# VEERENDRA KR. GAUTAM AND OTHERS v. KARUNA NIDHAN UPADHYAY AND OTHERS

- **Citation:** [2016] 7 S.C.R. 223
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Case number:** Civil Appeal No. 3361 of2015
- **Bench:** FA~(l(IR MOHAMED IBRAHIM KALIFULLA, S. A. Bobde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/veerendra-kr-gautam-and-others-v-karuna-nidhan-upadhyay-and-others-31600
- **Pages:** 40

## Headnote

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
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
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 cutoff mark proceeded to process the applications - But subsequently
it altered the index norms and ultimately it decided to call all the
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
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
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
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writ petition without any reservation did not cause any prejudice in
as much as at the time when the earlier writ petition was filed, the
select list was not announced and, therefore, when at the stage prior
to the interview, those writ petitions were filed, there was nothing
wrong in the writ petitioners moving the High Court, subsequent to
the declaration of the results by raising a challenge to the select
list.
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
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
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
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
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
his grievance along with other

## Text

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[2016] 7 S.C.R. 223
VEERENDRA KR. GAUTAM AND OTHERS
v.
KARUNA NIDHAN UPADHYAY AND OTHERS
(Civil Appeal No. 3361 of2015)
JULYIS,2016
[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
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
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 cutoff mark proceeded to process the applications - But subsequently
it altered the index norms and ultimately it decided to call all the
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
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
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
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writ petition without any reservation did not cause any prejudice in
as much as at the time when the earlier writ petition was filed, the
select list was not announced and, therefore, when at the stage prior
to the interview, those writ petitions were filed, there was nothing
wrong in the writ petitioners moving the High Court, subsequent to
the declaration of the results by raising a challenge to the select
list.
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
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
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
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
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
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
VEERENDRA KR. GAUTAM v. KARUNA NIDHAN
UPADHYAY
and a fresh challenge made to the ultimate selection on various
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;
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.
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
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
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
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
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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
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academic record, teaching and administrative experience to be
carried out and that as far as possible, the ratio between 3 to 8
times the vacancies can be determined by the Commission, which
it finds appropriate. A reading of the Regulation 6(1) on the whole
thus shows that the Commission has been invested with
substantive power to call for interview such number of candidates
as it may consider proper. Therefore, it cannot be held that it
should always restrict it to the minimum 3 to 8 times the
vacancies, as the Commission may consider proper. In the case
on hand, initially, the Commission decided to limit the number of
candidates by fixing the norms. The Commission by fixing the
cut-off mark as 34.9 for female candidates 35.1 for male
candidates proceeded to process the applications. But it came
to light that subsequently the index norms were altered and
ultimately it decided to call all the candidates. Such decisions
were taken on different dates. Such variation in the norms was
resorted to by the Commission and the ultimate selection came
to be made and it was alleged that such variation was adopted by
the Commission with a view to favour certain candidates who
otherwise did not come within the zone of consideration for
participation in the interview. Such an allegation is definitely a
very serious allegation and therefore it cannot be held that such
allegations are to be simply brushed aside by accepting the stand
of the Commission that ultimately the ratio was far below 1 :8 or
within the said range. 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
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
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
approach made by the Commission cannot be found fault with. In
VEERENDRA KR. GAUTAM v. KARUNA NIDHAN
UPADHYAY
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. 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
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
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
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
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
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
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
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candidate will be of no consequence when the whole process of
selection was affected by serious illegalities. [Paras 45, 54] [256F-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;
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
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
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
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)
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.
Case Law Reference
2011 (4) SCR525
relied on
Para9
1981 (3) SCR474
referred to
Para 11
1981 (2) SCR 79
referred to
Para 11
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,
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, San jay 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
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,
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[2016) 7 S.C.R.
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.
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.
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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
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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
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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
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Higher Education Services Commission, Director of Education, who also
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issued a direction not to give any posting in pursuance of the select list
dated 15.05.2007.
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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
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
degree colleges were earlier made by the respective colleges in
accordance with the provisions of the U.P. State Universities Act, 1973
(hereinafter called the' 1973 Act'). As there were numerous complaints
regarding the selection of candidates for both the post of Teachers as
well as the Principals in the post graduate colleges as well as the degree
colleges, the State Government enacted U.P. Higher Education Services
Commission Act, 1980 (hereinafter called the 1980 Act) to establish a
Service Commission for the selection of Teachers which includes the
post of Principals for appointment to the colleges affiliated to or
recognized by the University under the 1973 Act. The Commission
consisted of a Chairman and not less than two and not more than six
members to be appointed by the State Government. The management
of the colleges were expected to intimate the existing as well as future
vacancies in the course of the ensuing academic year to the Director of
Education and the Director in turn was required to notify the vacancies
to the Commission. The Commission thereafter undertakes the process
of selection in accordance with the Act, Rules and Regulations. At this
juncture, it is necessary to note the relevant provisions of the 1980 Act
as well as the relevant provisions in the Regulations and the Rules
formulated under the provision of the 1980 Act.
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.
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. SubSection (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
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
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Commission have been set out in Section 1 I. 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
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.
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
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·
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
account of excess number of applications or for any other
reasons, the Commission considers it desirable to limit the
number of candidates to be called for interview, it may-
(i) in the case of the post of a teacher, not being the post of
principal, either hold preliminary screening on the basis of
academic record or hold a competitive examination, so
however that no competitive examination shall be held before
the recruitment year 1984.
(ii) in the case of the post of the Principal, hold preliminary
screening on the basis of academic record, teaching the
VEERENDRAKR.GAUTAM v. KARUNAN1DHANUPADHYAY
233
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
administrative experience ;
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Provided further that the number of candidates to be called
for interview for any category of post shall, as far as possible,
be between three to eight times the vacancies as the
Commission may consider proper.
(2) The Commission shall interview the candidates in
accordance with the criteria, minimum standards and
guidelines set out by it. The Commission may, if it considers
necessary, hold practical test also as part of interview.
(3) No candidate shall be recommended unless at least one
expert concurs with the selection.
(4) The Commission shall prepare two separate lists of selected
candidates, one of the women candidates only and the other
a 'general list' of all the candidates (including women
candidates included in the first list). The names of women
candidates who specifically opt not to be posted in womens
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. "
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
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:
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"]. Whether the writ petition No. 34198 of 2008, Dr. Karuna
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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?
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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
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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
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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
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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
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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
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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
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namely: dependent of freedom fighter and physically
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY
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[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
handicapped is valid who otherwise could not have been
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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?
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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?
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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,
30.06.2008 and 02.07.2008. As far as the challenge made based on invalid
appointment of the Members of the Commission, who were arrayed as
respondent Nos.4 to 9 in the writ petition, the Division Bench found that
those respondents had since subsequently ceased to be members of the
Commission, held that there was no scope to examine the validity of
their appointment as members of the Commission, but applying the de
facto doctrine, proceeded to hold that strict analysis of the selection
made by those members was necessitated.
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
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,
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.
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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
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
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
Commissioner, Allahabad as an Enquiry Officer to hold an enquiry into the
validity of selection process and the report submitted by the said Enquiry
Officer, shall stand quashed and the order of the High Court to that effect
was affirmed. However, this Court took note of the pending writ petitions
in the High Court wherein, challenge to the selection was substantially
raised and held that the High Court was free to examine all issues regarding
the selection 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
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
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.
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
We heard the submissions of Mr. S. Gurukrishna Kumar, Mr. Amarendra
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,
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
and not a Rule and, therefore, not to be mandatorily applied for making
the selection, that exceeding a ratio by itself cannot be held to be arbitrary,
that this was not a case where no guidelines were in place and that
under Regulation 6(1 ), the Commission had every power to limit or not
to limit the number of applicants. The learned senior counsel submitted
that the Commission gave ample reasons for the ratio it adopted in making
the selection and that by making reference to some of the selected
candidates alone, the Division Bench ought not to have interfered with
the whole selection. The learned senior counsel ultimately submitted
that the withdrawal of the earlier writ petitions barred the filing of the
present writ petition when such withdrawal was without any reservation,
that High Court having written a specific finding that the action taken by
the members of the Commission 4 to 9 were protected by de facto
doctrine ought 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
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 PostGraduate College, Sahibabad, Distt. Ghaziabad, U.P. v. U.P. Higher
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).
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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,
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
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.
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
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.
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
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
interview result, where grounds were raised even relating to the process
VEERENDRAKR.GAUTAM v. KARUNANIDHANUPADHYAY
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
of selection. According to the learned senior counsel the other group
never raised a challenge to the advertisement and came after the
interview. According to learned senior counsel, principle of estoppel
operate differently in that those who participated in the interview are
estopped from raising a challenge which is covered by the decision of
this Court reported in Madan Lal (supra). As far as those who filed
the writ petition and withdrew the same without liberty, the Sarguja
Transport ,';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
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
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
the cut-off marks as it had possessed necessary powers under Regulation
6. The learned senior counsel submitted that the decision was not with
any ill-motive, in order to hold that the whole selection should be set
aside. On Regulation 6(2) the learned senior counsel submitted that
from a reading it cannot be said that without any guidelines U. P. Higher
Education Services Commission cannot carry on with the interview, that
where there are criteria, it should be followed and that guideline have
been framed as early as on 06. 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).