REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITION
CIVIL APPEAL NO. 2351 OF 2011
(Arising out of SLP (C) No.25966 of 2008)
State of U.P. & Ors. ...Appellants
Versus
Bharat Singh & Ors. ...Respondents
With Civil Appeal Nos. 2352-2361 of 2011
(Arising out of SLP (C) Nos.27077, 27522-27524, 27526-
27528, 27530-27531 of 2008 and No.455 of 2009
With
T.P. (C) Nos.3 and 1136 of 2009
Contempt Petition (C) No.32 of 2009 in SLP (C) No.25966 of
2008
J U D G M E N T
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 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
recommendations made by the U.P. Higher Education
Service Commission for appointment to the post of Principals
in aided/affiliated Degree and Post-Graduate colleges. The
High Court has further directed issue of placement orders in
favour of the selected candidates without any delay. The
2
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
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 under 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 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 University
including colleges that are maintained by local authorities.
Colleges that are maintained by the State Government or
3
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 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.
4. Based on the information notified to the Commission in
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
4
the High Court 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 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 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 merit
5
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 SLPs, but the said petitions were dismissed on the
ground of delay and laches by this Court’s order dated 3rd
November, 2008.
6. The Commission took nearly two years to complete the
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 Court while doing so
noted the submission made on behalf of the Commission
that there was no cadre of Principals in the Post-Graduate
6
colleges and the posts of Principals were not interchangeable
or transferable.
7. In the case of the appellant-State of Uttar Pradesh that
before appointment orders could be issued to those included
in the select list, a number of complaints were received by it
against 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 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 from the
Service Commission.
7
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 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 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
inquiry officer with a direction to the respondent to issue
8
appointment letters to the selected candidates within three
weeks.
9. Aggrieved by the interim order referred to above, the
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 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.
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
9
the writ petition quashing orders dated 12th June 2007 and
16th June 2007 impugned therein and issued a mandamus to
the Director, 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
dated 20th November, 2008 passed in these cases this Court
directed the appellant-State to appoint the selected
candidates-respondents in these appeals as Principals of
various aided non-Government degree colleges and post-
graduate colleges within a period of one month subject to
the decision of these appeals, 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
10
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 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 subject to the
conditions stipulated in the interim orders mentioned above.
12. Appearing for the appellant-State Mr. Srivastava made
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
11
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 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 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. The Government could on the basis of the
outcome of the enquiry act against the member responsible
for such misconduct and irregularity and/or refuse to
approve the end result of the selection process. The
12
preliminary enquiry, therefore, had the sanction of law,
argued the learned counsel and could not be cut short by
the High Court in the manner it has done.
13. Mr. Srivastava further contended that even if Section 6
is given a restricted interpretation its rigors are confined to
the removal of the members of the Commission from office
and do not extend to the holding of an enquiry into the
validity of the selection process, yet the general executive
power vested in the State Government under Article 154 of
the Constitution of India was wide enough to entitle the
Government to institute such an enquiry in cases where
allegations of rampant corruption, malpractice and the like
vitiating the selection process are made. Relying upon the
pronouncements of this Court it was urged that no candidate
had a right to seek an appointment simply because he has
been empanelled for such an appointment. In cases where
the State has serious, reservations about the fairness of the
13
selection process and where allegations casting a cloud on
the legality and propriety of the procedure have been made,
the State could not refuse an enquiry nor could any such
enquiry be struck down and appointments ordered having
regard to the compelling need for maintaining absolute
purity in the selection process leading to such appointments.
14. Secondly, it was argued that the High Court was wrong
in disposing of writ petition Nos. 39369/2003, 39370/2003,
48621/2003, 41191/2003, 52411/2003, 70062/2003,
42992/2003, 41345/2003 and 38714/2003 as infructuous.
The High Court had ignored the fact that the issue of
advertisement No.39 pursuant to the interim direction of the
High Court and the selection process concluded on the basis
thereof was subject to the outcome of the said writ petitions.
Mere issue of a fresh notification in compliance with the
order passed by the High Court or the completion of the
selection process did not render the writ petitions
infructuous, for the question whether the posts of Principals
14
were subject to reservation had to be answered by the High
Court which it had omitted to do. It was further argued that
the High Court had not only ignored the decision of a
coordinate Bench in Onkar Dutt Sharma and Ors. v. State
of U.P. and Ors. (2001) 1 SAC 505, but failed to
satisfactorily address the question whether the post of
Principals constituted a cadre and was, therefore, amenable
to reservation in terms of The Uttar Pradesh Services
(Reservation for Scheduled Castes and Scheduled Tribes and
other Backward Classes) Act, 1994. It was contended that
the provisions of the Uttar Pradesh Higher Education Service
Commission Act, 1980 had the effect of clubbing posts of
Principals in different affiliated colleges and once such
clubbing was statutorily prescribed for purposes of process
of selection and recommendations for appointment, the said
posts could be treated as a part of one single cadre to which
provisions of Reservation Act, 1994 would apply.
15
15. Mr. Dinesh Dwivedi learned, senior counsel appearing
for the management who are interveners in SLP
No.27077/2008 contended that the expression “cadre”
appearing in the Reservation Act, 1994 had to be interpreted
liberally. So interpreted Uttar Pradesh Higher Services
Commission Act had the effect of bringing about a cadre of
Principals in aided and affiliated Degree and Post-Graduate
institutions argued the learned counsel. He further
submitted that several features supported the caderisation
of the posts in such institutions. For instance the salary of
the incumbent Principals in such institutions was paid by the
State Government. Reference in this regard was made by
him to Sections 60-A, 60-B, 60-D and 60-E of the Uttar
Pradesh State Universities Act, 1973. It was argued that the
clubbing of posts for conduct of a common selection process
under 1980 Act (supra) and the fact that the power of
appointment against the said post was effectively with the
Director having regard to the provisions of Sections 12 and
16
13 of the Act was also a significant feature that indicated
that the posts comprised a single cadre of Principals. The
posts of teachers were also interchangeable subject to
certain conditions and restrictions. The fact that the terms
and conditions of service of the employees were the same
under the relevant rules stipulated by the affiliating
universities and the retirement and termination was not in
the hands of the managements also suggested, according to
the learned counsel, that the posts of Principals constituted
a single cadre. Mr. Dwivedi also drew support from the fact
that posts of Principals of secondary schools were excluded
from the rigors of reservations while the Degree and Post-
Graduate institutes did not enjoy any such immunity. The
difference between the two provisions was, according to Mr.
Dwivedi, significant and showed that wherever reservation
was not intended to apply to the post of Principals as in the
case of secondary schools, a specific provision to that effect
was made in the statute.
17
16. On behalf of the respondents Mr. P.S. Patwalia, senior
counsel, argued that the enquiry instituted by the
Government into the validity of the selection process was
motivated by political considerations. He urged that selection
process having been completed by the Commission during
the previous regime the same was not found palatable by
the successor Government in the State of Uttar Pradesh who
contrived to subvert the entire exercise on one pretext or
other.
17. Mr. Patwalia further submitted that there was no real
basis for the Government to institute an enquiry into the
validity of the selection especially when the allegations were
totally vague, unfounded and imaginary containing an
appeal to the Government to intervene on caste and
community considerations rather than any concrete evidence
regarding the commission of any malpractices. He drew our
18
attention to the order passed by the High Court to show that
the State Government had failed to come out with a specific
statement that it intended to conduct any further enquiry or
proceedings in the matter. The High Court was, therefore,
justified in quashing the preliminary report submitted by the
Divisional Commissioner especially because the Government
did not, according to the learned counsel, have the power
under Section 6 of the Uttar Pradesh Higher Education
Services Act to nullify a validly concluded selection process.
He refuted the contention that the Government could
exercise its general executive power under Article 154 of the
Constitution and submitted that no such argument was ever
urged before the High Court.
18. Mr. Patwalia further contended that the provisions of
the Uttar Pradesh Higher Education Services Commission Act
did not have the effect of bringing about a cadre of
Principals and termed the submissions made to that effect to
19
be wholly fallacious. He submitted that the minimum
requirement for holding that a cadre exists in any given
service is that those who constitute a part of a given cadre
must have a common employer. This requirement was not
satisfied in the instant case as the employer of each one of
the Principals was the management of the college
concerned. The posts of the Principals were not
interchangeable or transferrable under the Rules except with
the mutual consent of the incumbents and the management
under whom they were serving. The question whether a
cadre existed in such circumstances was, according to Mr.
Patwalia, concluded by the decision of this Court in Balbir
Kaur and Anr. v. Uttar Pradesh Secondary Education
Services Selection Board, Allahabad and Ors. (2008) 12
SCC 1.
19. Mr. Pallav Shishodia and Mr. V. Shekhar, senior
counsels who appeared for some of the respondents also
20
adopted the arguments advanced by Mr. Patwalia that there
was nothing in the provisions of the Uttar Pradesh Higher
Education Services Commission Act or the Reservation Act of
1994 for that matter to suggest that the Legislature ever
intended to create a cadre of Principals serving under
different managements. The only purpose underlying the
two legislations, according to the learned counsel, was to
provide a unified mechanism for selection of suitable
candidates for appointment as Principals to ensure that
appointments are made on a fair and transparent basis. The
State considered that to be necessary not only in the
interests of getting the best candidates for the institutions
that were affiliated to the universities and were serving a
laudable public purpose but also because the salary payable
to those appointed against such vacancies was reimbursed
to the institutions by the State.
20. Two questions fall for our determination, these are :
21
(i) Whether the High Court was justified in quashing the
appointment of the enquiry officer appointed to look into
the allegations of malpractice allegedly committed in the
course of selection process and
(ii) Whether the posts of Principals in different
affiliated/aided Degree and Post-Graduate institutions
constitute a cadre and are, therefore, subject to
reservation as prescribed under the provisions of the
Reservation Act of 1994.
21. We propose to take up the questions ad seriatim.
Re: Question No.(i)
22. Selection of Principals in affiliated/aided Degree and
Post-graduate colleges is regulated by the Uttar Pradesh
Higher Education Services Commission Act, the Rules and
22
Regulations framed thereunder. The selection process was
initiated and concluded by the Commission treating the post
to be open category post pursuant to the interim directions
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. The State Government,
however, appears to have received some complaints on the
basis of which it initiated an enquiry culminating in the
submission of a preliminary report finding fault with the
procedure adopted by the Commission in the conduct of the
selection process. According to the appellant-State of U.P.
the allegations made in the complaint were serious in nature
and deserved to be looked into. It was urged that the State
had all the intentions of instituting a further enquiry into the
matter on the basis of the preliminary report submitted to it.
The High Court did not think so. From a reading of the order
23
passed in W.P. No.29524 of 2007, it appears that the High
Court had given an opportunity to the learned counsel for
the State to take instructions whether the Government
intended to institute any further enquiry in the matter.
Despite the opportunity learned counsel for the State had
reported no instructions in the matter. This is evident from
the following passage appearing in the order passed by the
High Court:
“On all these dates, we requested the standing
counsel to give the stand of the State Government.
Learned standing counsel informs that he had sent
the information to the State Government but no
instructions have been received by him.”
23. The 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 enquiry officer as also the instructions issued
by him against the making of the appointments. We consider
it unnecessary to examine whether the complaints allegedly
received by the State Government made out a prima facie
24
case for an enquiry into the matter or whether the enquiry
instituted by the Government was vitiated by any political or
other considerations. We would also not like to go into the
question whether or not the power vested in the State under
Section 6 of the Uttar Pradesh Higher Education Services
Commission Act (supra) which the State Government
purportedly invoked could be invoked by it for purposes of
undoing the selection process and if could not be, whether
the general executive power vested in the State under
Article 154 of the Constitution could be exercised by it to
institute an enquiry in the facts and circumstances of the
case. We say so not because the questions were not
germane to the controversy before us but because any
enquiry by the State Government whether in exercise of its
power under Section 6 or in exercise of its executive power
under Article 154 would only duplicate the exercise which is
already pending before the High Court in the form of several
writ petitions in which the aggrieved candidates have raised
25
issues relating to the validity of the selection process on
several grounds including those which the State Government
purports to be looking into on the basis of the complaints
received by it. We had in that view asked Mr. Srivastava
whether there was any need for the State Government to
undertake a parallel exercise especially when the
examination by the High Court of all matters 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 came to the
conclusion that there was nothing wrong with the selection
process, any enquiry made by the State would be wholly
unnecessary. On the contrary, if the High Court came to the
conclusion that the selection was vitiated by any illegality or
irregularity, the State Government could exercise its power
and institute an enquiry for the removal of any member who
26
may have committed any misconduct by being a party to
any such illegality or irregularity. To the credit of Mr.
Srivastava, we must record that he was agreeable to the
course of action suggested by us with the only exception
that the vigilance case that stood registered by the State
Vigilance Department is allowed to go on to look into the
criminal angle if any involved in the so-called illegal selection
conducted by the Commission. In the circumstances,
therefore, it is unnecessary for us to authoritatively
determine the question whether the institution of enquiry by
the State Government was justified and, if so, whether the
source of power invoked by the Government was indeed
available to it. We are of the view that 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.
27
24. We are told that the selected candidates may not have
been impleaded as parties to the pending writ petitions
although they are 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 candidates who have been appointed on the basis
of the selection process and who have 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 of
the matter. A specific direction to this effect is being issued
by us in the operative part of this order. Question No.(i) is
answered accordingly.
Regarding Question No. (ii)
25. Uttar Pradesh Higher Education Services Commission
Act, 1980 was introduced to make the selection of teachers
28
in Degree and Post-graduate 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 enactment.
26. In terms of Section 4 of the Act, the Commission
established under Section 3 consists of a Chairman and not
less than two and not more than four other members to be
appointed by the State Government satisfying the conditions
of eligibility stipulated under sub-section (2) and (2-a)
thereof. Section 11 enumerates the functions of the
Commission which includes the preparation of guidelines on
matters relating to the method of recruitment, conduct of
examinations where considered necessary, holding of
interviews for making selection of candidates to be
appointed as teachers and selection of experts and
appointment of examiners for such examination. Section 12
29
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 thereof shall be void.
Sub-section (2) of Section 12 requires the management of
the colleges to intimate the existing vacancies and the
vacancies likely to be caused during the ensuing academic
year to the Director of Education (Higher Education) in such
manner as may be prescribed. Sub-section (3) requires the
Director to notify to the Commission in the manner
prescribed a subject wise consolidated list of vacancies
intimated to him from all colleges.
27. The manner of selection of persons for appointment to
the post of teacher of a college has also to be determined by
regulations. It is further provided that candidate shall be
required to indicate their order of preference for the various
30
colleges, vacancies wherein have been advertised. Section
13 of the Act requires the Commission to hold interviews
with or without written examination and to send to the
Director a list recommending such number of names of
candidates found most suitable in each subject as may be as
far as practicable twenty five percent more than the number
of vacancies in that subject duly arranged in the order of
merit. Such a list would then be valid till the receipt of new
list from the Commission. Sub-section (3) empowers the
Director to intimate to the Management the name of a
candidate from the list referred to in sub-section (1) for
being appointed in the vacancies. Sub-section (6) requires a
copy of such intimation to be sent to the candidate
concerned.
28. Section 14 of the Act enjoins upon the Management to
issue an appointment letter to the person whose name has
been intimated to it. It reads:
31
“14. Duty of Management.- (1) The management
shall within a period of one month from the date of
receipt of intimation under sub-section (3) or sub-
section (4) or sub-section (5) of Section 13, issue
appointment letter to the person whose name has
been intimated.
(2) Where the person referred to in sub-section(1)
fails to join the post within the time allowed in the
appointment letter or within such extended time as
the management may allow in this behalf, or where
such person is otherwise not available for
appointment, the Director, shall on the request of
the management intimate fresh name from the list
sent by the Commission under sub-section(1) of
Section 13 in the manner prescribed.”
29. Section 15 entitles the person recommended for
appointment but not so appointed by the management to
approach the Director for issue of an appropriate direction
under sub-section (2). Director is under the said provision
empowered to hold an inquiry and to pass an order requiring
the management to appoint the applicant as a teacher and
to pay to him the salary from the date specified in the order.
32
30. The Government has in exercise of its power under
Section 32 and Section 31 of the Uttar Pradesh Higher
Education Services Commission Act, 1980 framed what are
known “Uttar Pradesh Higher Education Services
Commission Rules, 1981” and “Uttar Pradesh Higher
Education Services Commission (Procedure for Selection of
Teachers) Regulations, 1983”. While the Rules
aforementioned deal with the constitution of the
Commission, disqualification of the members, investigation
into misconduct of members, staff etc. the Regulations
referred to above deal with matters like qualifications and
experience for appointment as teacher, determination and
intimation of vacancies, procedure for selection and the like.
31. A careful reading of the provisions of the Act, the Rules
and the Regulations referred to above do not support the
theory propounded by Mr. Srivastava and Mr. Dwivedi that
the same by a fiction of law create a cadre of principals
33
either for the purpose of applying reservation or otherwise.
As seen earlier the object underlying the legislation was
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 to remove the element of arbitrariness and other
malpractices that were noticed in the making of such
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 terms and conditions of service of those appointed and
the power to remove the members for misconduct and
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
the Act, the Rules and Regulations, to even remotely,
suggest that the legislature intended to create a cadre of
34
principals even where none existed earlier either for
purposes of reservation or otherwise.
32. 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 process is completed and a
candidate is recommended for appointment also does not in
our opinion have the effect of creating a cadre of principals.
All that the said provision is intend to achieve is to ensure
that the vacancies are referred to the Statutory Commission
to enable it to conduct the 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.
33. The power vested in the Director to hold an enquiry
and to issue directions for payment of salary, in case the
35
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 Commission regarding the
merit and suitability of the candidate for such appointment
and entitling the candidate to claim salary if the
appointment is unjustifiably denied to him. Suffice it to say
that 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 process be confused
with the caderisation of the post of Principals.
34. That brings us to the question whether similarity of the
terms and conditions of the employees serving in the
aided/affiliated colleges and the effect the payment of salary
due to such teachers is reimbursed by the State Government
would have the effect of creating a cadre of Principals. Our
answer is in the negative. The fact that the State
Government offers financial aid to the affiliated colleges in
36
terms of payment of salary of those serving such institutions
does not in our opinion have any relevance to the question
whether the posts of 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 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 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 impinge upon the
autonomous character of such institutions nor does payment
37
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.
35. It was also contended on behalf of the respondents,
that the power of appointment effectively rests only with the
Director of Higher Education and that managements have no
option but to comply with the directions in that regard. This
according to the respondents suggests that the Director of
Education is the real employer and the management of the
institutions in which such appointments are made only carry
out a ministerial duty that does not clothe them with the
character of being the true employers. We see no merit even
in that contention. It is true that 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
38
any such obligation flowing from Section 14 does not make
the State 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 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 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.
36. Last but not the least is the fact that the post of
Principals in different aided/affiliated institutions is not
39
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. Reference in this connection may
be made to the Uttar Pradesh Higher Education Aided
Colleges Transfer of Teachers Rules, 2005 framed by the
State Government in exercise of its powers under Section 32
of the U.P. Higher Education Services Commission Act, 1980.
Rule 4 of the said Rules is in this regard relevant and may
be extracted:
“4(1) Teachers appointed on regular basis and
holding lien as permanent teachers shall be entitled
to transfer after 10 years of service only once in the
whole service period.
(2) The transferred teacher shall become the
employee of the college to which he has been
transferred as his service conditions shall be
governed by the statutes of the University
concerned.
(3) The protection of salary of the teacher shall be
admissible but the service rules of the new
employers shall be applicable, to such teacher.
40
(4) The transferred teacher, shall be the junior most
teacher of his cadre working on the date of his
joining in the college concerned.
(5) The teachers shall be transferred against such
posts for which salary is paid from the salary
payment account. The management of the college
before giving its consent to any teacher, shall ensure
that no enquiry or any proceeding is pending against
the teacher concerned and the post to which he has
been considered to be appointed by transfer shall not
be advertised by the Uttar Pradesh Higher Education
Services Commission.
(6) The transfer application for single/mutual
transfers from one college to other shall be
submitted to the Director, High Education through
the management legally construed and approved by
the University along with the written consent of both
the two management. The Director, High Education
shall submit his recommendations to the
Government within one month from the date of
receipt of the application within one month from the
date of receipt of the application. The Government
shall take decision either on the basis of
recommendation of the Director or on its own.
(7) No travel Allowance shall be admissible to the
teachers against such transfers.
(8) The Manager of the former institution shall send
its service book, Character Rolls, Leave Account,
G.P.F., Group Insurance account and last pay
certificate counter signed by the District Inspector of
Schools/Regional Higher Education Officer, as the
case may be, to the Regional Higher Education
Officer of the Region concerned and to the Director,
Higher Education.”
41
37. It is evident from the above that 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 to another
government college in the same cadre. Sub-rule (1) of Rule
4 (supra) 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) 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 when it comes to transfer of a
Principal from one college to another but it certainly shows
that even when there are plurality of posts in the cadre
42
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.
38. Similarly in terms of sub-rule (5) the management of
the college has to ensure that no enquiry or any proceeding
is pending against the teacher concerned before giving its
consent for the transfer of the teacher. This means that the
institutions may refuse to relieve a teacher even when he
may like to be transferred, should an enquiry be pending
against him. Sub-rule (6) envisages that the transfer can be
made only by mutual consent.
39. It is abundantly clear from the above that the attribute
of 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. We have, therefore, no
43
hesitation in holding that there is no cadre of Principals
serving in different aided and affiliated institutions and that
the Principal’s post is a solitary post 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 institutions but also because such
strength being limited to only one post in the cadre is legally
not amenable to reservations in the light of the
pronouncement of this Court to which we shall presently
refer.
40. We may before referring to the decisions of this Court
on the question whether a single post can be reserved,
notice the decision of this Court in Balbir Kaur’s case
(supra) relied upon by Mr. Patwalia. That was also a case
from the State of U.P. It related to appointment of a
44
Principal under the U.P. Secondary Education Services
Commission and Selection Boards Act, 1982. One of the
questions that fell for consideration was whether the post of
Principal in institutions offering secondary education was
amenable to reservation having regard to the Reservation
Act of 1994 referred above. This Court answered the
question in the negative and gave two reasons in support of
that conclusion. Firstly, the Court found that Section 10 of
the U.P. Secondary Education Services Commission and
Selection Boards Act, 1982 expressly excluded the post of
Principal from the purview of the Reservation Act of the year
1994. Secondly and more importantly the post of Principal in
an educational institution being a single post in the cadre
such a post was held not amenable to reservation for any
such reservation would amount to making a 100%
reservation which was found impermissible under Articles 15
and 16 of the Constitution. Relying upon the decision of this
Court in Dr. Chakradhar Paswan v. State of Bihar & Ors.
45
(1988) 2 SCC 214 and Post Graduate Institute of
Medical Education & Research, Chandigarh v. Faculty
Association & Ors. (1998) 4 SCC 1, this Court held that
any reservation qua a single post cadre either directly or by
the device of rotation of roster was not valid. The Court also
held that since the Reservation Act, 1994 did not provide for
clubbing of all the educational institutions in the State of
U.P. for the purpose of reservation there is no question of
clubbing the post of Principals in all the educational
institutions for the purpose of applying the principles of
reservation under the 1994 Act. The following passage is in
this regard apposite:
“it was held that there cannot be any reservation in a
single post cadre and the decisions to the contrary,
upholding reservation in single post cadre either
directly or by device of rotation of roster were not
approved. Besides, as noted above, neither the
principal Act, nor the Rules made thereunder or the
1994 Act provide for clubbing of all educational
institutions in the State of U.P. for the purpose of
reservation and, therefore, there is no question of
clubbing the post of Principals in all the educational
institutions for the purpose of applying the principle
of reservation under the 1994 Act.”
46
41. It was argued on behalf of the respondents that while
Section 10 of the U.P. Secondary Education Services
Commission and Selection Boards Act, 1982 specifically
excluded the post of Head of the institution from the process
of determination of number of vacancies to be reserved for
candidates belonging to Scheduled Caste, Scheduled Tribes
and other Backward Classes, no such exclusion was made in
the case of the 1980 Act that regulates selection for
appointment to the Degree and Post-degree Colleges. This
according to learned counsel for the appellant implied that
wherever the legislature intended that the post of Principal
should be excluded from reservation it specifically provided
so and in case such exclusion was not intended no such
provision was made. The decision in Balbir Kaur’s case
(supra) argued learned counsel for the appellants was on
that basis distinguishable.
47
42. We do not think so. It is true that Section 10 of the
1982 Act which stipulates the procedure for selection of
candidates for 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
from the said determination but it is equally true that
Section 12 of 1982 Act with which we are concerned 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 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 while in the other no
48
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 12 of the 1980 Act.
43. That apart we repeatedly asked learned counsel for the
appellant-State and Mr. Dwivedi, learned counsel appearing
for the managements whether there was any rationale for
giving a differential treatment to Principals in Degree & Post-
Graduate colleges in the matter of reservation, keeping in
view the fact that Principals in Secondary Educational
Institutions were not subject to any such reservation. We
neither expected nor got any explanation from the learned
counsel. The reason was obvious. 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
49
from that process, there is no earthly reason why posts of
Principals in Degree and Post-Graduate colleges which are
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 Post-Graduate
colleges also. Any interpretation that may render the legal
position anomalous or absurd shall, therefore, have to be
eschewed.
44. The other reason why we have no difficulty in rejecting
the contention urged by appellants is the fact that this Court
has in Balbir Kaur’s case (supra) specifically examined the
question whether the post of Principals in secondary
institutions can be reserved independent of the provision by
which such post are excluded from reservation. This Court
held that since the posts of Principals are single post such
reservation is not permissible qua them. There is no way
50
that view can be ignored or wished away by the State or the
managements. Whether or not a single post can be reserved
is even otherwise fairly well settled by the decisions of this
Court to which we need refer only briefly.
45. The decision of this Court in Indra Sawhney and Ors.
v. Union of India and Ors., 1992 Supp.(3) SCC 217,
continues to be the locus classicus on the subject of
reservation. This Court in that case held that reservation
under Articles 14, 15 and 16 must be applied in a manner so
as to strike a balance between opportunities for the reserved
classes on the one hand and other members of the
community on the other. Such reservation cannot exceed
50% in order to be constitutionally valid.
46. In Chakradhan Paswan’s case (supra) this Court
relying upon the decision in Arati Ray Choudhury v. Union
of India 1974 (1) SCC 87, M.R. Balaji v. State of Mysore
51
AIR 1963 SC 649 and T. Devadasan v. Union of India AIR
1964 SC 179 held that separate posts in different
institutions cannot be clubbed together for the purpose of
reservation and that reservations may be made only where
there are more than one posts. Reservation of only a single
post in the cadre would amount to 100% reservation and
thereby violate Articles 14(1) and 16(4) of the Constitution.
In Bhide Girls Education Society v. Education Officer,
Zila Parishad, Nagpur and Ors., 1993 Supp (3) SCC 527
this Court held that a single post of Headmistress of an
institution could not be reserved as the same would amount
to making a 100% reservation.
47. The controversy was authoritatively set at rest by the
Constitution Bench decision of this Court in Post-graduate
Institute of Medical Education & Research, Chandigarh
v. Faculty Association and Ors. (1998) 4 SCC 1 case
(supra) where this Court overruled the decisions of this
52
Court in Union of India and Anr. v. Madhav s/o Gajanan
Chaubal and Anr. (1997) 2 SCC 332, Union of India v.
Brij Lal Thakur (1997) 4 SCC 278 and State of Bihar v.
Bageshwari Prasad 1995 Supp (1) SCC 432 and observed:
“34. In a single post cadre, reservation at any point
of time on account of rotation of roster is bound to
bring about a situation where such a single post in
the cadre will be kept reserved exclusively for the
members of the backward classes and in total
exclusion of the general members of the public. Such
total exclusion of general members of the public and
cent per cent reservation for the backward classes is
not permissible within the constitutional framework.
The decisions of this Court to this effect over the
decades have been consistent.
35. Hence, until there is plurality of posts in a cadre,
the question of reservation will not arise because any
attempt of reservation by whatever means and even
with the device of rotation of roster in a single post
cadre is bound to create 100% reservation of such
post whenever such reservation is to be
implemented. The device of rotation of roster in
respect of single post cadre will only mean that on
some occasions there will be complete reservation
and the appointment to such post is kept out of
bounds to the members of a large segment of the
community who do not belong to any reserved class,
but on some other occasions the post will be
available for open competition when in fact on all
such occasions, a single post cadre should have been
filled only by open competition amongst all segments
of the society.”
53
48. In the light of the above decision, we have no
hesitation in holding that the post of principals in each one
of the aided/affiliated institution being a single post in the
cadre is not amenable to any reservation. Question No.(ii) is
accordingly answered in the affirmative.
49. Mr. Patwalia, learned counsel for the selected
candidates then argued that if the High Court was correct in
holding that the provisions of 1994 Act regulating
reservation of vacancy did not apply to the post of Principals
in different affiliated/aided Degree and Post-Graduate
colleges, there was no reason why the undertakings
furnished by the selected candidates to this Court as a step
in aid of their appointments should not be discharged and
the selected candidates allowed to assume office on a
substantive basis subject to any direction which the
competent Court may issue as regards the validity of the
54
selection process and the consequent appointments. He
urged the State Government was not releasing in favour of
the appointed candidates the full benefits of such
appointments in the form of increments and allowances etc.
only because the appointments made were subject to the
outcome of these proceedings and the undertaking furnished
by the candidates. Alternatively, he urged that even if the
appointments made by the State pursuant to the directions
of this Court were to remain incohate and subject to the
outcome of the writ petitions before the High Court there
was no reason why dues legitimately payable to the selected
candidates should not be directed to be released on such
conditions as the Court deem fit and proper.
50. On behalf of the State and the management it was per
contra argued that the release of any further benefits to the
selected candidates could await the disposal of the writ
55
petitions pending before the High Court which disposal could
be expedited in the interest of all concerned.
51. The view taken by the High Court in so far as the
applicability of reservation to single posts of Principal in the
affiliated and aided institutions has been affirmed by us
while answering question No.(ii) above. To that extent the
controversy is being given a quietus. All the same the
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 under Section 6 of the
1980 Act or Article 154 of the Constitution has been left
open by us 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. A parallel enquiry at the Government level
into those questions has been held by us to be unnecessary.
56
There is, therefore, no final adjudication of the dispute
between the parties in so far as the validity of the selection
process is concerned. Such being the case we do not
consider it necessary to relieve the appointed candidates of
the obligations flowing from the undertaking given by them
subject to which only the appointments were allowed to be
made. This may not, however, mean that the appointed
candidates will not be entitled to claim full benefit of the
post admissible to the incumbent to which they have been
appointed during the period such appointments continue to
remain in force. The directions under which the
appointments were allowed to be made also did not permit
the State to withhold benefits legitimately flowing from such
appointments. If any additional financial benefits by way of
allowances become payable to the appointed candidates the
same must be allowed to be drawn by them. Enjoyment of
all such benefits would also remain subject to the
undertakings which the appointed candidates have filed
57
before this Court.
52. An apprehension was expressed before us that the
matter may continue languishing in the High Court for a long
time especially because of the failure of the writ petitioners
before the High Court in impleading the selected candidates
as parties. It was submitted that orders for addition of the
selected candidates could be passed by this Court to allay
any such apprehensions. We see no impediment in passing
appropriate orders in that regard, especially when, none of
the parties before us were opposed to any such orders
impleading the selected candidates as party respondents to
the pending writ petitions before the High Court.
53. In the result we dispose of these appeals with the
following directions:
58
(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.
(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 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 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.
59
(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. 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
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.
60
(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.
61
(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 same shall, however, be subject to the
outcome of the 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.
54. The parties shall bear their own costs.
……………………………..J.
(V.S. SIRPURKAR)
62
……………………………..J.
(T.S. THAKUR)
New Delhi
March 8, 2011
63