{"id":239202,"date":"2011-03-08T00:00:00","date_gmt":"2011-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-bharat-singh-ors-on-8-march-2011"},"modified":"2018-12-10T05:50:30","modified_gmt":"2018-12-10T00:20:30","slug":"state-of-u-p-ors-vs-bharat-singh-ors-on-8-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-bharat-singh-ors-on-8-march-2011","title":{"rendered":"State Of U.P.& Ors vs Bharat Singh & Ors on 8 March, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P.& Ors vs Bharat Singh & Ors on 8 March, 2011<\/div>\n
Bench: V.S. Sirpurkar, T.S. Thakur<\/div>\n
                                                              REPORTABLE\n\n\n\n\n                  IN THE SUPREME COURT OF INDIA\n\n\n                  CIVIL APPELLATE JURISDICITION\n\n\n           CIVIL APPEAL NO.       2351           OF 2011\n\n            (Arising out of SLP (C) No.25966 of 2008)\n\n\n\n\nState of U.P. & Ors.                              ...Appellants\n\n\n\n\n\n        Versus\n\n\n\n\n\nBharat Singh & Ors.                               ...Respondents\n\n\n\n\n\nWith Civil Appeal Nos.     2352-2361       of 2011\n\n(Arising  out  of  SLP  (C)  Nos.27077,  27522-27524,  27526-\n\n27528, 27530-27531 of 2008 and No.455 of 2009\n\n\nWith \n\n\nT.P. (C) Nos.3 and 1136 of 2009\n\n\nContempt Petition (C) No.32 of 2009 in SLP (C) No.25966 of \n\n2008\n\n\n                          J U D G M E N T\n<\/pre>\n
T.S. THAKUR, J.\n<\/p>\n
1.    Leave granted.\n<\/p>\n
2.    These appeals arise out of a judgment and order dated <\/p>\n
7th  August  2008  passed  by  the  High  Court  of  Allahabad <\/p>\n
whereby  the  High  Court  has  allowed  the  writ  petitions  filed <\/p>\n
by  the  selected  candidates,  quashed  the  orders  under <\/p>\n
challenge  in  the  same  and  by  a  mandamus  directed  the <\/p>\n
Director,     Higher     Education     to     give     effect     to     the <\/p>\n
recommendations  made  by  the  U.P.  Higher  Education <\/p>\n
Service Commission for appointment to the post of Principals <\/p>\n
in  aided\/affiliated  Degree  and  Post-Graduate  colleges.    The <\/p>\n
High Court has further directed issue of placement orders in <\/p>\n
favour  of  the  selected  candidates  without  any  delay.    The <\/p>\n
                                 2<\/span><\/p>\n
facts  giving  rise  to  the  filing  of  the  petitions  may  be <\/p>\n
summarized as under:\n<\/p>\n
3.    The Government of U.P. has established what is known <\/p>\n
as  `Uttar  Pradesh  Higher  Education  Services  Commission’  in <\/p>\n
terms of Section 3 of the U.P. Higher Education Services Act, <\/p>\n
1980.  The  Commission  is,  among  other  functions  assigned <\/p>\n
to  it  under  the  Act,  empowered  to  prepare  guidelines <\/p>\n
touching  the  method  of  recruitment  of  teachers  in  colleges <\/p>\n
and  conduct  examinations,  hold  interviews  and  make <\/p>\n
selection  of  candidates  for  being  appointed  as  teachers  and <\/p>\n
make  recommendations  to  the  managements  concerned <\/p>\n
regarding  the  appointment  of  selected  candidates.  The <\/p>\n
selection     process  undertaken  by  the  Commission  is, <\/p>\n
however, confined only to colleges to which the privileges of <\/p>\n
affiliation or recognition have been granted by the University <\/p>\n
including  colleges  that  are  maintained  by  local  authorities.\n<\/p>\n
Colleges  that  are  maintained  by  the  State  Government  or <\/p>\n
                                3<\/span><\/p>\n
colleges  imparting  medical  education  are  outside  the <\/p>\n
purview  of  the  Act  aforementioned.  We  shall  presently  refer <\/p>\n
to  the  provisions  of  the  Act  in  greater  detail  but  we  may  at <\/p>\n
this  stage  only  say  that  in  terms  of  Section  12  of  the  Act, <\/p>\n
the    Managements  of  the  colleges  are  required  to  intimate <\/p>\n
the existing vacancies and the vacancies likely to be  caused <\/p>\n
during  the  course  of  the  ensuing  academic  year  to  the <\/p>\n
Director  of  Education  who  is  then  required  to  notify  to  the <\/p>\n
Commission  a  subject  wise  consolidated  list  of  vacancies <\/p>\n
intimated to him from all colleges to enable the Commission <\/p>\n
to initiate and undertake the selection process.\n<\/p>\n
4.    Based on the information notified to the Commission in <\/p>\n
terms of the above procedure, a consolidated advertisement <\/p>\n
bearing multiple numbers (33 to 36) was issued by it on 29th <\/p>\n
May  2003  inviting  applications  for  the  vacancies  mentioned <\/p>\n
in  the  said  advertisement.    A  large  number  of  writ  petitions <\/p>\n
challenging  the  said  advertisement  came  to  be  filed  before <\/p>\n
                                   4<\/span><\/p>\n
the High Court of Allahabad primarily on the ground that the <\/p>\n
post  of  Principals  notified  by  the  Commission  available  as <\/p>\n
they  were  in  different  colleges  affiliated  to  the  University <\/p>\n
being  single  posts  in  the  cadre  were  not  amenable  to <\/p>\n
reservation.  These  writ  petitions  were  entertained  by  the <\/p>\n
High  Court  and  by  interim  orders  dated  1st  September,  15th <\/p>\n
September  and  22nd  September  2003,  directions  issued  to <\/p>\n
the Commission to the effect that the post of Principals shall <\/p>\n
be treated as non-reserved posts.\n<\/p>\n
5.    In     compliance     with     the     above     directions,     the <\/p>\n
Commission  issued  a  fresh  advertisement  dated  24th <\/p>\n
February      2005     being     advertisement         No.39     inviting <\/p>\n
applications  for  140  posts  of  Principals,  out  of  which  87 <\/p>\n
posts  were  available  in  Post-Graduate  Colleges  while  53 <\/p>\n
others  were  in  Degree  Colleges.    The  advertisement  did  not <\/p>\n
make  any  mention  about  any  reservation  implying  thereby <\/p>\n
that  the  posts  were  offered  in  the  general\/open  merit <\/p>\n
                                     5<\/span><\/p>\n
category.   The  entire  selection  process  was  to  be  subject to <\/p>\n
the  ultimate  outcome  of  the  writ  petitions  pending  before <\/p>\n
the Allahabad High Court.  It is common ground that interim <\/p>\n
orders  dated 1st September 2003,  15th September 2003  and <\/p>\n
22nd  September  2003  were  challenged  before  this  Court  by <\/p>\n
way  of  SLPs,  but  the  said  petitions  were  dismissed  on  the <\/p>\n
ground  of  delay  and  laches  by  this  Court’s  order  dated  3rd <\/p>\n
November, 2008.\n<\/p>\n
6.    The Commission took nearly two years to complete the <\/p>\n
selection  process  which  culminated  in  the  publication  of  a <\/p>\n
select  list  in  terms  of  a  notification  dated  15th  May  2007.\n<\/p>\n
With  the  publication  of  the  select  list,  the  batch  of  writ <\/p>\n
petitions  pending  before  the  High  Court  in      which  the <\/p>\n
interim  orders  mentioned  above  had  been  issued  was <\/p>\n
dismissed  as  infructuous.    The  High  Court  while  doing  so <\/p>\n
noted  the  submission  made  on  behalf  of  the  Commission <\/p>\n
that  there  was  no  cadre  of  Principals  in  the  Post-Graduate <\/p>\n
                                 6<\/span><\/p>\n
colleges and the posts of Principals were not interchangeable <\/p>\n
or transferable.\n<\/p>\n
7.    In the case of the appellant-State of Uttar Pradesh that <\/p>\n
before appointment orders could be issued to those included <\/p>\n
in the select list, a number of complaints were received by it <\/p>\n
against  the  selection  held  by  the  Commission  alleging  large <\/p>\n
scale  irregularities and  malpractices  of  serious  nature in  the <\/p>\n
selection  procedure  and  demanding  an  inquiry  into  the <\/p>\n
same.  The  State  Government  accordingly  directed  the <\/p>\n
Divisional  Commissioner,  Allahabad  to  hold  an  inquiry  into <\/p>\n
the  allegations  and  to  submit  a  report  within  15  days.    The <\/p>\n
Divisional     Commissioner      in     turn     asked     for     certain <\/p>\n
information from the Service Commission in connection with <\/p>\n
the  inquiry  with  a  copy  to  the  Director,  Higher  Education <\/p>\n
requesting  him  to  show  restraint  in  issuing  the  placement <\/p>\n
orders  in  terms  of  the  recommendations  received  from  the <\/p>\n
Service Commission.\n<\/p>\n
                                  7<\/span><\/p>\n
8.    Aggrieved  by  the  said  communication,  the  selected <\/p>\n
candidates  filed  several  writ  petitions  before  the  High  Court <\/p>\n
of  Allahabad  challenging  the  notification  issued  by  the <\/p>\n
Government  appointing  the  Divisional  Commissioner  as  an <\/p>\n
inquiry officer and the letter written by him to the Director of <\/p>\n
Education  asking  him  to  withhold  the  issue  of  placement <\/p>\n
orders  in  favour  of  the  selected  candidates.  While  the  said <\/p>\n
writ  petitions  were  still  pending  disposal  the  Divisional <\/p>\n
Commissioner  submitted  a  preliminary  inquiry  report  dated <\/p>\n
6th  July  2007  in  which  he  recorded  a  prima  facie  conclusion <\/p>\n
that  a  series  of  irregularities  and  malpractices  had  been <\/p>\n
committed  by  the  Service  Commission  in  the  process  of <\/p>\n
selection. The High Court in the meantime passed an interim <\/p>\n
order  dated  13th  July  2007  staying  the  operation  of  the <\/p>\n
notification  appointing  the  Divisional  Commissioner  as  an <\/p>\n
inquiry  officer  with  a  direction  to  the  respondent  to  issue <\/p>\n
                                 8<\/span><\/p>\n
appointment  letters  to  the  selected  candidates  within  three <\/p>\n
weeks.\n<\/p>\n
9.     Aggrieved  by  the  interim  order  referred  to  above,  the <\/p>\n
State filed a special leave petition in this Court in which this <\/p>\n
Court by an order dated 21st August 2007 stayed the interim <\/p>\n
direction  in  so  far as the same  directed  the Director,  Higher <\/p>\n
Education  to  issue  appointment  letters  in  favour  of  the <\/p>\n
selected  candidates.  The  special  leave  petition  was  finally <\/p>\n
disposed by this Court on 12th February 2008 with a request <\/p>\n
to the High Court to dispose of the writ petitions within four <\/p>\n
months.    The  interim  order  issued  by  this  Court  on  21st <\/p>\n
August 2007 was continued in the meantime.\n<\/p>\n
10.    Before  the  High  Court,  the  Government  filed  a  counter <\/p>\n
affidavit  to  the  writ  petition  stating  that  there  were  serious <\/p>\n
infirmities  in  the  process  and  an  indepth  inquiry  into  the <\/p>\n
matter  was  necessary.    The  High  Court  eventually  allowed <\/p>\n
                                  9<\/span><\/p>\n
the  writ  petition  quashing  orders  dated  12th  June  2007  and <\/p>\n
16th June 2007 impugned therein and issued a mandamus to <\/p>\n
the  Director,  Higher  Education  Service  Commission  to  make <\/p>\n
placements in favour of the selected candidates. The present <\/p>\n
appeals assail the correctness of the said orders.\n<\/p>\n
11.    We may at this stage point out that by an interim order <\/p>\n
dated 20th November, 2008 passed in these cases this Court <\/p>\n
directed     the     appellant-State     to     appoint     the     selected <\/p>\n
candidates-respondents  in  these  appeals  as  Principals  of <\/p>\n
various  aided  non-Government  degree  colleges  and  post-\n<\/p>\n
graduate  colleges  within  a  period  of  one  month  subject  to <\/p>\n
the decision of these appeals, provided the respondents filed <\/p>\n
undertakings in this Court to the effect that in case they lose <\/p>\n
the  battle  they  will  stand  reverted  to  the  posts  of  Readers <\/p>\n
and  the  difference  of  salary  amount  drawn  by  them  as <\/p>\n
Principals  recovered  and  paid  back  to  the  State.  That <\/p>\n
direction was reiterated by this Court in terms of order dated <\/p>\n
                                  10<\/span><\/p>\n
23rd April, 2009 whereby this Court directed that although 56 <\/p>\n
candidates  had already been appointed out  of the select list <\/p>\n
in different Degree and Post-Graduate colleges, the direction <\/p>\n
issued by this Court should be complied with in toto within a <\/p>\n
period of one month from the date of the said order. Hearing <\/p>\n
of  the  SLPs  was  also  directed  to  be  expedited.    It  is  not  in <\/p>\n
dispute  that  the  State  has  pursuant  to  the  above  direction <\/p>\n
appointed     the     selected     candidates     upon     their     filing <\/p>\n
undertakings  before  this  Court  with  the  result  that  all  the <\/p>\n
selected  candidates  are  duly  appointed  subject  to  the <\/p>\n
outcome  of  the  present  appeals  and  subject  to  the <\/p>\n
conditions stipulated in the interim orders mentioned above.\n<\/p>\n
12.    Appearing  for  the  appellant-State  Mr.  Srivastava  made <\/p>\n
a  two-fold  submission  in  support  of  the  appeals.  Firstly,  he <\/p>\n
contended that the High Court had fallen in error in quashing <\/p>\n
order  dated  12th  June,  2007  appointing  the  Divisional <\/p>\n
Commissioner,  Allahabad  for  holding  a  preliminary  enquiry <\/p>\n
                                   11<\/span><\/p>\n
into  the  allegations  of  malpractices  in  the  selection  process <\/p>\n
based  on  the  complaints  received  by  the  Government.  He <\/p>\n
urged  that  Section  6(1)  of  the  Uttar  Pradesh  Higher <\/p>\n
Education  Services  Commission  Act,  1980  empowered  the <\/p>\n
State Government to remove from office any member of the <\/p>\n
Service     Commission,     in     situations     where     the     State <\/p>\n
Government  considers  them  unfit  to  continue  in  office  by <\/p>\n
reason  of  proved  misconduct.  The  source  of  power  so <\/p>\n
available  was  according  to  the  learned  counsel  sufficient  for <\/p>\n
the  Government  to  hold  an  enquiry  into  the  allegations <\/p>\n
regarding  the  legality  and  procedural  regularity  of  the <\/p>\n
selection  process  for  it  was  only  on  the  basis  of  any  such <\/p>\n
enquiry  that  the  Government  could  determine  whether  any <\/p>\n
misconduct  had  been  committed  by  the  members  of  the <\/p>\n
Commission.  The  Government  could  on  the  basis  of  the <\/p>\n
outcome  of  the  enquiry  act  against  the  member  responsible <\/p>\n
for  such  misconduct  and  irregularity  and\/or  refuse  to <\/p>\n
approve  the  end  result  of  the  selection  process.  The <\/p>\n
                                   12<\/span><\/p>\n
preliminary  enquiry,  therefore,  had  the  sanction  of  law, <\/p>\n
argued  the  learned  counsel  and  could  not  be  cut  short  by <\/p>\n
the High Court in the manner it has done.\n<\/p>\n
13.    Mr. Srivastava further contended that even if Section 6 <\/p>\n
is  given  a  restricted  interpretation  its  rigors  are  confined  to <\/p>\n
the  removal  of  the  members  of  the  Commission  from  office <\/p>\n
and  do  not  extend  to  the  holding  of  an  enquiry  into  the <\/p>\n
validity  of  the  selection  process,  yet  the  general  executive <\/p>\n
power  vested  in  the  State  Government  under  Article  154  of <\/p>\n
the  Constitution  of  India  was  wide  enough  to  entitle  the <\/p>\n
Government  to  institute  such  an  enquiry  in  cases  where <\/p>\n
allegations  of  rampant  corruption,  malpractice  and  the  like <\/p>\n
vitiating  the  selection  process  are  made.  Relying  upon  the <\/p>\n
pronouncements of this Court it was urged that no candidate <\/p>\n
had  a  right  to  seek  an  appointment  simply  because  he  has <\/p>\n
been  empanelled  for  such  an  appointment.    In  cases  where <\/p>\n
the State has serious, reservations about the fairness of the <\/p>\n
                                  13<\/span><\/p>\n
selection  process  and  where  allegations  casting  a  cloud  on <\/p>\n
the legality and propriety of the procedure have been made, <\/p>\n
the  State  could  not  refuse  an  enquiry  nor  could  any  such <\/p>\n
enquiry  be  struck  down  and  appointments  ordered  having <\/p>\n
regard  to  the  compelling  need  for  maintaining  absolute <\/p>\n
purity in the selection process leading to such appointments.\n<\/p>\n
14.    Secondly, it was argued that the High Court was wrong <\/p>\n
in  disposing  of  writ  petition  Nos.  39369\/2003,  39370\/2003, <\/p>\n
48621\/2003,       41191\/2003,             52411\/2003,         70062\/2003, <\/p>\n
42992\/2003,  41345\/2003  and  38714\/2003  as  infructuous.\n<\/p>\n
The  High  Court  had  ignored  the  fact  that  the  issue  of <\/p>\n
advertisement No.39 pursuant to the interim direction of the <\/p>\n
High Court and the selection process concluded on the basis <\/p>\n
thereof was subject to the outcome of the said writ petitions.\n<\/p>\n
Mere  issue  of  a  fresh  notification  in  compliance  with  the <\/p>\n
order  passed  by  the  High  Court  or  the  completion  of  the <\/p>\n
selection     process     did     not     render     the     writ     petitions <\/p>\n
infructuous,  for  the question  whether  the  posts  of  Principals <\/p>\n
                                    14<\/span><\/p>\n
were subject to reservation had to be answered by the High <\/p>\n
Court which it had omitted to do. It was further argued that <\/p>\n
the  High  Court  had  not  only  ignored  the  decision  of  a <\/p>\n
coordinate Bench in Onkar Dutt Sharma and Ors. v. State <\/p>\n
of  U.P.  and  Ors.  (2001)  1  SAC  505,  but  failed  to <\/p>\n
satisfactorily  address  the  question  whether  the  post  of <\/p>\n
Principals  constituted  a  cadre  and  was,  therefore,  amenable <\/p>\n
to  reservation  in  terms  of  The  Uttar  Pradesh  Services <\/p>\n
(Reservation for Scheduled Castes and Scheduled Tribes and <\/p>\n
other  Backward  Classes)  Act,  1994.    It  was  contended  that <\/p>\n
the provisions of the Uttar Pradesh Higher Education Service <\/p>\n
Commission  Act,  1980  had  the  effect  of  clubbing  posts  of <\/p>\n
Principals  in  different  affiliated  colleges  and  once  such <\/p>\n
clubbing  was  statutorily  prescribed  for  purposes  of  process <\/p>\n
of selection and recommendations for appointment, the said <\/p>\n
posts could be treated as a part of one single cadre to which <\/p>\n
provisions of Reservation Act, 1994 would apply.\n<\/p>\n
                               15<\/span><\/p>\n
15.     Mr.  Dinesh  Dwivedi  learned,  senior  counsel  appearing <\/p>\n
for     the     management          who     are     interveners         in     SLP <\/p>\n
No.27077\/2008  contended  that  the  expression  “cadre”\n<\/p>\n
appearing in the Reservation Act, 1994 had to be interpreted <\/p>\n
liberally.  So  interpreted  Uttar  Pradesh  Higher  Services <\/p>\n
Commission  Act  had  the  effect  of  bringing  about  a  cadre  of <\/p>\n
Principals  in  aided  and  affiliated  Degree  and  Post-Graduate <\/p>\n
institutions     argued     the      learned        counsel.     He      further <\/p>\n
submitted  that  several  features  supported  the  caderisation <\/p>\n
of  the  posts  in  such  institutions.  For  instance  the  salary  of <\/p>\n
the incumbent Principals in such institutions was paid by the <\/p>\n
State  Government.  Reference  in  this  regard  was  made  by <\/p>\n
him  to  Sections  60-A,  60-B,  60-D  and  60-E  of  the  Uttar <\/p>\n
Pradesh State Universities Act, 1973. It was argued that the <\/p>\n
clubbing of posts for conduct of a common selection process <\/p>\n
under  1980  Act  (supra)  and  the  fact  that  the  power  of <\/p>\n
appointment  against  the  said  post  was  effectively  with  the <\/p>\n
Director  having  regard  to  the  provisions  of  Sections  12  and <\/p>\n
                                      16<\/span><\/p>\n
13  of  the  Act  was  also  a  significant  feature  that  indicated <\/p>\n
that  the  posts  comprised  a  single  cadre  of  Principals.    The <\/p>\n
posts  of  teachers  were  also  interchangeable  subject  to <\/p>\n
certain  conditions  and  restrictions.  The  fact  that  the  terms <\/p>\n
and  conditions  of  service  of  the  employees  were  the  same <\/p>\n
under  the  relevant  rules  stipulated  by  the  affiliating <\/p>\n
universities  and  the  retirement  and  termination  was  not  in <\/p>\n
the hands of the managements also suggested, according to <\/p>\n
the  learned  counsel,  that  the  posts  of  Principals  constituted <\/p>\n
a  single  cadre.  Mr.  Dwivedi  also  drew  support  from  the  fact <\/p>\n
that  posts  of  Principals  of  secondary  schools  were  excluded <\/p>\n
from  the  rigors  of  reservations  while  the  Degree  and  Post-\n<\/p>\n
Graduate  institutes  did  not  enjoy  any  such  immunity.  The <\/p>\n
difference between the two provisions was, according to Mr. <\/p>\n
Dwivedi,  significant  and  showed  that  wherever  reservation <\/p>\n
was not intended to apply to the post of Principals as in the <\/p>\n
case of secondary schools, a specific provision  to that effect <\/p>\n
was made in the statute.\n<\/p>\n
                                 17<\/span><\/p>\n
16.    On  behalf  of  the  respondents  Mr.  P.S.  Patwalia,  senior <\/p>\n
counsel,     argued     that     the     enquiry     instituted     by     the <\/p>\n
Government  into  the  validity  of  the  selection  process  was <\/p>\n
motivated by political considerations. He urged that selection <\/p>\n
process  having  been  completed  by  the  Commission  during <\/p>\n
the  previous  regime  the  same  was  not  found  palatable  by <\/p>\n
the successor Government in the State of Uttar Pradesh who <\/p>\n
contrived  to  subvert  the  entire  exercise  on  one  pretext  or <\/p>\n
other.\n<\/p>\n
17.    Mr.  Patwalia  further  submitted  that  there  was  no  real <\/p>\n
basis  for  the  Government  to  institute  an  enquiry  into  the <\/p>\n
validity of the selection especially when the allegations were <\/p>\n
totally  vague,  unfounded  and  imaginary  containing  an <\/p>\n
appeal  to  the  Government  to  intervene  on  caste  and <\/p>\n
community considerations rather than any concrete evidence <\/p>\n
regarding  the  commission  of  any  malpractices.  He  drew  our <\/p>\n
                                    18<\/span><\/p>\n
attention to the order passed by the High Court to show that <\/p>\n
the State Government had failed to come out with a specific <\/p>\n
statement that it intended to conduct any further enquiry or <\/p>\n
proceedings  in  the  matter.  The  High  Court  was,  therefore, <\/p>\n
justified in quashing the preliminary report submitted by the <\/p>\n
Divisional Commissioner  especially because the Government <\/p>\n
did  not,  according  to  the  learned  counsel,  have  the  power <\/p>\n
under  Section  6  of  the  Uttar  Pradesh  Higher  Education <\/p>\n
Services  Act  to  nullify  a  validly  concluded  selection  process.\n<\/p>\n
He  refuted  the  contention  that  the  Government  could <\/p>\n
exercise its general executive power under Article 154 of the <\/p>\n
Constitution and submitted that no such argument was ever <\/p>\n
urged before the High Court.\n<\/p>\n
18.    Mr.  Patwalia  further  contended  that  the  provisions  of <\/p>\n
the Uttar Pradesh Higher Education Services Commission Act <\/p>\n
did  not  have  the  effect  of  bringing  about  a  cadre  of <\/p>\n
Principals and termed the submissions made to that effect to <\/p>\n
                                 19<\/span><\/p>\n
be  wholly  fallacious.  He  submitted  that  the  minimum <\/p>\n
requirement  for  holding  that  a  cadre  exists  in  any  given <\/p>\n
service  is  that  those  who  constitute  a  part  of  a  given  cadre <\/p>\n
must  have  a  common  employer.    This  requirement  was  not <\/p>\n
satisfied  in  the  instant  case  as  the  employer  of  each  one  of <\/p>\n
the     Principals     was     the      management          of       the     college <\/p>\n
concerned.      The      posts         of     the     Principals      were      not <\/p>\n
interchangeable or transferrable under the Rules except with <\/p>\n
the mutual consent of the incumbents and the management <\/p>\n
under  whom  they  were  serving.  The  question  whether  a <\/p>\n
cadre  existed  in  such  circumstances  was,  according  to  Mr. <\/p>\n
Patwalia,  concluded  by  the  decision  of  this  Court  in  Balbir <\/p>\n
Kaur  and  Anr.  v.  Uttar  Pradesh  Secondary  Education <\/p>\n
Services Selection Board, Allahabad and Ors. (2008) 12 <\/p>\n
SCC 1.\n<\/p>\n
19.     Mr.  Pallav  Shishodia  and  Mr.  V.  Shekhar,  senior <\/p>\n
counsels  who  appeared  for  some  of  the  respondents  also <\/p>\n
                                        20<\/span><\/p>\n
adopted the arguments advanced by Mr. Patwalia that there <\/p>\n
was  nothing  in  the  provisions  of  the  Uttar  Pradesh  Higher <\/p>\n
Education Services Commission Act or the Reservation Act of <\/p>\n
1994  for  that  matter  to  suggest  that  the  Legislature  ever <\/p>\n
intended  to  create  a  cadre  of  Principals  serving  under <\/p>\n
different  managements.  The  only  purpose  underlying  the <\/p>\n
two  legislations,  according  to  the  learned  counsel,  was  to <\/p>\n
provide  a  unified  mechanism  for  selection  of  suitable <\/p>\n
candidates  for  appointment  as  Principals  to  ensure  that <\/p>\n
appointments are made on a fair and transparent basis.  The <\/p>\n
State  considered  that  to  be  necessary  not  only  in  the <\/p>\n
interests  of  getting  the  best  candidates  for  the  institutions <\/p>\n
that  were  affiliated  to  the  universities  and  were  serving  a <\/p>\n
laudable public purpose but also because the salary payable <\/p>\n
to  those  appointed  against  such  vacancies  was  reimbursed <\/p>\n
to the institutions by the State.\n<\/p>\n
20.    Two questions fall for our determination, these are :\n<\/p>\n
                                 21<\/span><\/p>\n
       (i) Whether the High Court was justified in quashing the <\/p>\n
       appointment of the enquiry officer appointed to look into <\/p>\n
       the allegations of malpractice allegedly committed in the <\/p>\n
       course of selection process and <\/p>\n<\/blockquote>\n
       (ii)  Whether  the  posts  of  Principals  in  different <\/p>\n
       affiliated\/aided  Degree  and  Post-Graduate  institutions <\/p>\n
       constitute  a  cadre  and  are,  therefore,  subject  to <\/p>\n
       reservation  as  prescribed  under  the  provisions  of  the <\/p>\n
       Reservation Act of 1994.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
21.     We propose to take up the questions ad seriatim.\n<\/p>\n
Re: Question No.(i)<\/p>\n
22.     Selection  of  Principals  in  affiliated\/aided  Degree  and <\/p>\n
Post-graduate  colleges  is  regulated  by  the  Uttar  Pradesh <\/p>\n
Higher  Education  Services  Commission  Act,  the  Rules  and <\/p>\n
                                   22<\/span><\/p>\n
Regulations  framed  thereunder.  The  selection  process  was <\/p>\n
initiated and concluded by the Commission treating the post <\/p>\n
to  be  open  category  post  pursuant  to  the  interim  directions <\/p>\n
issued  by  the  High  Court.  The  select  list  was  also  duly <\/p>\n
notified.  In  the  ordinary  course  recommendations  of  a <\/p>\n
statutory  Commission  established  for  selecting  suitable <\/p>\n
candidates  as  teachers  including  Principals  for  the  colleges <\/p>\n
ought to get the respect it deserved. The State Government, <\/p>\n
however,  appears  to  have  received  some  complaints  on  the <\/p>\n
basis  of  which  it  initiated  an  enquiry  culminating  in  the <\/p>\n
submission  of  a  preliminary  report  finding  fault  with  the <\/p>\n
procedure adopted by the Commission in the conduct of the <\/p>\n
selection  process.  According  to  the  appellant-State  of  U.P.\n<\/p>\n
the allegations made in the complaint were serious in nature <\/p>\n
and deserved to be looked into.  It was urged that the State <\/p>\n
had all the intentions of instituting a further enquiry into the <\/p>\n
matter on the basis of the preliminary report submitted to it.\n<\/p>\n
The High Court did not think so.  From a reading of the order <\/p>\n
                                23<\/span><\/p>\n
passed  in  W.P.  No.29524  of  2007,  it  appears  that  the  High <\/p>\n
Court  had  given  an  opportunity  to  the  learned  counsel  for <\/p>\n
the  State  to  take  instructions  whether  the  Government <\/p>\n
intended  to  institute  any  further  enquiry  in  the  matter.\n<\/p>\n
Despite  the  opportunity  learned  counsel  for  the  State  had <\/p>\n
reported  no  instructions  in  the  matter.  This  is  evident  from <\/p>\n
the  following  passage  appearing  in  the  order  passed  by  the <\/p>\n
High Court:\n<\/p>\n
                  “On all these dates, we requested the standing <\/p>\n
            counsel  to  give  the  stand  of  the  State  Government. <\/p>\n
            Learned  standing  counsel  informs  that  he  had  sent <\/p>\n
            the  information  to  the  State  Government  but  no <\/p>\n
            instructions have been received by him.”<\/p>\n<\/blockquote>\n
23.    The High Court,  therefore, proceeded on  the basis  that <\/p>\n
the  Government  did  not  intend  to  conduct  any  further <\/p>\n
enquiry  into  the  matter  and  accordingly  quashed  the  order <\/p>\n
appointing the enquiry officer as also the instructions issued <\/p>\n
by him against the making of the appointments. We consider <\/p>\n
it  unnecessary  to  examine  whether  the  complaints  allegedly <\/p>\n
received  by  the  State  Government  made  out  a  prima  facie <\/p>\n
                                    24<\/span><\/p>\n
case  for  an  enquiry  into  the  matter  or  whether  the  enquiry <\/p>\n
instituted by the Government was vitiated by any political or <\/p>\n
other  considerations.    We  would  also  not  like  to  go  into  the <\/p>\n
question whether or not the power vested in the State under <\/p>\n
Section  6  of  the  Uttar  Pradesh  Higher  Education  Services <\/p>\n
Commission  Act  (supra)  which  the  State  Government <\/p>\n
purportedly  invoked  could  be  invoked  by  it  for  purposes  of <\/p>\n
undoing  the  selection  process  and  if  could  not  be,  whether <\/p>\n
the  general  executive  power  vested  in  the  State  under <\/p>\n
Article  154  of  the  Constitution  could  be  exercised  by  it  to <\/p>\n
institute  an  enquiry  in  the  facts  and  circumstances  of  the <\/p>\n
case.  We  say  so  not  because  the  questions  were  not <\/p>\n
germane  to  the  controversy  before  us  but  because  any <\/p>\n
enquiry  by  the  State  Government  whether  in  exercise  of  its <\/p>\n
power  under  Section  6  or  in  exercise  of  its  executive  power <\/p>\n
under  Article  154  would only duplicate the exercise  which  is <\/p>\n
already pending before the High Court in the form of several <\/p>\n
writ  petitions  in which  the aggrieved candidates have raised <\/p>\n
                                  25<\/span><\/p>\n
issues  relating  to  the  validity  of  the  selection  process  on <\/p>\n
several grounds including those which the State Government <\/p>\n
purports  to  be  looking  into  on  the  basis  of  the  complaints <\/p>\n
received  by  it.  We  had  in  that  view  asked  Mr.  Srivastava <\/p>\n
whether  there  was  any  need  for  the  State  Government  to <\/p>\n
undertake     a     parallel     exercise     especially     when     the <\/p>\n
examination by the High Court of all matters concerning the <\/p>\n
validity  of  selection  would  give  an  opportunity  not  only  to <\/p>\n
the  State  Government  but  also  to  the  aggrieved  candidates <\/p>\n
who  have  been  selected  to  present  their  respective  version <\/p>\n
before  it.    If  the  High  Court  on  the  basis  of  whatever <\/p>\n
material  is  placed  before  it  by  the  parties  came  to  the <\/p>\n
conclusion  that  there  was  nothing  wrong  with  the  selection <\/p>\n
process,  any  enquiry  made  by  the  State  would  be  wholly <\/p>\n
unnecessary. On the contrary, if the High Court came to the <\/p>\n
conclusion that the selection was vitiated by any illegality or <\/p>\n
irregularity,  the  State  Government  could  exercise  its  power <\/p>\n
and institute an enquiry for the removal of any member who <\/p>\n
                                   26<\/span><\/p>\n
may  have  committed  any  misconduct  by  being  a  party  to <\/p>\n
any  such  illegality  or  irregularity.    To  the  credit  of  Mr. <\/p>\n
Srivastava,  we  must  record  that  he  was  agreeable  to  the <\/p>\n
course  of  action  suggested  by  us  with  the  only  exception <\/p>\n
that  the  vigilance  case  that  stood  registered  by  the  State <\/p>\n
Vigilance  Department  is  allowed  to  go  on  to  look  into  the <\/p>\n
criminal angle if any involved in the so-called illegal selection <\/p>\n
conducted  by  the  Commission.  In  the  circumstances, <\/p>\n
therefore,  it  is  unnecessary  for  us  to  authoritatively <\/p>\n
determine the question whether the institution of enquiry by <\/p>\n
the  State  Government  was  justified  and,  if  so,  whether  the <\/p>\n
source  of  power  invoked  by  the  Government  was  indeed <\/p>\n
available  to  it.  We  are  of  the  view  that  in  the  writ  petitions <\/p>\n
filed  by  the  aggrieved  candidates  before  the  High  Court  all <\/p>\n
aspects of the matter shall be open to examination in which <\/p>\n
everyone  connected  with  the  selection  process  would  have <\/p>\n
an opportunity to place his\/her point of view.\n<\/p>\n
                                   27<\/span><\/p>\n
24.    We are told that the selected candidates may not have <\/p>\n
been  impleaded  as  parties  to  the  pending  writ  petitions <\/p>\n
although  they  are  necessary  parties  having  regard  to  the <\/p>\n
fact  that  any  order  that  the  High  Court  may  pass  regarding <\/p>\n
the  validity  of  the  selection  may  affect  them  adversely.  The <\/p>\n
selected  candidates  who  have  been  appointed  on  the  basis <\/p>\n
of  the  selection  process  and  who  have  filed  undertakings <\/p>\n
before this Court shall, therefore, be impleaded as parties to <\/p>\n
the  pending  writ  petitions  to avoid  any  technical  infirmity  in <\/p>\n
the proceedings and any consequent delay in the disposal of <\/p>\n
the matter.  A specific direction to this effect is being issued <\/p>\n
by  us  in  the  operative  part  of  this  order.  Question  No.(i)  is <\/p>\n
answered accordingly.\n<\/p>\n
Regarding Question No. (ii) <\/p>\n
25.    Uttar  Pradesh  Higher  Education  Services  Commission <\/p>\n
Act,  1980  was  introduced  to  make  the  selection  of  teachers <\/p>\n
                                   28<\/span><\/p>\n
in  Degree  and  Post-graduate  Colleges  fair,  objective  and <\/p>\n
transparent.  The  statement  of  objects  and  reasons  for  the <\/p>\n
legislation  has  referred  to  favoritism  in  the  selection  of <\/p>\n
candidates  for  such  colleges  and  elimination  of  such <\/p>\n
infirmities  from  the  selection  process  as  one  of  the <\/p>\n
objectives underlying the enactment.\n<\/p>\n
26.    In  terms  of  Section  4  of  the  Act,  the  Commission <\/p>\n
established  under  Section  3  consists  of  a  Chairman  and  not <\/p>\n
less  than  two  and  not  more  than  four  other  members  to  be <\/p>\n
appointed by the State Government satisfying the conditions <\/p>\n
of  eligibility  stipulated  under  sub-section  (2)  and  (2-a) <\/p>\n
thereof.  Section  11  enumerates  the  functions  of  the <\/p>\n
Commission  which  includes  the  preparation  of  guidelines  on <\/p>\n
matters  relating  to  the  method  of  recruitment,  conduct  of <\/p>\n
examinations  where  considered  necessary,  holding  of <\/p>\n
interviews  for  making  selection  of  candidates  to  be <\/p>\n
appointed  as  teachers  and  selection  of  experts  and <\/p>\n
appointment of  examiners for such examination. Section 12 <\/p>\n
                                29<\/span><\/p>\n
of the Act stipulates the process for appointment of teachers <\/p>\n
and inter alia provides that appointment of a teacher of any <\/p>\n
college  shall  be  made  by  the  Management  only  in <\/p>\n
accordance  with  the  provisions  of  the  Act  and  that  any <\/p>\n
appointment  made  in  contravention  thereof  shall  be  void.\n<\/p>\n
Sub-section  (2)  of  Section  12  requires  the  management  of <\/p>\n
the  colleges  to  intimate  the  existing  vacancies  and  the <\/p>\n
vacancies  likely  to  be  caused  during  the  ensuing  academic <\/p>\n
year to the Director of Education (Higher Education) in such <\/p>\n
manner as may be prescribed.  Sub-section (3) requires the <\/p>\n
Director  to  notify  to  the  Commission  in  the  manner <\/p>\n
prescribed  a  subject  wise  consolidated  list  of  vacancies <\/p>\n
intimated to him from all colleges.\n<\/p>\n
27.    The  manner  of  selection  of  persons  for  appointment  to <\/p>\n
the post of teacher of a college has also to be determined by <\/p>\n
regulations.    It  is  further  provided  that  candidate  shall  be <\/p>\n
required to indicate their order of preference for the various <\/p>\n
                                 30<\/span><\/p>\n
colleges,  vacancies  wherein  have  been  advertised.  Section <\/p>\n
13  of  the  Act  requires  the  Commission  to  hold  interviews <\/p>\n
with  or  without  written  examination  and  to  send  to  the <\/p>\n
Director  a  list  recommending  such  number  of  names  of <\/p>\n
candidates found most suitable in each subject as may be as <\/p>\n
far as practicable twenty five percent more than the number <\/p>\n
of  vacancies  in  that  subject  duly  arranged  in  the  order  of <\/p>\n
merit.  Such a list would then be valid till the receipt of new <\/p>\n
list  from  the  Commission.  Sub-section  (3)  empowers  the <\/p>\n
Director  to  intimate  to  the  Management  the  name  of  a <\/p>\n
candidate  from  the  list  referred  to  in  sub-section  (1)  for <\/p>\n
being appointed in the vacancies. Sub-section (6) requires a <\/p>\n
copy  of  such  intimation  to  be  sent  to  the  candidate <\/p>\n
concerned.\n<\/p>\n
28.    Section  14  of  the  Act enjoins  upon  the Management  to <\/p>\n
issue  an  appointment  letter  to  the  person  whose  name  has <\/p>\n
been intimated to it.  It reads:\n<\/p>\n
                                31<\/span><\/p>\n
           “14.  Duty  of  Management.-  (1)  The  management <\/p>\n
           shall  within  a  period  of  one  month  from  the  date  of <\/p>\n
           receipt  of  intimation  under  sub-section  (3)  or  sub-<\/p>\n
           section  (4)  or  sub-section  (5)  of  Section  13,  issue <\/p>\n
           appointment  letter  to  the  person  whose  name  has <\/p>\n
           been intimated.\n<\/p><\/blockquote>\n
\n           (2)  Where  the  person  referred  to  in  sub-section(1) <\/p>\n
           fails  to  join  the  post  within  the  time  allowed  in  the <\/p>\n
           appointment  letter  or  within  such  extended  time  as <\/p>\n
           the  management  may  allow  in  this  behalf,  or  where <\/p>\n
           such     person     is     otherwise     not     available     for <\/p>\n
           appointment,  the  Director,  shall  on  the  request  of <\/p>\n
           the  management  intimate  fresh  name  from  the  list <\/p>\n
           sent  by  the  Commission  under  sub-section(1)  of <\/p>\n
           Section 13 in the manner prescribed.”<\/p>\n<\/blockquote>\n
29.    Section  15  entitles  the  person  recommended  for <\/p>\n
appointment  but  not  so  appointed  by  the  management  to <\/p>\n
approach  the  Director  for  issue  of  an  appropriate  direction <\/p>\n
under  sub-section  (2).    Director  is  under  the  said  provision <\/p>\n
empowered to hold an inquiry and to pass an order requiring <\/p>\n
the  management  to  appoint  the  applicant  as  a  teacher  and <\/p>\n
to pay to him the salary from the date specified in the order.\n<\/p>\n
                                       32<\/span><\/p>\n
30.    The  Government  has  in  exercise  of  its  power  under <\/p>\n
Section  32  and  Section  31  of  the  Uttar  Pradesh  Higher <\/p>\n
Education  Services  Commission  Act,  1980  framed  what  are <\/p>\n
known      “Uttar     Pradesh      Higher        Education       Services <\/p>\n
Commission  Rules,  1981”  and  “Uttar  Pradesh  Higher <\/p>\n
Education  Services  Commission  (Procedure  for  Selection  of <\/p>\n
Teachers)      Regulations,        1983”.        While     the       Rules <\/p>\n
aforementioned        deal     with     the     constitution       of     the <\/p>\n
Commission,  disqualification  of  the  members,  investigation <\/p>\n
into  misconduct  of  members,  staff  etc.  the  Regulations <\/p>\n
referred  to  above  deal  with  matters  like  qualifications  and <\/p>\n
experience  for  appointment  as  teacher,  determination  and <\/p>\n
intimation of vacancies, procedure for selection and the like.\n<\/p>\n
31.    A careful reading of the provisions of the Act, the Rules <\/p>\n
and  the  Regulations  referred  to  above  do  not  support  the <\/p>\n
theory  propounded  by  Mr.  Srivastava  and  Mr.  Dwivedi  that <\/p>\n
the  same  by  a  fiction  of  law  create  a  cadre  of  principals <\/p>\n
                                  33<\/span><\/p>\n
either  for  the  purpose  of  applying  reservation  or  otherwise.\n<\/p>\n
As  seen  earlier  the  object  underlying  the  legislation  was <\/p>\n
limited  to  ensuring  a  combined  process  of  selection  that <\/p>\n
would  save  time  and  expense  involved  in  such  selections  if <\/p>\n
the  same  are  made  individually  for  each  college.  It  is  also <\/p>\n
intended  to  remove  the  element  of  arbitrariness  and  other <\/p>\n
malpractices  that  were  noticed  in  the  making  of  such <\/p>\n
selections  and  appointments  by  the  institutions  if  left  to <\/p>\n
themselves.  The  setting  up  of  the  Statutory  Commission, <\/p>\n
appointment  of  persons  qualified  for  the  same,  stipulating <\/p>\n
the  terms  and  conditions  of  service  of  those  appointed  and <\/p>\n
the  power  to  remove  the  members  for  misconduct  and <\/p>\n
laying  down  the  procedure  for  appointment  of  teachers  are <\/p>\n
all meant to ensure that the process of selection is free from <\/p>\n
mal-practices  that  were  generally  associated  with  such <\/p>\n
process when handled by the institutions. There is nothing in <\/p>\n
the  Act,  the  Rules  and  Regulations,  to  even  remotely, <\/p>\n
suggest  that  the  legislature  intended  to  create  a  cadre  of <\/p>\n
                                 34<\/span><\/p>\n
principals  even  where  none  existed  earlier  either  for <\/p>\n
purposes of reservation or otherwise.\n<\/p>\n
32.    The  fact  that  the  management  was  required  to <\/p>\n
communicate  the  available  vacancies  to  the  Director  of <\/p>\n
Higher  Education  or  that  an  appointment  order  must  be <\/p>\n
issued,  once  the  selection  process  is  completed  and  a <\/p>\n
candidate  is recommended for appointment also does not in <\/p>\n
our opinion have the effect of creating a cadre of principals.\n<\/p>\n
All  that  the  said  provision  is  intend  to  achieve  is  to  ensure <\/p>\n
that the vacancies are referred to the Statutory Commission <\/p>\n
to enable it to conduct the process of selection and once the <\/p>\n
process  is  completed  and  recommendations  made,  the <\/p>\n
management  do  not  refuse  appointment  to  the  candidate <\/p>\n
considered best for the post.\n<\/p>\n
33.    The  power  vested  in  the  Director  to  hold  an  enquiry <\/p>\n
and  to  issue  directions  for  payment  of  salary,  in  case  the <\/p>\n
                                  35<\/span><\/p>\n
management does not appoint, is also meant to be a step in <\/p>\n
aid  of  the  process  of  selection  and  appointment  giving <\/p>\n
primacy  to  the  opinion  of  the  Commission  regarding  the <\/p>\n
merit  and  suitability  of  the  candidate  for  such  appointment <\/p>\n
and     entitling     the     candidate     to     claim     salary     if     the <\/p>\n
appointment is unjustifiably denied to him.  Suffice it to say <\/p>\n
that  the  provisions  of  the  Act  and  the  Regulations  do  not <\/p>\n
have anything to do with creation of a cadre of Principals nor <\/p>\n
can  the  commonality  of  the  selection  process  be  confused <\/p>\n
with the caderisation of the post of Principals.\n<\/p>\n
34.     That brings us to the question whether similarity of the <\/p>\n
terms  and  conditions  of  the  employees  serving  in  the <\/p>\n
aided\/affiliated colleges and the effect the payment of salary <\/p>\n
due to such teachers is reimbursed by the State Government <\/p>\n
would  have  the  effect  of  creating  a  cadre  of  Principals.  Our <\/p>\n
answer  is  in  the  negative.  The  fact  that  the  State <\/p>\n
Government  offers  financial  aid  to  the  affiliated  colleges  in <\/p>\n
                                    36<\/span><\/p>\n
terms of payment of salary of those serving such institutions <\/p>\n
does  not  in  our  opinion  have  any  relevance  to  the  question <\/p>\n
whether  the  posts  of  Principals  in  different  colleges  under <\/p>\n
different  managements  constitute  a  cadre.  Merely  because <\/p>\n
the  Government  supports  the  institutions  which  are  in  all <\/p>\n
other  respects  autonomous  in  their  functioning,  and  are <\/p>\n
managed  by  individual  managements  cannot  by  any  stretch <\/p>\n
of  reasoning  be  taken  as  a  circumstance  constituting  the <\/p>\n
posts  in  such  colleges  into  a  single  cadre.    So  also  the  fact <\/p>\n
that  the  terms  and  conditions  of  service  of  such  teachers <\/p>\n
serving  in  different  colleges  including  Principals  are  similar <\/p>\n
on  account  of  such  colleges  being  affiliated  to  the  same <\/p>\n
university  and  being  governed  by  the  same  set  of  Statutes, <\/p>\n
Rules  and  Regulations  also  does  not  have  anything  to  do <\/p>\n
with  the  creation  or  the  existence  of  a  single  cadre <\/p>\n
comprising  such  posts.    There  is  no  gainsaying  that  such <\/p>\n
common  features  do  not  in  any  way  impinge  upon  the <\/p>\n
autonomous character of such institutions nor does payment <\/p>\n
                                   37<\/span><\/p>\n
of  salaries  and  the  similarity  of  conditions  of  service  of  the <\/p>\n
employees provide a test for holding that although serving in <\/p>\n
different  institutions  totally  independent  of  each  other  the <\/p>\n
Principals  appointed  in  such  institution  form  a  common <\/p>\n
cadre.\n<\/p>\n
35.    It  was  also  contended  on  behalf  of  the  respondents, <\/p>\n
that the power of appointment effectively rests only with the <\/p>\n
Director of Higher Education and that managements have no <\/p>\n
option but to comply with the directions in that regard.  This <\/p>\n
according  to  the  respondents  suggests  that  the  Director  of <\/p>\n
Education  is  the  real  employer  and  the  management  of  the <\/p>\n
institutions in which such appointments are made only carry <\/p>\n
out  a  ministerial  duty  that  does  not  clothe  them  with  the <\/p>\n
character of being the true employers. We see no merit even <\/p>\n
in  that  contention.    It  is  true  that  in  terms  of  Section  14  of <\/p>\n
the Act, managements are required to issue an appointment <\/p>\n
letter to the person whose name has been intimated to it but <\/p>\n
                                    38<\/span><\/p>\n
any  such  obligation  flowing  from  Section  14  does  not  make <\/p>\n
the     State  Government        the     employer     of     the     person <\/p>\n
appointed.    It  is  evident  from  a  plain  reading  of  Section  14 <\/p>\n
that  the  appointment  letter  has  to  be  issued  only  by  the <\/p>\n
management. There is no provision empowering the Director <\/p>\n
to  do  so.    This  implies  that  the  selected  candidate  is  taken <\/p>\n
into  the  employment  of  the  institution  only  when  the <\/p>\n
management of the institution issues in his favour a letter of <\/p>\n
appointment.    It  is  manifest  that  the  appointing  authority <\/p>\n
even under the scheme of the Act remains the management <\/p>\n
of  the  institutions.  The  provisions  of  the  Act  simply  make <\/p>\n
sure  that  the  management  makes  an  appointment  only  of <\/p>\n
the  persons  selected  for  the  post  and  no  more.  The <\/p>\n
authorities  under  the  Act  do  not  substitute  themselves  as <\/p>\n
the employer of the person appointed.\n<\/p>\n
36.     Last  but  not  the  least  is  the  fact  that  the  post  of <\/p>\n
Principals  in  different  aided\/affiliated  institutions  is  not <\/p>\n
                                  39<\/span><\/p>\n
transferable  or  interchangeable.  Interchangeability  of  the <\/p>\n
post and transferability of incumbents to another post in the <\/p>\n
same  cadre  are  essential  attributes  of  a  cadre,  which  is  in <\/p>\n
the  instant  case  absent.    Reference  in  this  connection  may <\/p>\n
be  made  to  the  Uttar  Pradesh  Higher  Education  Aided <\/p>\n
Colleges  Transfer  of  Teachers  Rules,  2005  framed  by  the <\/p>\n
State Government in exercise of its powers under Section 32 <\/p>\n
of the U.P. Higher Education Services Commission Act, 1980.\n<\/p>\n
Rule  4  of  the  said  Rules  is  in  this  regard  relevant  and  may <\/p>\n
be extracted:\n<\/p>\n
           “4(1)  Teachers  appointed  on  regular  basis  and <\/p>\n
           holding  lien  as  permanent  teachers  shall  be  entitled <\/p>\n
           to transfer after 10 years of service only once in the <\/p>\n
           whole service period.\n<\/p><\/blockquote>\n
\n           (2)  The  transferred  teacher  shall  become  the <\/p>\n
           employee  of  the  college  to  which  he  has  been <\/p>\n
           transferred  as  his  service  conditions  shall  be <\/p>\n
           governed      by     the     statutes     of     the     University <\/p>\n
           concerned.\n<\/p><\/blockquote>\n
\n           (3)  The  protection  of  salary  of  the  teacher  shall  be <\/p>\n
           admissible  but  the  service  rules  of  the  new <\/p>\n
           employers shall be applicable, to such teacher.<\/p>\n
                                        40<\/span><\/p>\n<\/blockquote>\n
(4) The transferred teacher, shall be the junior most <\/p>\n
teacher  of  his  cadre  working  on  the  date  of  his <\/p>\n
joining in the college concerned.\n<\/p>\n
(5)  The  teachers  shall  be  transferred  against  such <\/p>\n
posts  for  which  salary  is  paid  from  the  salary <\/p>\n
payment  account.      The  management  of  the  college <\/p>\n
before giving its consent to any teacher, shall ensure <\/p>\n
that no enquiry or any proceeding is pending against <\/p>\n
the  teacher  concerned  and  the  post  to  which  he  has <\/p>\n
been considered to be appointed by transfer shall not <\/p>\n
be advertised by the Uttar Pradesh Higher Education <\/p>\n
Services Commission.\n<\/p>\n
(6)       The     transfer      application      for     single\/mutual <\/p>\n
transfers  from  one  college  to  other  shall  be <\/p>\n
submitted  to  the  Director,  High  Education  through <\/p>\n
the  management  legally  construed  and  approved  by <\/p>\n
the University along with the written consent of both <\/p>\n
the  two  management.    The  Director,  High  Education <\/p>\n
shall       submit      his       recommendations               to       the <\/p>\n
Government  within  one  month  from  the  date  of <\/p>\n
receipt  of  the  application  within  one  month  from  the <\/p>\n
date  of  receipt  of  the  application.    The  Government <\/p>\n
shall      take     decision       either       on     the     basis      of <\/p>\n
recommendation of the Director or on its own.\n<\/p>\n
(7)  No  travel  Allowance  shall  be  admissible  to  the <\/p>\n
teachers against such transfers.\n<\/p>\n
(8)  The  Manager  of  the  former  institution  shall  send <\/p>\n
its  service  book,  Character  Rolls,  Leave  Account, <\/p>\n
G.P.F.,  Group  Insurance  account  and  last  pay <\/p>\n
certificate counter signed by the District Inspector of <\/p>\n
Schools\/Regional  Higher  Education  Officer,  as  the <\/p>\n
case  may  be,  to  the  Regional  Higher  Education <\/p>\n
Officer  of  the  Region  concerned  and  to  the  Director, <\/p>\n
Higher Education.”\n<\/p>\n
                                41<\/span><\/p>\n
37.    It  is  evident  from  the  above  that  there  is  no  power <\/p>\n
vested  in  the  State  Government  or  any  other  authority  for <\/p>\n
that  matter  to  transfer  the  Principal  from  one  institution  to <\/p>\n
another  institution  as  it  may  do  for  instance  in  the  case  of <\/p>\n
Government  run  institutions  where  Principal  from  one <\/p>\n
government       college     may      be     transferred     to     another <\/p>\n
government college in the same cadre.  Sub-rule (1) of Rule <\/p>\n
4 (supra) does not talk about the power of transfer vested in <\/p>\n
any  authority.  It  talks  about  entitlement  of  a  permanent <\/p>\n
teacher to be transferred after 10 years of service only once <\/p>\n
in  the  whole  service  period.    Sub-rule  (2)  provides  that  the <\/p>\n
transferred teacher shall become an employee of the college <\/p>\n
to which he has been transferred. More importantly sub-rule <\/p>\n
(4)  makes  the  transferred  teacher  go  to  the  bottom  of  the <\/p>\n
cadre  to  which  he  may  be  transferred.  That  provision  may <\/p>\n
not  make  much  sense  when  it  comes  to  transfer  of  a <\/p>\n
Principal  from  one  college  to  another  but  it  certainly  shows <\/p>\n
that  even  when  there  are  plurality  of  posts  in  the  cadre <\/p>\n
                                     42<\/span><\/p>\n
lower than the principal the person transferred from another <\/p>\n
institution would figure at the bottom of the said cadre. This <\/p>\n
again  is  a  circumstance  which  negates  the  theory  of <\/p>\n
Principals being a part of the same cadre.\n<\/p>\n
38.    Similarly  in  terms  of  sub-rule  (5)  the  management  of <\/p>\n
the college has to ensure that no enquiry or any proceeding <\/p>\n
is  pending  against  the  teacher  concerned  before  giving  its <\/p>\n
consent for the transfer of the teacher.  This means that the <\/p>\n
institutions  may  refuse  to  relieve  a  teacher  even  when  he <\/p>\n
may  like  to  be  transferred,  should  an  enquiry  be  pending <\/p>\n
against him.  Sub-rule (6) envisages that the transfer can be <\/p>\n
made only by mutual consent.\n<\/p>\n
39.    It is abundantly clear from the above that the attribute <\/p>\n
of  interchangeability  and  transferability  is  missing  in  the <\/p>\n
case  of  Principals  –  in  much  the  same  measure  as  in  the <\/p>\n
case of teachers, in the lower cadre. We have, therefore, no <\/p>\n
                                 43<\/span><\/p>\n
hesitation  in  holding  that  there  is  no  cadre  of  Principals <\/p>\n
serving  in  different  aided  and  affiliated  institutions  and  that <\/p>\n
the  Principal’s  post  is  a  solitary  post  in  an  institution.\n<\/p>\n
Reservation  of  such  a  post  is  clearly  impermissible  not  only <\/p>\n
because  the  Uttar  Pradesh  Public  Services  (Reservation  for <\/p>\n
Scheduled  Castes,  Scheduled  Tribes  and  other  Backward <\/p>\n
Classes)  Act,  1994  provides  for  reservation  based  on  the <\/p>\n
`cadre  strength’  in  aided  institutions  but  also  because  such <\/p>\n
strength being limited to only one post in the cadre is legally <\/p>\n
not     amenable      to     reservations     in     the     light     of     the <\/p>\n
pronouncement  of  this  Court  to  which  we  shall  presently <\/p>\n
refer.\n<\/p>\n
40.     We  may  before  referring  to  the  decisions  of  this  Court <\/p>\n
on  the  question  whether  a  single  post  can  be  reserved, <\/p>\n
notice  the  decision  of  this  Court  in  Balbir  Kaur’s  case <\/p>\n
(supra)  relied  upon  by  Mr.  Patwalia.  That  was  also  a  case <\/p>\n
from  the  State  of  U.P.  It  related  to  appointment  of  a <\/p>\n
                                    44<\/span><\/p>\n
Principal  under  the  U.P.  Secondary  Education  Services <\/p>\n
Commission  and  Selection  Boards  Act,  1982.  One  of  the <\/p>\n
questions that fell for consideration was whether the post of <\/p>\n
Principal  in  institutions  offering  secondary  education  was <\/p>\n
amenable  to  reservation  having  regard  to  the  Reservation <\/p>\n
Act  of  1994  referred  above.  This  Court  answered  the <\/p>\n
question in the negative and gave two reasons in support of <\/p>\n
that  conclusion.    Firstly,  the  Court  found  that  Section  10  of <\/p>\n
the  U.P.  Secondary  Education  Services  Commission  and <\/p>\n
Selection  Boards  Act,  1982  expressly  excluded  the  post  of <\/p>\n
Principal from the purview of the Reservation Act of the year <\/p>\n
1994. Secondly and more importantly the post of Principal in <\/p>\n
an  educational  institution  being  a  single  post  in  the  cadre <\/p>\n
such  a  post  was  held  not  amenable  to  reservation  for  any <\/p>\n
such  reservation  would  amount  to  making  a  100% <\/p>\n
reservation which was found impermissible under Articles 15 <\/p>\n
and 16 of the Constitution.  Relying upon the decision of this <\/p>\n
Court in Dr. Chakradhar Paswan v. State of Bihar & Ors.<\/a>\n<\/p>\n
                                  45<\/span><\/p>\n
(1988)  2  SCC  214  and  Post  Graduate  Institute  of <\/p>\n
Medical  Education  &  Research,  Chandigarh  v.  Faculty <\/p>\n
Association  &  Ors.<\/a>  (1998)  4  SCC  1,  this  Court  held  that <\/p>\n
any reservation  qua a single post cadre either directly  or by <\/p>\n
the device of rotation of roster was not valid.  The Court also <\/p>\n
held that since the Reservation Act, 1994 did not provide for <\/p>\n
clubbing  of  all  the  educational  institutions  in  the  State  of <\/p>\n
U.P.  for  the  purpose  of  reservation  there  is  no  question  of <\/p>\n
clubbing  the  post  of  Principals  in  all  the  educational <\/p>\n
institutions  for  the  purpose  of  applying  the  principles  of <\/p>\n
reservation  under  the  1994  Act.  The  following  passage  is  in <\/p>\n
this regard apposite:\n<\/p>\n
           “it was held that there cannot be any reservation in a <\/p>\n
           single  post  cadre  and  the  decisions  to  the  contrary, <\/p>\n
           upholding  reservation  in  single  post  cadre  either <\/p>\n
           directly  or  by  device  of  rotation  of  roster  were  not <\/p>\n
           approved.  Besides,  as  noted  above,  neither  the <\/p>\n
           principal  Act,  nor  the  Rules  made  thereunder  or  the <\/p>\n
           1994  Act  provide  for  clubbing  of  all  educational <\/p>\n
           institutions  in  the  State  of  U.P.  for  the  purpose  of <\/p>\n
           reservation  and,  therefore,  there  is  no  question  of <\/p>\n
           clubbing  the  post  of  Principals  in  all  the  educational <\/p>\n
           institutions  for  the  purpose  of  applying  the  principle <\/p>\n
           of reservation under the 1994 Act.”\n<\/p><\/blockquote>\n
                                    46<\/span><\/p>\n<\/blockquote>\n
41.    It  was  argued  on  behalf  of  the  respondents  that  while <\/p>\n
Section  10  of  the  U.P.  Secondary  Education  Services <\/p>\n
Commission  and  Selection  Boards  Act,  1982  specifically <\/p>\n
excluded the post of Head of the institution from the process <\/p>\n
of  determination  of  number  of  vacancies  to  be  reserved  for <\/p>\n
candidates  belonging  to  Scheduled  Caste,  Scheduled  Tribes <\/p>\n
and other Backward Classes, no such exclusion was made in <\/p>\n
the  case  of  the  1980  Act  that  regulates  selection  for <\/p>\n
appointment  to  the  Degree  and  Post-degree  Colleges.    This <\/p>\n
according  to  learned  counsel  for  the  appellant  implied  that <\/p>\n
wherever  the  legislature  intended  that  the  post  of  Principal <\/p>\n
should  be  excluded  from  reservation  it  specifically  provided <\/p>\n
so  and  in  case  such  exclusion  was  not  intended  no  such <\/p>\n
provision  was  made.  The  decision  in  Balbir  Kaur’s  case <\/p>\n
(supra)  argued  learned  counsel  for  the  appellants  was  on <\/p>\n
that basis distinguishable.\n<\/p>\n
                                 47<\/span><\/p>\n
42.    We  do  not  think  so.    It  is  true  that  Section  10  of  the <\/p>\n
1982  Act  which  stipulates  the  procedure  for  selection  of <\/p>\n
candidates  for  direct  recruitment  requires  determination  of <\/p>\n
the vacancies to be reserved for candidates belonging to SC, <\/p>\n
ST and Backward Classes and reference of such vacancies to <\/p>\n
be  made  to  the  Commission  established  under  the  said  Act <\/p>\n
but  excluding  the  post  of  Principal\/Head  of  the  institution <\/p>\n
from  the  said  determination  but  it  is  equally  true  that <\/p>\n
Section  12  of  1982  Act  with  which  we  are  concerned  does <\/p>\n
not require any exercise to be undertaken by the Institutions <\/p>\n
for  determining  the  number  of  vacancies  to  be  reserved  for <\/p>\n
candidates  belonging  to  reserved  categories.  There  is <\/p>\n
consequently       no     provision       by     which     the     post     of <\/p>\n
Principal\/Head  of  the  institution  is  excluded  from  any  such <\/p>\n
process.  The  two  provisions  in  that  sense  are  not <\/p>\n
comparable.  In  one  case  the  number  of  vacancies  to  be <\/p>\n
reserved  is  required  to  be  determined  while  in  the  other  no <\/p>\n
                                    48<\/span><\/p>\n
such  requirement  has  been  stipulated.  Exclusion  of  the <\/p>\n
Principal’s post from such determination under the 1982 Act <\/p>\n
cannot,  therefore,  be  overemphasized  in  the  absence  of  a <\/p>\n
provision     requiring     a     determination     of     the     reserved <\/p>\n
vacancies under Section 12 of the 1980 Act.\n<\/p>\n
43.    That apart we repeatedly asked learned counsel for the <\/p>\n
appellant-State  and  Mr.  Dwivedi,  learned  counsel  appearing <\/p>\n
for  the  managements  whether  there  was  any  rationale  for <\/p>\n
giving a differential treatment to Principals in Degree & Post-\n<\/p>\n
Graduate  colleges  in  the  matter  of  reservation,  keeping  in <\/p>\n
view  the  fact  that  Principals  in  Secondary  Educational <\/p>\n
Institutions  were  not  subject  to  any  such  reservation.  We <\/p>\n
neither  expected  nor  got  any  explanation  from  the  learned <\/p>\n
counsel.  The reason was obvious.  If the posts of Principals <\/p>\n
in  the  secondary  school  which  are  much  larger  in  number <\/p>\n
than  the  Degree  and  Post-Graduate  colleges  are  not <\/p>\n
amenable to reservation and have been specifically excluded <\/p>\n
                                    49<\/span><\/p>\n
from  that  process,  there  is  no  earthly  reason  why  posts  of <\/p>\n
Principals  in  Degree  and  Post-Graduate  colleges  which  are <\/p>\n
relatively  fewer  in  number  available  in  colleges  imparting <\/p>\n
higher  education  ought  to be  subjected  to  such  reservation.\n<\/p>\n
What  is  true  in  the  case  of  secondary  schools  would, <\/p>\n
therefore,  be  true  in  the  case  of  Degree  and  Post-Graduate <\/p>\n
colleges  also.  Any  interpretation  that  may  render  the  legal <\/p>\n
position  anomalous  or  absurd  shall,  therefore,  have  to  be <\/p>\n
eschewed.\n<\/p>\n
44.    The other reason why we have no difficulty in rejecting <\/p>\n
the contention urged by appellants is the fact that this Court <\/p>\n
has  in  Balbir  Kaur’s case  (supra)  specifically  examined  the <\/p>\n
question  whether  the  post  of  Principals  in  secondary <\/p>\n
institutions can be reserved independent of the provision  by <\/p>\n
which  such  post  are  excluded  from  reservation.    This  Court <\/p>\n
held  that  since  the  posts  of  Principals  are  single  post  such <\/p>\n
reservation  is  not  permissible  qua  them.  There  is  no  way <\/p>\n
                                 50<\/span><\/p>\n
that view can be ignored or wished away by the State or the <\/p>\n
managements. Whether or not a single post can be reserved <\/p>\n
is  even  otherwise  fairly  well  settled  by  the  decisions  of  this <\/p>\n
Court to which we need refer only briefly.\n<\/p>\n
45.    The decision of this Court in Indra Sawhney and Ors.\n<\/p>\n
v.  Union  of  India  and  Ors.,  1992  Supp.(3)  SCC  217, <\/p>\n
continues  to  be  the  locus  classicus  on  the  subject  of <\/p>\n
reservation.  This  Court  in  that  case  held  that  reservation <\/p>\n
under Articles 14, 15 and 16 must be applied in a manner so <\/p>\n
as to strike a balance between opportunities for the reserved <\/p>\n
classes  on  the  one  hand  and  other  members  of  the <\/p>\n
community  on  the  other.  Such  reservation  cannot  exceed <\/p>\n
50% in order to be constitutionally valid.\n<\/p>\n
46.    In  Chakradhan  Paswan’s  case  (supra)  this  Court <\/p>\n
relying upon the decision in Arati Ray Choudhury v. Union <\/p>\n
of India<\/a> 1974 (1) SCC 87, M.R. Balaji v. State of Mysore<\/a> <\/p>\n
                                  51<\/span><\/p>\n
AIR 1963 SC 649 and T. Devadasan v. Union of India AIR<\/a> <\/p>\n
1964  SC  179  held  that  separate  posts  in  different <\/p>\n
institutions  cannot  be  clubbed  together  for  the  purpose  of <\/p>\n
reservation  and  that  reservations  may  be  made  only  where <\/p>\n
there are more than  one posts. Reservation  of  only  a single <\/p>\n
post  in  the  cadre  would  amount  to  100%  reservation  and <\/p>\n
thereby violate Articles 14(1) and 16(4) of the Constitution.\n<\/p>\n
In  Bhide  Girls  Education  Society  v.  Education  Officer, <\/p>\n
Zila  Parishad,  Nagpur  and  Ors.,  1993  Supp  (3)  SCC  527 <\/p>\n
this  Court  held  that  a  single  post  of  Headmistress  of  an <\/p>\n
institution could not be reserved as the same would amount <\/p>\n
to making a 100% reservation.\n<\/p>\n
47.    The  controversy  was  authoritatively  set  at  rest  by  the <\/p>\n
Constitution  Bench  decision  of  this  Court  in  Post-graduate <\/p>\n
Institute of Medical Education & Research, Chandigarh <\/p>\n
v.  Faculty  Association  and  Ors.<\/a>   (1998)  4  SCC  1     case <\/p>\n
(supra)  where  this  Court  overruled  the  decisions  of  this <\/p>\n
                                 52<\/span><\/p>\n
Court in Union of India and Anr. v. Madhav s\/o Gajanan <\/p>\n
Chaubal  and  Anr.  (1997)  2  SCC  332,  Union  of  India  v.\n<\/p>\n
Brij  Lal  Thakur  (1997)  4  SCC  278  and  State  of  Bihar  v.\n<\/p>\n
Bageshwari Prasad 1995 Supp (1) SCC 432 and observed:\n<\/p>\n
          “34. In a single post cadre, reservation at any point <\/p>\n
          of  time  on  account  of  rotation  of  roster  is  bound  to <\/p>\n
          bring  about  a  situation  where  such  a  single  post  in <\/p>\n
          the  cadre  will  be  kept  reserved  exclusively  for  the <\/p>\n
          members  of  the  backward  classes  and  in  total <\/p>\n
          exclusion of the general members of the public. Such <\/p>\n
          total exclusion of general members of the public and <\/p>\n
          cent per cent reservation for the backward classes is <\/p>\n
          not  permissible  within  the  constitutional  framework. <\/p>\n
          The  decisions  of  this  Court  to  this  effect  over  the <\/p>\n
          decades have been consistent.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
          35. Hence, until there is plurality of posts in a cadre, <\/p>\n
          the question of reservation will not arise because any <\/p>\n
          attempt of reservation by whatever means and even <\/p>\n
          with  the  device  of  rotation  of  roster  in  a  single  post <\/p>\n
          cadre  is  bound  to  create  100%  reservation  of  such <\/p>\n
          post     whenever      such     reservation      is     to     be <\/p>\n
          implemented.  The  device  of  rotation  of  roster  in <\/p>\n
          respect  of  single  post  cadre  will  only  mean  that  on <\/p>\n
          some  occasions  there  will  be  complete  reservation <\/p>\n
          and  the  appointment  to  such  post  is  kept  out  of <\/p>\n
          bounds  to  the  members  of  a  large  segment  of  the <\/p>\n
          community who do not belong to any reserved class, <\/p>\n
          but  on  some  other  occasions  the  post  will  be <\/p>\n
          available  for  open  competition  when  in  fact  on  all <\/p>\n
          such occasions, a single post cadre should have been <\/p>\n
          filled only by open competition amongst all segments <\/p>\n
          of the society.”\n<\/p><\/blockquote>\n
\n                                    53<\/span><\/p>\n<\/blockquote>\n
48.    In  the  light  of  the  above  decision,  we  have  no <\/p>\n
hesitation  in  holding  that  the  post  of  principals  in  each  one <\/p>\n
of  the  aided\/affiliated  institution  being  a  single  post  in  the <\/p>\n
cadre is not amenable to any reservation. Question No.(ii) is <\/p>\n
accordingly answered in the affirmative.\n<\/p>\n
49.    Mr.      Patwalia,       learned      counsel     for      the     selected <\/p>\n
candidates then argued that if the High Court was correct in <\/p>\n
holding        that     the     provisions     of     1994       Act     regulating <\/p>\n
reservation of vacancy did not apply to the post of Principals <\/p>\n
in  different  affiliated\/aided  Degree  and  Post-Graduate <\/p>\n
colleges,  there  was  no  reason  why  the  undertakings <\/p>\n
furnished  by  the  selected  candidates  to  this  Court  as  a  step <\/p>\n
in  aid  of  their  appointments  should  not  be  discharged  and <\/p>\n
the  selected  candidates  allowed  to  assume  office  on  a <\/p>\n
substantive  basis  subject  to  any  direction  which  the <\/p>\n
competent  Court  may  issue  as  regards  the  validity  of  the <\/p>\n
                                       54<\/span><\/p>\n
selection  process  and  the  consequent  appointments.    He <\/p>\n
urged  the  State  Government  was  not  releasing  in  favour  of <\/p>\n
the     appointed     candidates      the     full     benefits     of     such <\/p>\n
appointments  in the form  of increments  and allowances  etc. <\/p>\n
only  because  the  appointments  made  were  subject  to  the <\/p>\n
outcome of these proceedings and the undertaking furnished <\/p>\n
by  the  candidates.  Alternatively,  he  urged  that  even  if  the <\/p>\n
appointments  made  by  the  State  pursuant  to  the  directions <\/p>\n
of  this  Court  were  to  remain  incohate  and  subject  to  the <\/p>\n
outcome  of  the  writ  petitions  before  the  High  Court  there <\/p>\n
was no reason why dues legitimately payable to the selected <\/p>\n
candidates  should  not  be  directed  to  be  released  on  such <\/p>\n
conditions as the Court deem fit and proper.\n<\/p>\n
50.     On behalf of the State and the management it was per <\/p>\n
contra argued that the release of any further benefits to the <\/p>\n
selected  candidates  could  await  the  disposal  of  the  writ <\/p>\n
                                     55<\/span><\/p>\n
petitions pending before the High Court which disposal could <\/p>\n
be expedited in the interest of all concerned.\n<\/p>\n
51.    The  view  taken  by  the  High  Court  in  so  far  as  the <\/p>\n
applicability  of  reservation  to  single  posts  of  Principal  in  the <\/p>\n
affiliated  and  aided  institutions  has  been  affirmed  by  us <\/p>\n
while  answering  question  No.(ii)  above.  To  that  extent  the <\/p>\n
controversy  is  being  given  a  quietus.  All  the  same  the <\/p>\n
question  whether  there  were  any  malpractices  and  if  so <\/p>\n
whether the selection process could be nullified by the State <\/p>\n
Government  in  exercise  of  its  power  under  Section  6  of  the <\/p>\n
1980  Act  or  Article  154  of  the  Constitution  has  been  left <\/p>\n
open  by  us  in  the  light  of  the  fact  that  the  question <\/p>\n
regarding  legality  of  the  selection  process  is  pending <\/p>\n
adjudication  before  the  High  Court  where  all  parties <\/p>\n
concerned  would  have  an  opportunity  to  present  their <\/p>\n
respective cases. A parallel enquiry at the Government level <\/p>\n
into those questions has been held by us to be unnecessary.\n<\/p>\n
                                   56<\/span><\/p>\n
There  is,  therefore,  no  final  adjudication  of  the  dispute <\/p>\n
between the parties in so  far as the validity  of  the selection <\/p>\n
process  is  concerned.  Such  being  the  case  we  do  not <\/p>\n
consider  it  necessary  to  relieve  the  appointed  candidates  of <\/p>\n
the  obligations  flowing  from  the  undertaking  given  by  them <\/p>\n
subject  to  which  only  the  appointments  were  allowed  to  be <\/p>\n
made.  This  may  not,  however,  mean  that  the  appointed <\/p>\n
candidates  will  not  be  entitled  to  claim  full  benefit  of  the <\/p>\n
post  admissible  to  the  incumbent  to  which  they  have  been <\/p>\n
appointed  during  the  period  such  appointments  continue  to <\/p>\n
remain     in     force.     The     directions     under     which     the <\/p>\n
appointments  were  allowed  to  be  made  also  did  not  permit <\/p>\n
the State to withhold benefits legitimately flowing from such <\/p>\n
appointments.  If any additional financial benefits by way of <\/p>\n
allowances become payable to the appointed candidates the <\/p>\n
same  must  be  allowed  to  be  drawn  by  them.  Enjoyment  of <\/p>\n
all  such  benefits  would  also  remain  subject  to  the <\/p>\n
undertakings  which  the  appointed  candidates  have  filed <\/p>\n
                                     57<\/span><\/p>\n
before this Court.\n<\/p>\n
52.    An  apprehension  was  expressed  before  us  that  the <\/p>\n
matter may continue languishing in the High Court for a long <\/p>\n
time  especially  because  of  the  failure  of  the  writ  petitioners <\/p>\n
before  the High  Court  in impleading the selected  candidates <\/p>\n
as  parties.    It  was  submitted  that  orders  for  addition  of  the <\/p>\n
selected  candidates  could  be  passed  by  this  Court  to  allay <\/p>\n
any  such  apprehensions.   We see no  impediment in  passing <\/p>\n
appropriate  orders  in  that  regard,  especially  when,  none  of <\/p>\n
the  parties  before  us  were  opposed  to  any  such  orders <\/p>\n
impleading  the  selected  candidates  as  party  respondents  to <\/p>\n
the pending writ petitions before the High Court.\n<\/p>\n
53.    In  the  result  we  dispose  of  these  appeals  with  the <\/p>\n
following directions:\n<\/p>\n
                                  58<\/span><\/p>\n
(1)    The  impugned  orders  passed  by  the  High  Court  to  the <\/p>\n
extent  the  same  hold  that  the  posts  of  Principals  in <\/p>\n
affiliated\/aided colleges are not amenable to reservation are <\/p>\n
affirmed.\n<\/p>\n
(2)    Order dated 12th June, 2007 issued by the Government <\/p>\n
appointing  the  Divisional  Commissioner,  Allahabad  as  an <\/p>\n
Enquiry  Officer  to  hold  an  enquiry  into  the  validity  of <\/p>\n
selection  process  and  the  report  submitted  by  the  said <\/p>\n
Enquiry Officer shall stand quashed and the order passed by <\/p>\n
the High Court to that effect affirmed.\n<\/p>\n
(3)    The  question  whether  the  Government  was  competent <\/p>\n
to direct an enquiry into the validity of the selection process <\/p>\n
under  Section  6  of  the  Uttar  Pradesh  Higher  Education <\/p>\n
Services  Commission  Act,  1980  or  under  Article  154  of  the <\/p>\n
Constitution  is  left  open  in  view  of  the  pendency  of  the  writ <\/p>\n
petitions  challenging  the  validity  of  the  selection  process <\/p>\n
before the High Court.\n<\/p>\n
                                  59<\/span><\/p>\n
(4)    The  High  Court  shall  in  the  writ  petitions  pending <\/p>\n
before  it  be  free  to  examine  all  issues  regarding  the <\/p>\n
selection  process  in  question  including  the  validity  of  the <\/p>\n
procedure  followed  in  making  the  same.    Depending  upon <\/p>\n
whether  the  High  Court  finds  the  selection  process  to  be <\/p>\n
valid  or  otherwise  the  Government  shall  have  the  liberty  to <\/p>\n
institute  an  enquiry  against  the  members  of  the  State <\/p>\n
Services  Selection  Commission  if  such  enquiry  is  otherwise <\/p>\n
permitted  under  law.  In  case,  however,  the  High  Court <\/p>\n
upholds  the  selection  process  and  dismisses  the  writ <\/p>\n
petitions  there  shall  be  no  room  left  for  the  State <\/p>\n
Government  to  embark  upon  any  further  enquiry  into  the <\/p>\n
matter on the administrative side. The aggrieved party shall <\/p>\n
be  free  to  challenge  the  view  taken  by  the  High  Court  in <\/p>\n
appropriate proceedings in accordance with law.\n<\/p>\n
                                60<\/span><\/p>\n
(5)    The selected candidates who have filed undertakings in <\/p>\n
this Court and have been appointed to the posts of Principals <\/p>\n
pursuant to the orders of this Court shall stand impleaded as <\/p>\n
parties  to  each  of  the  writ  petitions  pending  in  the  High <\/p>\n
Court  and  challenging  the  selection  process.    The  selected <\/p>\n
candidates  shall  based  on  this  direction  appear  before  the <\/p>\n
High  Court  on  2.5.2011  without  any  further  notice  in  each <\/p>\n
one  of the petitions  and  file  their  counter-affidavits.   Failure <\/p>\n
on  the  part  of  the  candidates  to  do  the  needful  shall  be <\/p>\n
suitably  dealt  with  by  the  High  Court  who  shall  be  free  to <\/p>\n
proceed ex-parte, against those who fail to comply with this <\/p>\n
direction.\n<\/p>\n
(6)    In  order  to  expedite  the  hearing  of  the  case  the  Chief <\/p>\n
Justice  of  the  High  Court  of  Allahabad  is  requested  to  place <\/p>\n
the  writ  petitions  before  a  Division  Bench  of  the  High  Court <\/p>\n
for  an  early  hearing  and  disposal  as  far  as  possible  before <\/p>\n
the 1st December, 2011.\n<\/p>\n
                                  61<\/span><\/p>\n
(7)     Pending disposal of the writ petitions by the High Court <\/p>\n
the selected candidates shall be entitled to receive their pay <\/p>\n
and      allowances     including     increments     etc.     otherwise <\/p>\n
admissible  to  the  post  of  Principal  as  if  the  appointments <\/p>\n
were  made  on  a  valid  and  substantive  basis.  Such  benefits <\/p>\n
flowing  from  the  same  shall,  however,  be  subject  to  the <\/p>\n
outcome  of  the  writ  petitions  before  the  High  Court  and  the <\/p>\n
undertakings  furnished  by  the  appointed  candidates  to  this <\/p>\n
Court  which  undertaking  shall  be  deemed  to  have  been <\/p>\n
continued till such time the writ petitions are finally disposed <\/p>\n
of.\n<\/p>\n
54.     The parties shall bear their own costs.\n<\/p>\n
                                          ……………………………..J.\n<\/p>\n
                                          (V.S. SIRPURKAR)<\/p>\n
                                   62<\/span><\/p>\n
                       ……………………………..J.\n<\/p>\n
                       (T.S. THAKUR)<\/p>\n
New Delhi<\/p>\n
March 8, 2011<\/p>\n
                 63<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P.& Ors vs Bharat Singh & Ors on 8 March, 2011 Bench: V.S. Sirpurkar, T.S. Thakur 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-239202","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P.& Ors vs Bharat Singh & Ors on 8 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-bharat-singh-ors-on-8-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P.& Ors vs Bharat Singh & Ors on 8 March, 2011 - 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