Supreme Court of India
STATE OF U.P. AND ORS.versusBHARAT SINGH AND ORS.
- Citation
- 2011 INSC 190
- Decided
- 8 March 2011
- Disposal
- Disposed off
- Bench
- V S SIRPURKAR
Holding
The post of principal in each aided/affiliated college is a solitary, non‑transferable post not constituting a cadre and thus not subject to reservation; consequently, the High Court was justified in quashing the state’s enquiry officer appointment as a duplicative exercise.
Summary
The Supreme Court examined two questions arising from the selection of principals for aided/affiliated degree and postgraduate colleges in Uttar Pradesh. First, it held that the High Court was correct in quashing the appointment of a Divisional Commissioner as an enquiry officer because a parallel state inquiry would duplicate the pending judicial review of the selection process. Second, the Court ruled that the post of principal in each college is a solitary post, not part of a transferable cadre, and therefore cannot be subject to reservation under the Uttar Pradesh Public Services (Reservation) Act, 1994. The Court affirmed the High Court's order that the posts are non‑reserved, quashed the state’s enquiry order, and left open the question of the State’s power to inquire pending the High Court’s final decision. It also directed that the selected candidates be impleaded in the pending writ petitions and allowed them to draw salary and allowances subject to their undertakings.
Issues considered
- Whether the High Court was justified in quashing the appointment of the enquiry officer appointed by the State Government to investigate alleged irregularities in the selection of principals.
- Whether the posts of principals in different aided/affiliated degree and postgraduate institutions constitute a single cadre and are therefore amenable to reservation under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994.
Legislation cited
- Constitution of Indias. Article 14, s. Article 15, s. Article 154, s. Article 16
- Uttar Pradesh Higher Education Services Commission Act, 1980s. 11, s. 12, s. 13, s. 14, s. 15, s. 31, s. 32, s. 4, s. 6
- Uttar Pradesh Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983
- Uttar Pradesh Higher Education Services Commission Rules, 1981
- Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994
- Uttar Pradesh State Universities Act, 1973s. 60-8, s. 60-A, s. 60-D
Subjects
reservationcadreprincipalhigher educationUttar Pradeshselection processenquiryArticle 154public service reservationsingle post
Judgment
• [2011) 4 S.C.R. 525
STATE OF U.P. AND ORS. A
v.
BHARAT SINGH AND ORS.
(Civil Appeal No. 2351 of 2011)
MARCH 8, 2011
B
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]
Uttar Pradesh Higher Education Services Commission
Act, 1980:
c
Purpose of the Act - Discussed.
Post of Principal in affiliated/aided Degree and Post-
Graduate institutions - Whether amenable to reservation -
Held: The post of principal in aided/affiliated institution being D
a single post in the cadre is not amenable to any reservation
- Interchangeability of the post and transferability of
incumbents to another post in the same cadre are essential
attributes of a cadre, which is absent in the case of post of
Principal - There is no power vested in the State Government
or any other authority for that matter to transfer the Principal E
from one institution to another institution as it may do for
instance in the case of Government run institutions where
Principal from one government college may be transferred to
another government college in the same cadre - There is no
cadre of Principals serving in different aided and affiliated F
institutions and that Principal's post is a solitary post -
Reservation of such a post is clearly impermissible not only
because the Reservation Act of 1994 provides for reservation
based on the 'cadre strength' in aided institutions but also
because such strength being limited to only one post in the G
cadre is legally not amenable to reservation - Uttar Pradesh
Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and other Backward Classes) Act, 1994 -
525 H
526 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A Service law - Reservation - Education/Educational
institutions.
Selection process - Complaints received by State
Government against the selection process alleging large scale
irregularities and ma/practices of serious nature - State
8
Government ordered appointment of Divisional Commissioner
as an inquiry officer and withholding of appointment orders in
favour of selected candidates - Challenged by selected
candidates before High Court by way of writ petitions - High
C court quashing the appointment of the enquiry officer and
issuing a mandamus to the Selection Commission to make
placements in favour of selected candidates- Held: High Court
was justified in quashing the appointment of the enquiry officer
- High Court had given an opportunity to the counsel of State
to take instructions whether the Government intended to
D institute any further enquiry in the matter - Despite the
opportunity, the counsel did not report any instructions in the
matter- High Court, therefore, proceeded on the basis that the
Government did not intend to conduct any further enquiry into
the matter and accordingly quashed the order appointing the
E enquiry officer as a/so the instructir.'is :ssued by hi,--;; .-:yc:.inst
the making of the appointments - Question whether there were
any malpractices and if so whether the selection process could
be nullified by the State Government in exercise of its power
u/s. 6 of the 1980 Act or Article 154 of the Constitution left open
F in the light of the fact that the question regarding legality of the
selection process is pending adjudication before the High
Court where all parties concerned would have an opportunity
to present their respective cases - Selected candidates who
were appointed on the basis of the selection process and who
G had filed undertakings before Supreme Court shall, therefore,
be impleaded as parties to the pending writ petitions to avoid
any technical infirmity in the proceedings and any consequent
delay in the disposal of the matter - In such circumstances, a
parallel enquiry at the Government level info those questions
H
•STATE OF U.P. AND ORS. v. BHARAT SINGH AND 527
ORS.
would be unnecessary - Directions passed - Constitution of A
India, 1950 - Article 154.
A consolidated advertisement was issued by U.P.
Higher Education Service Commission inviting
applications for the post of Principals in aided/affiliated
8
Degree and Post-Graduate colleges. The validity of
advertisement was challenged in large number of writ
petitions on the ground that the post of Principals being
single posts in the cadre was not amenable to reservation.
By interim order, the High Court directed the Commission C
that the post of Principal should to be treated as non-
reserved posts. The Commission issued a fresh
advertisement inviting applications for 140 posts of
Principals in Degree and Post-Graduate colleges. The
entire selection process was subject to the outcome of the
writ petitions pending before the High Court. A select list D
was published in terms of Notification dated 15th May 2007.
With the publication of select list, the writ petitions pending
before the High Court were dismissed as infructuous. The
High Court while doing so noted the submission made on
behalf of the Commission that there was no cadre of E
Principals in the Post Graduate colleges and the posts of
Principals were not interchangeable or transferable.
Meanwhile, the appellant-State of U.P. received
number of complaints against the said selection alleging F
large scale irregularities and malpractices of serious
nature in the selection procedure and demanding an
enquiry into the same. On 12th June, 2007, the State
Government appointed the Divisional Commissioner to.
hold an enquiry into the allegations and to submit a report.· G
The Divisional Commissioner in turn asked for certain
information from the Service Commission in connection
with the inquiry with a copy to the Director of Education
requesting him to show restraint in issuing the placement
H
528 SUPREME COURT REPORTS •
[2011) 4 S.C.R.
A orders in termr of the recommendations received from the
Service Commission. Aggrieved by the said
communicatior, the selected candidates filed writ petitions
before the High Court challenging the notification of
appointment of the Divisional Commissioner as an inq ·iry
B officer and the letter written by him to the Director of
Education asking him to withhold the issue of placement
orders in favour of the selected candidates. While the writ
petitions were still pending disposal, the Divisional
Commissioner submitted a preliminary inquiry report in
C which he recorded prima facie conclusion that a series of
irregularities and malpractices were committed in the
selection process.
The High Court passed the interim order staying the
notification of appointment of the Divisional
D Commissioner and directing the respondent to issue the
appointment letters to the selected candidates. The State
filed special leave petition before the Supreme Court
against the interim order. The Supreme Court stayed the
interim direction in so far it related to issuance of
E appointment letters to the selected candidates.
The Hi~h court ultimately allowed the writ petitions
quashing the two orders and issued a mandamus to the
Selection Commission to make placements in favour of the
F selected candidates. The instant appeals were filed
challenging the order of .ne High Court.
An interim order dated 20th November, 2008 was
passed by the Supreme Court directing the appellant-
State to appoint the selected candidates-respondents as
G Principals of various aided non-governmental degree
colleges and post graduate colleges subject to decision
of the appeals provided the respondents filed
undertakings to the effect that in case they lose the battle
they would stand reverted to the posts of readers and the
H difference of salary drawn by them as Principals would be
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS.
529
paid back to the State. The State has pursuant to the said A
directions appointed the selected candidates upon their
filing undertaking before the Supreme Court with the result
that all the selected candidates were duly appointed
subject to the outcome of the instant appeals and subject
to the conditions stipulated in he interim order. B
The questions which arose for consideration in the
instant appeals were whether the High Court was justified
in quashing the appointment of the enquiry officer
appointed to look into the allegations of malpractice C
allegedly committed in the course of selection process and
. whether the posts of Principals in different affiliated/aided
Degree and Post-~raduate institutions constituted a cadre
and were, therefore, subject to reservation as prescribed
under the provisions of the Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and D
other Backward Classes) Act, 1994.
Disposing of the appeals, the Court
HELD: 1. The selection of Principals in affiliated/aided E
Degree and Post-graduate colleges is regulated by the
Uttar Pradesh Higher Education Services Commission Act
and the Rules and Regulations framed thereunder. The
selection process was initiated and concluded by the
Commission treating the post to be open category post F
pursuant to the interim ciirections issued by the High Court. ~
The select list was also duly notified. In the ordinary course
recommendations of a statutory Commission established
for selecting suitable candidates as teachers including
Principals for the colleges ought to get the respect it
deserved. However, an enquiry was initiated by~he State G
Governm~nt on the basis of some CQt11plaints received
culminating in the submission of a prelift\{hary report
finding fault with the procedure adopted by the
Commiss.ion in the conduct of the selection process. The
High Court had given an opportunity to the counsel of H
530 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A State to take instructions whether the Government
intended to institute any further enquiry in the matter.
Despite the opportunity, the counsel did not report any
instructions in the matter. The High Court proceeded on
the basis that the Government did not intend to conduct
B any further enquiry into the matter and accordingly
quashed the order appointing the enquiry officer as also
the instructions issued by him against the making of the
appointments. Any enquiry by the State Government
whether in exercise of its power under Section 6 or in
c exercise of its executive power under Article 154 would
only duplicate the exercise which was already pending
before the High Court in the form of several writ petitions
in which the aggrieved candidates had raised issues
relating to the validity of the selection process on several
grounds including those which the State Government
0
purported to be looking into on the basis of the complaints
received by it. Therefore, there is no need fo1 the State
Government to undertake a parallel exercise especially
when the examination by the High Court of all matters
E concerning the validity of selection would give an
opportunity not only to the State Government but also to
the aggrieved candidates who have been selected to
present their respective version before it. If the High Court
on the basis of whatever material is placed before it by the
parties comes to the conclusion that there was nothing
F wrong with the selection process, any enquiry made by
the State would be wholly unnecessary. On the contrary,
if the High Court comes to the conclusion that the
selection was vitiated by any illegality or irregularity, the
State Government could exercise its power and institute
G an enquiry for the removal of any member who may have
committed any misconduct by being a party to any such
illegality or irregularity. In the circumstances, no decision
is given on the question whether the institution of enquiry
by the State Government was justified, and if so, whether
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND 531
ORS.
the source of power invoked by the Government was A
indeed available to it. In the writ petitions filed by the
aggrieved candidates before the High Court, all aspects
of the matter shall be open to examination in which
everyone connected with the selection process would
have an opportunity to place his/her point of view. The B
selected candidates may not have been impleaded as
parties to the pending writ petitions although they were
necessary parties having regard to the fact that any order
that the High Court may pass regarding the validity of the
selection may affect them adversely. The selected c
candidates who were appointed on the ba~is of the
selection process and who had filed undertakings before
this Court shall, therefore, be impleaded as parties to the
pending writ petitions to avoid any technical infirmity in
the proceedings and any consequent delay in the disposal D
of the matter. [Paras 22, 23, 24] [550-A-F; 551-A-H; 552-A-
G]
2.1. Uttar Pradesh Higher Education Services
Commission Act, 1980 was introduced to make the
selection of teachers in Degree and Post-graduate E
Colleges fair, objective and transparent. The statement of
objects and reasons for the legislation has referred to
favoritism in the selection of candidates for such colleges
and elimination of such infirmities from the selection
process as one of the objectives underlying the F
enactment. Section 12 of the Act stipulates the process for
appointment of teachers and inter alia provides that
appointment of a teacher of any college shall be made by
the Management only in accordance with the provisions
of the Act and that any appointment made in contravention G
thereof shall be void. A careful reading of the provisions
of the Act, the Rules and the Regulations do not support
the theory that the same by a fiction of law create a cadre
of principals either for the purpose of applying reservation
or otherwise. The object underlying the legislation was H
532 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A limited to ensuring a combined process of selection that
would save time and expense involved in such selections
if the same are made individually for each college. It is also
intended tor remove the element of arbitrariness and other
malpractices that were noticed in the making of such
B selections and appointments by the institutions if left to
themselves. The setting up of the Statutory Commission,
appointment of persons qualified for the same, stipulating
the term!> and conditions of service of those appointed and
the power to r<>move the members for misconduct and
c laying down the procedure for appointment of teachers are
all meant to ensure that the process of selection is free
from mal-practices that were generally associated with
such process when handled by the institutions. There is
nothing in th~ Act, the Rules and Regulations, to even
remotely, suggest that the legislature intended to create a
0
cadre of principals even where none existed earlier either
for purposes of reservation or otherwise. The fact that the
management was required to communicate the available
vacancies to the Director of Higher Education or that an
appointment order must be issued, once the selection
E process is completed and a candidate is recommended for
appointment also does not have the effect of creating a
cadre of principals. All that the provisions of the Act intend
to achieve is to ensure that the vacancies are referred to
the Statutory Commission to enable it to conduct the
F process of selection and once the process is completed
and recommendations made, the management do not
refuse appointment to the candidate considered best for
the post. [Paras 25, 31, 32] [552-H; 553-A; 535-A-G]
G 2.2. The power vested in the Director to hold an
enquiry and to issue directions for payment of salary, in
case the management does not appoint, is also meant to
be a step-in-aid of the process of selection and
appointment giving primacy to the opinion of the
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS.
533
Commission regarding the merit and suitability of the A
candidate for such appointment and entitling the candidate
to claim salary if the appointment is unjustifiably denied
to him. The provisions of the Act and the Regulations do
not have anything to do with creation of a cadre of
Principals nor can the commonality of the selection B
process be confused with the caderisation of the post of
Principals. The fact that the State Government offers
financial aid to the affiliated colleges in terms of payment
of salary of those serving such institutions does not have
any relevance to the question whether the posts of c
Principals in different colleges under different
managements constitute a cadre. Merely because the
Government supports the institutions which are in all other
respects autonomous in their functioning, and are
managed by individual managements cannot by any 0
·stretch of reasoning be taken as a circumstance
constituting the posts in such colleges into a single cadre.
So also the fact that the terms and conditions of service
of such teachers serving in different colleges including
Principals are similar on account of such colleges being E
affiliated to the same university and being governed by the
same set of Statutes, Rules and Regulations also does not
have anything to do with the creation or the existence of
a single cadre comprising such posts. There is no
gainsaying that such common features do not in any way F
impinge upon the autonomous character of such
institutions nor does payment of salaries and the similarity
of conditions of service of the employees provide a test
for holding that although serving in different institutions
totally independent of each other the Principals appointed
in such institution form a common cadre. [Paras 33, 34] G
[556-C-H; 557-A-C]
2.3. In terms of Section 14 of the Act, managements
are required to issue an appointment letter to the person
whose name has been intimated to it but any such
obligation flowing from Section 14 does not make the State H
534 SUPREME COURT REPORTS
·-.
[2011] 4 S.C.R.
A Government the employer of the person appointed. It is
evident from a plain reading of Section 14 that the
appointment letter has to be issued only by the
management. There is no provision empowering the
Director to do so. This implies that the selected candidate
B is taken into the employment of the institution only when
the management of the institution issues in his favour a
letter of appointment. It is manifest that the appointing
authority even under the scheme of the Act remains the
management of the institutions. The provisions of the Act
c simply make sure that the management makes an
appointment only of the persons selected for the post and
no more. The authorities under the Act do not substitute
themselves as the employer of the person appointed. [Para
35) [557-E-H; 558-A]
D 2.4. The post of Principals in different aided/affiliated
institutions is not transferable or interchangeable.
Interchangeability of the post and transferability of
incumbents to another post in the same cadre are essential
attributes of a cadre, which is in the instant case absent.
E There is no power vested in the State Government or any
other authority for that matter to transfer the Principal from
one institution to another institution as it may do for
instance in the case of Government run institutions where
Principal from one government college may be transferred
F to another government college in the same cadre. Sub-rule
(1) of Rule 4 does not talk about the power of transfer
vested in any authority. It talks about entitlement of a
permanent teacher to be transferred after 10 years of
service only once in the whole service period. Sub-rule (2)
G provides that the transferred teacher shall become an
employee of the college to which he has been transferred.
More importantly sub-rule (4) makes the transferred
teacher go to the bottom of the cadre to which he may be
transferred. That provision may not make much sense
H when it comes to transfer of a Principal from one college
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS.
535
to another but it certainly shows that even when there are A
plurality of posts in the cadre lower than the principal the
person transferred from another institution would figure
at the bottom of the said cadre. This again is a
circumstance which negates the theory of Principals
being a part of the same cadre. The attribute of B
interchangeability and transferability is missing in the case
of Principals - in much the same measure as in the case
of teachers, in the lower cadre. Therefore, there is no cadre
of Principals serving in different aided and affiliated
institutions and that the Principal's post is a solitary post c
in an institution. Reservation of such a post is clearly
impermissible not only because the Uttar Pradesh Public
Services (Reservation for Scheduled Castes, Scheduled
Tribes and other Backward Classes) Act, 1994 provides for
reservation based on the 'cadre strength' in aided
0
institutions but also because such strength being limited
to only one post in the cadre is legally not amenable to
reservations. [Paras 36- 39) [558-C-D; 559-F-H; 560-A-G]
2.5. It is true that Section 10 of the 1982 Act which
stipulates the procedure for selection of candidates for E
direct recruitment requires determination of the vacancies
to be reserved for candidates belonging to SC, ST and
Backward Classes and reference of such vacancies to be
made to the Commission established under the said Act
but excluding the post of Principal/Head of the institution F
from the said determination but it is equally true that
Section 12of1982 Act does not require any exercise to be
undertaken by the Institutions for determining the number
of vacancies to be reserved for candidates belonging to
reserved categories. There is consequently no provision G
by which the post of Principal/Head of the institution is
excluded from any such process. The two provisions in
. that sense are not comparable. In one case the number of
vacancies to be reserved is required to be determined
H
536 SUPREME COURT REFORTS [2011] 4 S.C.R.
A while in the other no such requirement has been
•
stipulated. Exclusion of the Principal's post from such
determination under the 1982 Act cannot, therefore, be
overemphasized in the absence of a provision requiring
a determination of the reserved vacancies under Section
B 12 of the 1980 Act. If the posts of Principals in the
secondary school which are much larger in number than
the Degree and Post-Graduate colleges are not amenable
to reservation and have been specifically excluded from
that process, there is no earthly reason why posts of
C Principals in Degree and Post-Graduate colleges which arc
relatively fewer in number available in colleges imparting
higher education ought to be subjected to such
reservation. What is true in the case of secondary schools
would, therefore, be true in the case of Degree and Post-
o Graduate colleges also. Any interpretation that may render
the legal position anomalous or absurd shall, therefore,
have to be eschewed. [Paras 42, 43] [562-E-H; 563-A-E]
Post Graduate Institute of Medical Education & Research,
Chandigarh v. Faculty Association & Ors. (1998) 4 SCC 1 -
E Followed
Balbir Kaur and Anr. v. Uttar Pradesh Secondary
Education Services Selection Board, Allahabad and Ors.
(2008) 12 sec 1 - relied on.
F Onkar Dutt Sharma and Ors. v. State of UP. and Ors.
(2001) 1 SAC505; Dr. Chakradhar Pa swan v. State of Bihar &
Ors. (1988) 2 SCC214; Indra Sawhney and Ors. v. Union of
India and Ors. 1992Supp.(3) SCC 217; Arati Ray Choudhury
v. Union of India 1974(1) SCC 87; M.R. Balaji v. State of
G Mysore AIR 1963 SC 649; T. Devadasan v. Union of India
AIR 1964 SC 179; Bhide Girls Education Society v. Education
Officer, Zita Parishad Nagpur and Ors.1993 Supp (3) SCC
527; Post-graduate Institute of Medical Education & Research,
Chandigarh v. Faculty Association and Ors.(1998) 4 SCC 1;
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS.
Union of India and Anr. v. Madhav s/o GajananChaubal and
537
A
Anr. (1997) 2 SCC 332; Union of India v. Brij Lal Thakur
(1997) 4 SCC 278; State of Bihar v. Bageshwari Prasad 1995
Supp (1) SCC 432 - referred to.
2.6. In the result the following directions were passed: 8
(1) The impugned orders passed by the High Court to
the extent the same hold that the posts of Principals
in affiliated/aided colleges are not amenable to
reservation are affirmed.
c
(2) Order dated 12th June, 2007 issued by the
Government appointing the Divisional Commissioner,
Allahabad as an Enquiry Officer to hold an enquiry
into the validity of selection process and the report
submitted by the said Enquiry Officer shall stand o
quashed and the order passed by the High Court to
that effect affirmed.
(3) The question whether the Government was
competent to direct an enquiry into the validity of the E
selection process under Section 6 of the Uttar
Pradesh Higher Education Services Commission Act,
1980 or under Article 154 of the Constitution is left
open in view of the pendency of the writ petitions
challenging the validity of the selection process
before the High Court. F
(4) The High Court shall in the writ petitions pending
before it be free to examine all issues regarding the
selection process in question including the validity of
the procedure followed in making the same. G
Depending upon whether the High Court finds the
selection process to be valid or otherwise the
Government shall have the liberty to institute an
enquiry against the members of the State Services
Selection Commission if such enquiry is otherwise H
A
538 SUPREME COURT REPORTS (2011] 4 S.C.R.
permitted under law. In case, however, the High Court
•
upholds the selection process and dismisses the writ
petitions there shall be no room left for the State
Government to embark upon any further enquiry into
the matter on the administrative side. The aggrieved
B party shall be free to challenge the view taken by the
High Court in appropriate proceedings in accordance
with law.
(5) The selected candidates who have filed
undertakings in this Court and have been appointed
c 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
D 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
E 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
F place the writ petitions before a Division Bench of the
High Court for an early hearing and disposal as far as
possible before the 1st December, 2011.
(7) Pending disposal of the writ petitions by the High
Court the selected candidates shall be entitled to
G 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
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS.
same shall, however, be subject to the outcome of the
539
A
writ petitions before the High Court and the
undertakings furnished by the appointed candidates
to this Court which undertaking shall be deemed to
have been continued till such time the writ petitions
are finally disposed of. [Para 53) [567-F-H; 568-A-H; B
569-A-E]
Case Law Reference:
(2008) 12 sec 1 relied on Paras 18, 40, 41,
44 c
·(2001) 1 SAC 505 referred to Para 14
(1988) 2 sec 214 referred to Paras 40, 46
(1998) 4 sec 1 relied on Para 40
- -· -.- .. . D
1992 Supp,(3) SCC-217 referred to Para 45 ·
1974 (1) sec 87 referred to Para 46
AIR 1963 SC 649 referred to Para 46
E
AIR 1964 SC 179 referred to · Para 46
1993 Supp (3) sec 527 referred to Para 46
(1998) 4 sec 1 Followed Para 47
(1997) 2 sec 332 referred to Para 47 F
(1997) 4 sec 218 referred to Para 47
1995 Supp (1) sec 432 referred to Para 47
CIVILAPPELLATEJURISDICITION: Civil Appeal No. 2351 G
of 2011.
From the Judgment & Order dated 7.8.2008 of the High
Court of Judicature at Allahabad in Civil Writ Petition No. 29524
of 2007.
H
A
540 SUPREME COURT REPORTS
VlllTH
[2011) 4 S.C.R.
•
C.A. Nos. 2352, 2353-2355, 2356-2358, 2359-2360 & 2361 of
2011, T.P. 3 of 2009, Contempt Petition No. 32 of 2009, T.P.
(C) No. 1136 of 2009.
B Ravindra Srivastava, Dinesh Dwivedi, P.S. Patwalia, Pallav
Shishodia, V. Shekhar, P.S. Narasimhan, T.N. Singh, Rajeev
Dubey, Kunal Verma, Kamlendra Mishra, Rana Mukherjee,
Deependra Narain Singh, Kirti Yadav, Sunaina Kumar, Ankita
Mishra (for Legal Options), Sanjay Visen, J.K. Mishra, G.P.
C Singh, Vidit Khanna, Anirudha P. Mayee, Amit Anand Tiwari,
Rakesh Mishra, Rajeev Kumar Bansal, Amanpreet Singh Raji,
Tushar Bakshi, Manoj K. Mishra, Raj Singh Rana, K.L. Janjani,
Pankaj Singh, Avinash Jain, Pooja Dhar, Prashant Kumar (for
AP & J Chambers), Niranjana Singh, Nalin Tripati, Deepak
D Agnihotri (for Rajeev Agnihotri), for Rameshwar Prasad Goyal,
Ranbir Singh Yadav, Praneet Ranjan, Pranay Ranjan, Jeevan
Prakash, Kamlendra Mishra, Praveen Jain, R.D. Upadhyay,
Aftab Ali Khan, S.S. Nehra, H.K. Puri, Nikhil Nayyar, Abhishek
Atrey, Shiam Narain Singh, Praveen Swarup, Rakesh K.
E Sharma, Sangita Chauhan, Aniruddha P. Mayee, Praneet
Rajan, Sulalit K. Sisodia, Pranay Ranjan, V.J. Francis, Anupam
Mishra, Nagendra Singh, Vishwa Pal Singh, Nalin Tripathi,
Deepak Agnihotri, Anil Kumar Pathak for the appearing parties.
The Judgment of the Court was delivered by
F
T.S. THAKUR, J. 1. Leave granted.
2. These appeals arise out of a judgment and order dated
7th August 2008 passed by the High Court of Allahabad whereby
G the High Court has allowed the writ petitions filed by the selected
candidates, quashed the orders under challenge in the same and
by a mandamus directed the Director, Higher Education to give
effect to the recommendatioQ.s~i111ade by the U.P. Higher
Education Service Commission for SP.POintment to the post of
H Principals in aided/affiliated.. De~e and Post-Graduate
•STATE OF U.P. AND ORS. v. BHARAT SINGH AND 541
ORS. [T.S. THAKUR, J.]
colleges. The High Court has further directed issue of placement A
orders in favour of the selected candidates without any delay.
The facts giving rise to the filing of the petitions may be
summarized as under:
3. The Government of U.P. has established what is known B
as 'Uttar Pradesh Higher Education Services Commission' in
terms of Section 3 of the U.P. Higher Education Services Act,
1980. The Commission is, among other functions assigned to it
unaer the Act, empowered to prepare guidelines touching the
method of recruitment of teachers in colleges and conduct
examinations, hold interviews and make selection of candidates C
for being appointed as teachers and make recommendations
to the managements concerned regarding the appointment of
selected candidates. The selection process undertaken by the
Commission is, however, confined only to colleges to which the
privileges of affiliation or recognition have been granted by the D
University including colleges that are maintained by local
authorities. Colleges that are maintained by the State
Government or colleges imparting medical education are
outside the purview of the Act aforementioned. We shall
presently refer to the provisions of the Act in greater detail but E
we may at this stage only say that in terms of Section 12 of the
Act, the Managements of the colleges are required to intimate
the existing vacancies and the vacancies likely to be caused
during the course of the ensuing academic year to the Director
of Education who is then required to notify to the Commission a F
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 G
terms of the above procedure, a consolidated advertisement
bearing multiple numbers (33 to 36) was issued by it on 29th May
2003 inviting applications for the vacancies mentioned in the
said advertisement. A large number of writ petitions challenging
the said advertisement came to be filed before the High Court H
542 SUPREME COURT REPORTS [2011} 4 S.C.R. •
A of Allahabad primarily on the ground that the post of Principals
notified by the Commission available as they were in different
colleges affiliated to the University being single posts in the cadre
were not amenable to reservation. These writ petitions were
entertained by the High Court and by interim orders dated 1st
B September, 15th September and 22nd September 2003,
directions issued to the Commission to the effect that the post
of Principals shall be treated as non-reserved posts.
5. In compliance with the above directions, the Commission
issued a fresh advertisement dated 24th February 2005 being
C advertisement No.39 inviting applications for 140 posts of
Principals, out of which 87 posts were available in Post-Graduate
Colleges while 53 others were in Degree Colleges. The
advertisement did not make any mention about any reservation
implying thereby that the posts were offered in the general/open
D merit category. The entire selection process was to be subject
to the ultimate outcome of the writ petitions pending before the
Allahabad High Court. It is common ground that interim orders
dated 1st September 2003, 15th September 2003 and 22nd
September 2003 were challenged before this Court by way of
E SLPs, but the said petitions were dismissed on the ground of
delay and !aches by this Court's order dated 3rd November,
2008.
6. The Commission took nearly two years to complete the
F selection process which culminated in the publication of a select
list in terms of a notification dated 15th May 2007. With the
publication of the select list, the batch of writ petitions pending
before the High Court in which the interim orders mentioned
above had been issued was dismissed as infructuous. The High
G Court while doing so noted the submission made on behalf of
the Commission that there was no cadre of Principals in the Post-
Grad uate colleges and the posts of Principals were not
interchangeable or transferable.
7. In the case of the appellant-State of Uttar Pradesh that
H before appointment orders could be issued to those included in
•STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
543
the select list, a number of complaints were received by it against A
the selection held by the Commission alleging large scale
irregularities and malpractices of serious nature in the selection
procedure and demanding an inquiry into the same. The State
Government accordingly directed the Divisional Commissioner,
Allahabad to hold an inquiry into the allegations and to submit a B
report within 15 days. The Divisional Commissioner in turn asked
for certain information from the Service Commission in
connection with the inquiry with a copy to the Director, Higher
Education requesting him to show restraint in issuing the
placement orders in terms of the recommendations received c
from the Service Commission.
8. Aggrieved by the said communication, the selected
candidates filed several writ petitions before the High Court of
Allahabad challenging the notification issued by the Government
appointing the Divisional Commissioner as an inquiry officer and D
the letter written by him to the Director of Education asking him
to withhold the issue of placement orders in favour of the selected
candidates. While the said writ petitions were still pending
disposal the Divisional Commissioner submitted a preliminary
inquiry report dated 6th July 2007 in which he recorded a prima E
facie conclusion that a series of irregularities and malpractices
had been committed by the Service Commission in the process
of selection. The High Court in the meantime passed an interim
order dated 13th July 2007 staying the operation of the
notification appointing the Divisional Commissioner as an F
inquiry officer with a direction to the respondent to issue
appointment letters to the selected candidates within three
weeks.
9. Aggrieved by the interim order referred to above, the G
State filed a special leave petition in this Court in which this Court
by an order dated 21st August 2007 stayed the interim direction
in so far as the same directed the Director, Higher Education to
issue appointment letters in favour of the selected candidates.
The special leave petition was finally disposed by this Court on
H
544 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A 12th February 2008 with a request to the High Court to dispose
of the writ petitions within four months. The interim order issued
by this Court on 21st August 2007 was continued in the
meantime.
10. Before the High Court, the Government filed a counter
8
affidavit to the writ petition stating that there were serious
infirmities in the process and an indepth inquiry into the matter
was necessary. The High Court eventually allowed the writ petition
quashing orders dated 12th June 2007 and 16th June 2007
impugned therein and issued a mandamus to the Director,
C Higher Education Service Commission to make placements in
favour of the selected candidates. The present appeals assail
the correctness of the said orders.
11. We may at this stage point out that by an interim order
D dated 20th November, 2008 passed in these cases this Court
directed the appellant-State to appoint the selected 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,
E provided the respondents filed undertakings in this Court to the
effect that in case they lose the battle they will stand reverted to
the posts of Readers and the difference of salary amount drawn
by them as Principals recovered and paid back to the State. That
direction was reiterated by this Court in terms of order dated
F 23rd April, 2009 whereby this Court directed that although 56
candidates had already been appointed out of the select list in
different Degree and Post-Graduate colleges, the direction
issued by this Court should be complied with in toto within a
period of one month from the date of the said order. Hearing of
G the SLPs was also directed to be expedited. It is not in dispute
that the State has pursuant to the above direction appointed the
selected candidates upon their filing undertakings before this
Court with the result that all the selected candidates are duly
appointed subject to the outcome of the present appeals and
H subject to the conditions stipulated in the interim orders
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
545
mentioned above. A
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, B
Allahabad for holding a preliminary enquiry into the allegations
of malpractices in the selection process based on the complaints
received by the Government. He urged that Section 6( 1) of the
Uttar Pradesh Higher Education Services Commission Act,
1980 empowered the State Government to remove from office
any member of the Service Commission, in situations where the C
State Government considers them unfit to continue in office by
reason of proved misconduct. The source of power so available
was according to the learned counsel sufficient for the
Government to hold an enquiry into the allegations regarding the
legality and procedural regularity of the selection process for it D
was only on the basis of any such enquiry that the Government
could determine whether any misconduct had been committed ·
by the members of the Commission. 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 E
to approve the end result of the selection process. The
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.
F
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 G
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 H
546 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A no candidate had a righCto 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 selection process and where allegations casting
a cloud on the legality and propriety of the procedure have been
B 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
C in disposing of writ petition Nos. 39369/2003, 39370/2003,
4862112003, 4119112003, 5241112003, 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
D 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
E of Principals 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
UP. and Ors. (2001) 1 SAC 505, but failed to satisfactorily
F 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
G 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
H which provisions of Reservation Act, 1994 would apply.
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
547
15. Mr. Dinesh Dwivedi learned, senior counsel appearing A
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 B
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 c
regard was made by him to Sections 60-A, 60-8, 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 D
Director having regard to the provisions of Sections 12 and 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
E
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 F
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 G
as in the case of secondary schools, a specific provision to that
effect was made in the statute.
16. On behalf of the respondents Mr. P.S. Patwalia, senior
counsel, argued that the enquiry instituted by the Government into H
548 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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
B 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
C vague, unfounded and imaginary containing an appeal to the
Government to intervene on caste and community considerations
ratherthan any concrete evidence regarding the commission of
any malpractices. He drew our 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
D 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
E 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.
F
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 be wholly
G 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
H the college concerned. The posts of the Principals were not
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
549
interchangeable or transferrable under the Rules except with the A
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, B
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
adopted the arguments advanced by Mr. Patwalia thatthere was
nothing in the provisions of the Uttar Pradesh Higher Education C
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 D
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 E
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 : F
(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
G
(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. H
A
550 SUPREME COURT REPORTS (2011] 4 S.C.R.
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
B Education Services Commission Act, the Rules and 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
C 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
D 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
E 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 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
F 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:
G "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."
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
23. The High Court, therefore, proceeded on the basis that
551
A
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 B
Government made out a prima facie 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 c
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 D
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 E
Court in the form of several writ petitions in which the aggrieved
candidates have raised issues relating to the validity of the
selection process on several grounds including those which the
State Government purports to be looking into onlhe basis of the
complaints received by it. We had in that view asked Mr. F
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 G
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 H
.>
552 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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 may have committed any misconduct by being a party to
any such illegality or irregularity. To the credit of Mr. Srivastava,
B 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
C 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
0
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.
24. We are told that the selected candidates may not have
E 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
F 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
G 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 in
H Degree and Post-graduate Colleges fair, objective and
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
transparent. The statement of objects and reasons for the
553
A
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
B .
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 C
preparation of guidelines on matters relating to the method of
recruitment, conduct of examinations where considered
necessary, holding of interviews for maJ<ing sel~ction of
candidates to be appointed as teachers and selection of experts
and appointment of examiners for such examination. Section 12 D
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 E
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 F
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 G
to indicate their order of preference for the various 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
H
SUPREME COURT REPORTS (2011] 4 S.C.R.
e
554
A 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
B 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
C issue an appointment letter to the person whose name has been
intimated to it. It reads:
•
"14. Duty of Management.-(1) The management shall within
a period of one month from the date of receipt of intimation
D 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
E 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
F 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
G 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.
30. The Government has in exercise of its power under
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND 555
ORS. [T.S. THAKUR, J.]
Section 32 and Section 31 of the Uttar Pradesh Higher A
Education Services Commission Act, 19~0 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 B
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 c
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 either for the D
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 E
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 F
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 G
and Regulations, to even remotely, suggest that the legislature
intended to create a cadre of principals even where none existed
earlier either for purposes of reservation or otherwise.
32. The fact that the management was required to H
556 SUPREME COURT REPORTS [2011) 4 S.C.R.
A 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
B 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.
c 33. The power vested in the Director to hold an enquiry and
to issue directions for payment of salary, in case the
management does not appoint, is also meant to be a step in aid
of the process of selection and appointment giving primacy to
the opinion of the Commission regarding the merit and suitability
D 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
E 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
F 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 terms of payment of salary of those
serving such institutions does not in our opinion have any
G 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
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
557
stretch of reasoning be taken as a circumstance constituting the A
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 8
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 of salaries and the similarity of conditions of service of C
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 D
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 E
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 any such obligation flowing from Section 14 does not F
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 G
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 H
558 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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 transferable or
B 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,
• C 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
D
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
E 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.
F
(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
G
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
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND 559
ORS. [T.S. THAKUR, J.]
shall not be advertised by the Uttar Pradesh Higher A
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 8
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 C
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.
D
(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, t<;> the Regional E
Higher Education'Officer of the Region concerned an1 to
the Director, Higher Education."·
37. It is evident from tfie 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 F
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 nottalk aboutthe power of transfer vested
in any authority. It talks about entitlement of a permanent teacher G
to be transferred after 1Oyears of service only once in the whole
service period. Sub-rule (2) provides that the tr~nsferred 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 H
560 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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 lower than the principal the person transferred from
another institution would figure at the bottom of the said cadre.
B 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
C 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.
D
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 hesitation
E 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
F 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 tbe cadre
is legally not amenable to reservations in the lighCof the
pronouncementof this Court to which we shall presently refer.
G 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 Principal under the U.P. Secondary
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
561
Education Services Commission and Selection Boards Act, A
1982. One of the questions that fell for considerc;ition was whet.her
the post of Principal in institutions offering secqndciry e9ucation
was amenable to reservation having regard to the Reserv~ion:
Act of 1994 referred above. This Court answered the question"
in the negative and gave two reasons in support of that B
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 c
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
0
Paswan v. State of Bihar & Ors. (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 E
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: F
"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 G
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 H
A
562 SUPREME COURT REPORTS [2011] 4 S.C.R.
institutions for the purpose of applying the principle of
•
reservation under the 1994 Act."
41. It was argued on behalf of the respondents that while
Section 10 of the U. P. Secondary Education Services
B 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
C 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
D decision in Balbir Kaur's case (supra) argued learned counsel
for the appellants was on that basis distinguishable.
42. We do not think so. It is true that Section 10 of the 1982
Act which stipulates the procedure for selection of candidates
E 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
F 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
G 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 requiretl
to be determined while in the other no such requirement has been
stipulated. Exclusion of the Principal's post from such
determination under the 1982 Act cannot, therefore, be
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND 563
ORS. [T.S. THAKUR, J.]
overemphasized in the absence of a provision requiring a 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 8
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. C
If the posts of Principals in the secondary school which are much
larger in number than the Degree and Post-Graduate colleges
are not amenable to reservation and have been specifically
excluded from that process, there is no earthly reason why posts
of Principals in Degree and Post-Graduate colleges which are D
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 E
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 F
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 that view can be ignored or wished G
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
H
564 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A v. Union of India and Ors., 1992 Supp.{3) SCC 217, continues
to be the locus classicus on the subject of reservation. This Court
m 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
B 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
C 1974 (1) SCC 87, M.R. Balaji v. State of Mysore 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%
D reservation and thereby violate Articles 14( 1) and 16(4) of the
Constitution.
In Bhide Girls Education Society v. Education Officer, Zita
Parishad, Nagpur and Ors., 1993 Supp (3) SCC 527 this Court
E 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
F 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 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
G SCC 278 and State of Bihar v. Bageshwari Prasad 1995 Supp
(1) sec 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
H situation where such a single post in the cadre will be kept
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND
ORS. [T.S. THAKUR, J.]
reserved exclusively for the members of the backward
565
A
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 8
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 C
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 D
members of a large segment of the community who do not
belong to any reserved class, but on some other occa.sions
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 E
society."
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 F
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 G
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 H
566 SUPREME COURT REPORTS [2011] 4 S.C.R.
A to assume office on a substantive basis subject to any direction
which the competent Court may issue as regards the validity of
the 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
B 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
C 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
D contra argued that the release of any further benefits to the
selected candidates could await the disposal of the writ petitions
pending before the High Court which disposal could be expedited
in the interest of all concerned.
E 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
F 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
G 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. There is,
therefore, no final adjudication of the dispute between the parties
' in so far as the validity of the selection process is concerned.
H
• STATE OF U.P. AND ORS. v. BHARAT SINGH AND 567
ORS. [T.S. THAKUR, J.]
Such being the case we do not consider it necessary to relieve A
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 B
have been appointed during the period such appointments
continue to remain in force. The directions under which the
appointments were allowed to be niade also did not permit the
State to withhold benefits legitimately flowing from such
appointments. If any additional financial benefits by way of c
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 before this Court.
52. An apprehension was expressed before us that the D
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 impleadirig 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. E
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. F
53. In the result we dispose of these appeals with the
following directions:
(1) The impugned orders passed by the High Court to the
extent the same hold that the posts of Principals in affiliated/ G
aided colleges are not amenable to reservation are
affirmed.
(2) Order dated 12th June, 2007 issued by the Government
H
568 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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.
B
(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
c petitions challenging the validity of the selection process
before the High Court.
(4) The High Court shall in the writ petitions pending before
it be free to examine all issues regarding the selection
D 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
E 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
F matter on the administrative side. The aggrieved party shall
be free to challenge the view taken by the High Court in
appropriate proceedings in accordance with law.
(5) The selected candidates who have filed undertakings
in this Court and have been appointed to the posts of
G 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
H
STATE OF U.P. AND ORS. v. BHARAT SINGH AND 569
ORS. [T.S. THAKUR, J.]
in each one of the petitions and file their counter-affidavits. A
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-pa rte, against those who fail to comply with this
direction.
(6) In order to expedite the hearing of the case the Chief B
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.
c
(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 admiss
ible to the post of Principal as if the appointments were
made on a valid and substantive basis. Such benefits D
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 E
of.
54. The parties shall bear their own costs.
D.G. Appeals disposed of.
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