petitions to avoid any technical infirmity in
the proceedings and any consequent delay in the disposal
D
of the matter. [Paras 22, 23, 24] [550-A-F; 551-A-H; 552-AG]
2.1. Uttar Pradesh Higher Education Services
Commission Act, 1980 was introduced to make the
selection of teachers in Degree and Post-graduate
E
Colleges fair, objective and transparent. The statement of
objects and reasons for the legislation has referred to
favoritism in the selection of candidates for such colleges
and elimination of such infirmities from the selection
process as one of the objectives underlying the
F
enactment. Section 12 of the Act stipulates the process for
appointment of teachers and inter alia provides that
appointment of a teacher of any college shall be made by
the Management only in accordance with the provisions
of the Act and that any appointment made in contravention
G
thereof shall be void. A careful reading of the provisions
of the Act, the Rules and the Regulations do not support
the theory that the same by a fiction of law create a cadre
of principals either for the purpose of applying reservation
or otherwise. The object underlying the legislation was
H
532
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A limited to ensuring a combined process of selection that
would save time and expense involved in such selections
if the same are made individually for each college. It is also
intended tor remove the element of arbitrariness and other
malpractices that were noticed in the making of such
B selections and appointments by the institutions if left to
themselves. The setting up of the Statutory Commission,
appointment of persons qualified for the same, stipulating
the term!> and conditions of service of those appointed and
the power to r<>move the members for misconduct and
c laying down the procedure for appointment of teachers are
all meant to ensure that the process of selection is free
from mal-practices that were generally associated with
such process when handled by the institutions. There is
nothing in th~ Act, the Rules and Regulations, to even
0 remotely, suggest that the legislature intended to create a
cadre of principals even where none existed earlier either
for purposes of reservation or otherwise. The fact that the
management was required to communicate the available
vacancies to the Director of Higher Education or that an
appointment order must be issued, once the selection
E process is completed and a candidate is recommended for
appointment also does not have the effect of creating a
cadre of principals. All that the provisions of the Act intend
to achieve is to ensure that the vacancies are referred to
the Statutory Commission to enable it to conduct the
F process of selection and once the process is completed
and recommendations made, the management do not
refuse appointment to the candidate considered best for
the post. [Paras 25, 31, 32] [552-H; 553-A; 535-A-G]
G
2.2. The power vested in the Director to hold an
enquiry and to issue directions for payment of salary, in
case the management does not appoint, is also meant to
be a step-in-aid of the process of selection and
appointment giving primacy to the opinion of the
H
•
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND 533
ORS.
Commission regarding the merit and suitability of the
A
candidate for such appointment and entitling the candidate
to claim salary if the appointment is unjustifiably denied
to him. The provisions of the Act and the Regulations do
not have anything to do with creation of a cadre of
Principals nor can the commonality of the selection
B
process be confused with the caderisation of the post of
Principals. The fact that the State Government offers
financial aid to the affiliated colleges in terms of payment
of salary of those serving such institutions does not have
any relevance to the question whether the posts of c
Principals in different colleges under different
managements constitute a cadre. Merely because the
Government supports the institutions which are in all other
respects autonomous in their functioning, and are
managed by individual managements cannot by any 0
·stretch of reasoning be taken as a circumstance
constituting the posts in such colleges into a single cadre.
So also the fact that the terms and conditions of service
of such teachers serving in different colleges including
Principals are similar on account of such colleges being
E
affiliated to the same university and being governed by the
same set of Statutes, Rules and Regulations also does not
have anything to do with the creation or the existence of
a single cadre comprising such posts. There is no
gainsaying that such common features do not in any way
F
impinge upon the autonomous character of such
institutions nor does payment of salaries and the similarity
of conditions of service of the employees provide a test
for holding that although serving in different institutions
totally independent of each other the Principals appointed
in such institution form a common cadre. [Paras 33, 34]
G
[556-C-H; 557-A-C]
2.3. In terms of Section 14 of the Act, managements
are required to issue an appointment letter to the person
whose name has been intimated to it but any such
obligation flowing from Section 14 does not make the State
H
534
SUPREME COURT REPORTS
·-.
[2011] 4 S.C.R.
A
Government the employer of the person appointed. It is
evident from a plain reading of Section 14 that the
appointment letter has to be issued only by the
management. There is no provision empowering the
Director to do so. This implies that the selected candidate
B
is taken into the employment of the institution only when
the management of the institution issues in his favour a
letter of appointment. It is manifest that the appointing
authority even under the scheme of the Act remains the
management of the institutions. The provisions of the Act
c simply make sure that the management makes an
appointment only of the persons selected for the post and
no more. The authorities under the Act do not substitute
themselves as the employer of the person appointed. [Para
35) [557-E-H; 558-A]
D
2.4. The post of Principals in different aided/affiliated
institutions is not transferable or interchangeable.
Interchangeability of the post and transferability of
incumbents to another post in the same cadre are essential
attributes of a cadre, which is in the instant case absent.
E There is no power vested in the State Government or any
other authority for that matter to transfer the Principal from
one institution to another institution as it may do for
instance in the case of Government run institutions where
Principal from one government college may be transferred
F
to another government college in the same cadre. Sub-rule
(1) of Rule 4 does not talk about the power of transfer
vested in any authority. It talks about entitlement of a
permanent teacher to be transferred after 10 years of
service only once in the whole service period. Sub-rule (2)
G provides that the transferred teacher shall become an
employee of the college to which he has been transferred.
More importantly sub-rule (4) makes the transferred
teacher go to the bottom of the cadre to which he may be
transferred. That provision may not make much sense
H when it comes to transfer of a Principal from one college
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
535
ORS.
to another but it certainly shows that even when there are
A
plurality of posts in the cadre lower than the principal the
person transferred from another institution would figure
at the bottom of the said cadre. This again is a
circumstance which negates the theory of Principals
being a part of the same cadre. The attribute of B
interchangeability and transferability is missing in the case
of Principals - in much the same measure as in the case
of teachers, in the lower cadre. Therefore, there is no cadre
of Principals serving in different aided and affiliated
institutions and that the Principal's post is a solitary post c
in an institution. Reservation of such a post is clearly
impermissible not only because the Uttar Pradesh Public
Services (Reservation for Scheduled Castes, Scheduled
Tribes and other Backward Classes) Act, 1994 provides for
reservation based on the 'cadre strength' in aided
0
institutions but also because such strength being limited
to only one post in the cadre is legally not amenable to
reservations. [Paras 36- 39) [558-C-D; 559-F-H; 560-A-G]
2.5. It is true that Section 10 of the 1982 Act which
stipulates the procedure for selection of candidates for
E
direct recruitment requires determination of the vacancies
to be reserved for candidates belonging to SC, ST and
Backward Classes and reference of such vacancies to be
made to the Commission established under the said Act
but excluding the post of Principal/Head of the institution
F
from the said determination but it is equally true that
Section 12of1982 Act does not require any exercise to be
undertaken by the Institutions for determining the number
of vacancies to be reserved for candidates belonging to
reserved categories. There is consequently no provision G
by which the post of Principal/Head of the institution is
excluded from any such process. The two provisions in
. that sense are not comparable. In one case the number of
vacancies to be reserved is required to be determined
H
536
SUPREME COURT REFORTS
[2011] 4 S.C.R.
A while in the other no such requirement has been
stipulated. Exclusion of the Principal's post from such
determination under the 1982 Act cannot, therefore, be
overemphasized in the absence of a provision requiring
a determination of the reserved vacancies under Section
B 12 of the 1980 Act. If the posts of Principals in the
secondary school which are much larger in number than
the Degree and Post-Graduate colleges are not amenable
to reservation and have been specifically excluded from
that process, there is no earthly reason why posts of
C Principals in Degree and Post-Graduate colleges which arc
relatively fewer in number available in colleges imparting
higher education ought to be subjected to such
reservation. What is true in the case of secondary schools
would, therefore, be true in the case of Degree and Posto Graduate colleges also. Any interpretation that may render
the legal position anomalous or absurd shall, therefore,
have to be eschewed. [Paras 42, 43] [562-E-H; 563-A-E]
Post Graduate Institute of Medical Education & Research,
Chandigarh v. Faculty Association & Ors. (1998) 4 SCC 1 -
E Followed
F
Balbir Kaur and Anr. v. Uttar Pradesh Secondary
Education Services Selection Board, Allahabad and Ors.
(2008) 12 sec 1 - relied on.
Onkar Dutt Sharma and Ors. v. State of UP. and Ors.
(2001) 1 SAC505; Dr. Chakradhar Pa swan v. State of Bihar &
Ors. (1988) 2 SCC214; Indra Sawhney and Ors. v. Union of
India and Ors. 1992Supp.(3) SCC 217; Arati Ray Choudhury
v. Union of India 1974(1) SCC 87; M.R. Balaji v. State of
G Mysore AIR 1963 SC 649; T.
Devadasan v. Union of India
AIR 1964 SC 179; Bhide Girls Education Society v. Education
Officer, Zita Parishad Nagpur and Ors.1993 Supp (3) SCC
527; Post-graduate Institute of Medical Education & Research,
Chandigarh v. Faculty Association and Ors.(1998) 4 SCC 1;
H
•
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND
537
ORS.
Union of India and Anr. v. Madhav s/o GajananChaubal and A
Anr.
(1997) 2 SCC 332; Union of India v. Brij Lal Thakur
(1997) 4 SCC 278; State of Bihar v. Bageshwari Prasad 1995
Supp (1) SCC 432 - referred to.
2.6. In the result the following directions were passed:
8
(1) The impugned orders passed by the High Court to
the extent the same hold that the posts of Principals
in affiliated/aided colleges are not amenable to
reservation are affirmed.
c
(2) Order dated 12th June, 2007 issued by the
Government appointing the Divisional Commissioner,
Allahabad as an Enquiry Officer to hold an enquiry
into the validity of selection process and the report
submitted by the said Enquiry Officer shall stand o
quashed and the order passed by the High Court to
that effect affirmed.
(3) The question whether the Government was
competent to direct an enquiry into the validity of the
E
selection process under Section 6 of the Uttar
Pradesh Higher Education Services Commission Act,
1980 or under Article 154 of the Constitution is left
open in view of the pendency of the writ petitions
challenging the validity of the selection process
before the High Court.
F
(4) The High Court shall in the writ petitions pending
before it be free to examine all issues regarding the
selection process in question including the validity of
the procedure followed in making the same. G
Depending upon whether the High Court finds the
selection process to be valid or otherwise the
Government shall have the liberty to institute an
enquiry against the members of the State Services
Selection Commission if such enquiry is otherwise
H
538
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
•
(2011] 4 S.C.R.
permitted under law. In case, however, the High Court
upholds the selection process and dismisses the writ
petitions there shall be no room left for the State
Government to embark upon any further enquiry into
the matter on the administrative side. The aggrieved
party shall be free to challenge the view taken by the
High Court in appropriate proceedings in accordance
with law.
(5) The selected candidates who have filed
undertakings in this Court and have been appointed
to the posts of Principals pursuant to the orders of
this Court shall stand impleaded as parties to each of
the writ petitions pending in the High Court and
challenging the selection process. The selected
candidates shall based on this direction appear
before the High Court on 2.5.2011 without any further
notice in each one of the petitions and file their
counter-affidavits. Failure on the part of the
candidates to do the needful shall be suitably dealt
with by the High Court who shall be free to proceed
ex-parte, against those who fail to comply with this
direction.
(6) In order to expedite the hearing of the case the Chief
Justice of the High Court of Allahabad is requested to
place the writ petitions before a Division Bench of the
High Court for an early hearing and disposal as far as
possible before the 1st December, 2011.
(7) Pending disposal of the writ petitions by the High
Court the selected candidates shall be entitled to
receive their pay and allowances including
increments etc. otherwise admissible to the post of
Principal as if the appointments were made on a valid
and substantive basis. Such benefits flowing from the
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND
539
ORS.
same shall, however, be subject to the outcome of the
A
writ petitions before the High Court and the
undertakings furnished by the appointed candidates
to this Court which undertaking shall be deemed to
have been continued till such time the writ petitions
are finally disposed of. [Para 53) [567-F-H; 568-A-H;
B
569-A-E]
Case Law Reference:
(2008) 12 sec 1
relied on
Paras 18, 40, 41,
44
c
· (2001) 1 SAC 505
referred to
Para 14
(1988) 2 sec 214
referred to
Paras 40, 46
(1998) 4 sec 1
relied on
Para 40
D
-
-· -.-
..
.
1992 Supp,(3) SCC-217 referred to
Para 45 ·
1974 (1) sec 87
referred to
Para 46
AIR 1963 SC 649
referred to
Para 46
E
AIR 1964 SC 179
referred to · Para 46
1993 Supp (3) sec 527 referred to
Para 46
(1998) 4 sec 1
Followed
Para 47
(1997) 2 sec 332
referred to
Para 47
F
(1997) 4 sec 218
referred to
Para 47
1995 Supp (1) sec 432 referred to
Para 47
CIVILAPPELLATEJURISDICITION: Civil Appeal No. 2351
G
of 2011.
From the Judgment & Order dated 7.8.2008 of the High
Court of Judicature at Allahabad in Civil Writ Petition No. 29524
of 2007.
H
A
B
540
SUPREME COURT REPORTS
[2011) 4 S.C.R.
VlllTH
C.A. Nos. 2352, 2353-2355, 2356-2358, 2359-2360 & 2361 of
2011, T.P. 3 of 2009, Contempt Petition No. 32 of 2009, T.P.
(C) No. 1136 of 2009.
Ravindra Srivastava, Dinesh Dwivedi, P.S. Patwalia, Pallav
Shishodia, V. Shekhar, P.S. Narasimhan, T.N. Singh, Rajeev
Dubey, Kunal Verma, Kamlendra Mishra, Rana Mukherjee,
Deependra Narain Singh, Kirti Yadav, Sunaina Kumar, Ankita
Mishra (for Legal Options), Sanjay Visen, J.K. Mishra, G.P.
C Singh, Vidit Khanna, Anirudha P. Mayee, Amit Anand Tiwari,
Rakesh Mishra, Rajeev Kumar Bansal, Amanpreet Singh Raji,
Tushar Bakshi, Manoj K. Mishra, Raj Singh Rana, K.L. Janjani,
Pankaj Singh, Avinash Jain, Pooja Dhar, Prashant Kumar (for
AP & J Chambers), Niranjana Singh, Nalin Tripati, Deepak
D Agnihotri (for Rajeev Agnihotri), for Rameshwar Prasad Goyal,
Ranbir Singh Yadav, Praneet Ranjan, Pranay Ranjan, Jeevan
Prakash, Kamlendra Mishra, Praveen Jain, R.D. Upadhyay,
Aftab Ali Khan, S.S. Nehra, H.K. Puri, Nikhil Nayyar, Abhishek
Atrey, Shiam Narain Singh, Praveen Swarup, Rakesh K.
E Sharma, Sangita Chauhan, Aniruddha P. Mayee, Praneet
Rajan, Sulalit K. Sisodia, Pranay Ranjan, V.J. Francis, Anupam
Mishra, Nagendra Singh, Vishwa Pal Singh, Nalin Tripathi,
Deepak Agnihotri, Anil Kumar Pathak for the appearing parties.
F
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. These appeals arise out of a judgment and order dated
7th August 2008 passed by the High Court of Allahabad whereby
G the High Court has allowed the writ petitions filed by the selected
candidates, quashed the orders under challenge in the same and
by a mandamus directed the Director, Higher Education to give
effect to the recommendatioQ.s~i111ade by the U.P. Higher
Education Service Commission for SP.POintment to the post of
H Principals in aided/affiliated .. De~e and Post-Graduate
•
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND 541
ORS. [T.S. THAKUR, J.]
colleges. The High Court has further directed issue of placement
A
orders in favour of the selected candidates without any delay.
The facts giving rise to the filing of the petitions may be
summarized as under:
3. The Government of U.P. has established what is known
B
as 'Uttar Pradesh Higher Education Services Commission' in
terms of Section 3 of the U.P. Higher Education Services Act,
1980. The Commission is, among other functions assigned to it
unaer the Act, empowered to prepare guidelines touching the
method of recruitment of teachers in colleges and conduct
examinations, hold interviews and make selection of candidates
C
for being appointed as teachers and make recommendations
to the managements concerned regarding the appointment of
selected candidates. The selection process undertaken by the
Commission is, however, confined only to colleges to which the
privileges of affiliation or recognition have been granted by the
D
University including colleges that are maintained by local
authorities. Colleges that are maintained by the State
Government or colleges imparting medical education are
outside the purview of the Act aforementioned. We shall
presently refer to the provisions of the Act in greater detail but
E
we may at this stage only say that in terms of Section 12 of the
Act, the Managements of the colleges are required to intimate
the existing vacancies and the vacancies likely to be caused
during the course of the ensuing academic year to the Director
of Education who is then required to notify to the Commission a
subject wise consolidated list of vacancies intimated to him from
all colleges to enable the Commission to initiate and undertake
the selection process.
F
4. Based on the information notified to the Commission in
G
terms of the above procedure, a consolidated advertisement
bearing multiple numbers (33 to 36) was issued by it on 29th May
2003 inviting applications for the vacancies mentioned in the
said advertisement. A large number of writ petitions challenging
the said advertisement came to be filed before the High Court
H
542
SUPREME COURT REPORTS
[2011} 4 S.C.R.
A of Allahabad primarily on the ground that the post of Principals
notified by the Commission available as they were in different
colleges affiliated to the University being single posts in the cadre
were not amenable to reservation. These writ petitions were
entertained by the High Court and by interim orders dated 1st
B September, 15th September and 22nd September 2003,
directions issued to the Commission to the effect that the post
of Principals shall be treated as non-reserved posts.
5. In compliance with the above directions, the Commission
issued a fresh advertisement dated 24th February 2005 being
C advertisement No.39 inviting applications for 140 posts of
Principals, out of which 87 posts were available in Post-Graduate
Colleges while 53 others were in Degree Colleges. The
advertisement did not make any mention about any reservation
implying thereby that the posts were offered in the general/open
D merit category. The entire selection process was to be subject
to the ultimate outcome of the writ petitions pending before the
Allahabad High Court. It is common ground that interim orders
dated 1st September 2003, 15th September 2003 and 22nd
September 2003 were challenged before this Court by way of
E SLPs, but the said petitions were dismissed on the ground of
delay and !aches by this Court's order dated 3rd November,
2008.
6. The Commission took nearly two years to complete the
F selection process which culminated in the publication of a select
list in terms of a notification dated 15th May 2007. With the
publication of the select list, the batch of writ petitions pending
before the High Court in which the interim orders mentioned
above had been issued was dismissed as infructuous. The High
G Court while doing so noted the submission made on behalf of
the Commission that there was no cadre of Principals in the PostG rad uate colleges and the posts of Principals were not
interchangeable or transferable.
7. In the case of the appellant-State of Uttar Pradesh that
H before appointment orders could be issued to those included in
•
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND
543
ORS. [T.S. THAKUR, J.]
the select list, a number of complaints were received by it against
A
the selection held by the Commission alleging large scale
irregularities and malpractices of serious nature in the selection
procedure and demanding an inquiry into the same. The State
Government accordingly directed the Divisional Commissioner,
Allahabad to hold an inquiry into the allegations and to submit a
B
report within 15 days. The Divisional Commissioner in turn asked
for certain information from the Service Commission in
connection with the inquiry with a copy to the Director, Higher
Education requesting him to show restraint in issuing the
placement orders in terms of the recommendations received c
from the Service Commission.
8. Aggrieved by the said communication, the selected
candidates filed several writ petitions before the High Court of
Allahabad challenging the notification issued by the Government
appointing the Divisional Commissioner as an inquiry officer and
D
the letter written by him to the Director of Education asking him
to withhold the issue of placement orders in favour of the selected
candidates. While the said writ petitions were still pending
disposal the Divisional Commissioner submitted a preliminary
inquiry report dated 6th July 2007 in which he recorded a prima
E
facie conclusion that a series of irregularities and malpractices
had been committed by the Service Commission in the process
of selection. The High Court in the meantime passed an interim
order dated 13th July 2007 staying the operation of the
notification appointing the Divisional Commissioner as an
F
inquiry officer with a direction to the respondent to issue
appointment letters to the selected candidates within three
weeks.
9. Aggrieved by the interim order referred to above, the
G
State filed a special leave petition in this Court in which this Court
by an order dated 21st August 2007 stayed the interim direction
in so far as the same directed the Director, Higher Education to
issue appointment letters in favour of the selected candidates.
The special leave petition was finally disposed by this Court on
H
544
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A 12th February 2008 with a request to the High Court to dispose
of the writ petitions within four months. The interim order issued
by this Court on 21st August 2007 was continued in the
meantime.
8
10. Before the High Court, the Government filed a counter
affidavit to the writ petition stating that there were serious
infirmities in the process and an indepth inquiry into the matter
was necessary. The High Court eventually allowed the writ petition
quashing orders dated 12th June 2007 and 16th June 2007
impugned therein and issued a mandamus to the Director,
C Higher Education Service Commission to make placements in
favour of the selected candidates. The present appeals assail
the correctness of the said orders.
11. We may at this stage point out that by an interim order
D dated 20th November, 2008 passed in these cases this Court
directed the appellant-State to appoint the selected candidatesrespondents in these appeals as Principals of various aided nonGovernment degree colleges and post-graduate colleges within
a period of one month subject to the decision of these appeals,
E provided the respondents filed undertakings in this Court to the
effect that in case they lose the battle they will stand reverted to
the posts of Readers and the difference of salary amount drawn
by them as Principals recovered and paid back to the State. That
direction was reiterated by this Court in terms of order dated
F 23rd April, 2009 whereby this Court directed that although 56
candidates had already been appointed out of the select list in
different Degree and Post-Graduate colleges, the direction
issued by this Court should be complied with in toto within a
period of one month from the date of the said order. Hearing of
G the SLPs was also directed to be expedited. It is not in dispute
that the State has pursuant to the above direction appointed the
selected candidates upon their filing undertakings before this
Court with the result that all the selected candidates are duly
appointed subject to the outcome of the present appeals and
H subject to the conditions stipulated in the interim orders
•
•
STATE OF U.P. AND ORS. v. BHARAT SINGH AND
545
ORS. [T.S. THAKUR, J.]
mentioned above.
12. Appearing for the appellant-State Mr. Srivastava made
A
B
a two-fold submission in support of the appeals. Firstly, he
contended that the High Court had fallen in error in quashing order
dated 12th June, 2007 appointing the Divisional Commissioner,
Allahabad for holding a preliminary enquiry into the allegations
of malpractices in the selection process based on the complaints
received by the Government. He urged that Section 6( 1) of the
Uttar Pradesh Higher Education Services Commission Act,
1980 empowered the State Government to remove from office
any member of the Service Commission, in situations where the
C
State Government considers them unfit to continue in office by
reason of proved misconduct. The source of power so available
was according to the learned counsel sufficient for the
Government to hold an enquiry into the allegations regarding the
legality and procedural regularity of the selection process for it
D
was only on the basis of any such enquiry that the Government
could determine whether any misconduct had been committed ·
by the members of the Commission.