2009 Supreme(All) 3525

[2010(1) ADJ 61 (FB)]
ALLAHABAD HIGH COURT
(Full Bench)
BEFORE : C.K. PRASAD, C.J., R.K. AGRAWAL AND S.P. MEHROTRA, JJ.
GAURAV TRIPATHI ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition Nos. 3326, 6733, 12241, 15093, 15094, 15697, 795 and 464 of 2009, decided on 11th December, 2009)

Headnote:(A) Practice and Procedure—Constitution of Full Bench—Allahabad High Court Rules, 1952—Chapter V, Rules 1, 6 and 13—Constitution of Full Bench by Chief Justice—On reference sent by two Judges for resolving important legal controversy—Those two Judges also included in Constitution of Full Bench consisting of three Judges—Whether valid—Question of—Considered by Full Bench and found that it is not invalid when those two Judges did not gave their opinion on that legal controversy—They only gave their tentative/prima facie opinion and referred the matter for decision by larger Bench to Chief Justice—In the instant case, two Judges who are members of Full Bench and on whose reference this Full Bench was constituted, did not gave their final opinion on legal controversy—Therefore, their inclusion in Full Bench—Not against law—Rule 13 does not apply to instant case of constitution of Full Bench—Several other relevant aspects—Elaborated. [Paras 54 to 61, 64, 66, 67, 69, 70, 77 and 81]

       (B) Selection—Post of teachers/lecturers by U.P. Higher Education Service Commission—Preliminary Screening and short-listing of candidates to be called for interview—On basis of “teaching experience”—Not valid—Guidelines framed by Commission in exercise of powers under Section 11(a) of Services Commission Act, 1980, in 2008, which provide “teaching experience” as one of the factors for preliminary screening and short listing—To that extent are against law—Cannot be applied—Minimum qualification for such selection is consistently good academic record plus post graduation with 55 per cent marks or its equivalent with B Grade plus National Eligibility Test (NET), as is mentioned in Regulation 3 of Teachers Selection Regulations, 1993 and statutes referred in Section 50 of State Universities Act, 1973—High Court examined entire procedural provisions and found that Guidelines are inconsistent with Regulation 6(1) Proviso (i) of Teachers Selection Regulations, 1993—It was clarified that absence of word only in Proviso (i) of Regulation 6(1)—Does not mean that Commission can include “teaching experience” as one of the factors for preliminary Screening and shortlisting of candidates—It was further clarified that inclusion of “teaching experience” by other Universities, is not relevant when proviso (i) of Regulation 6(1) excludes it—Several other relevant aspects—Considered and explained by High Court. [U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1993—Regulations 3 and 6(1) Proviso (i)—U.P. State Universities Act, 1973—Section 50—Government Order dated 12.7.2006—U.P. Higher Education Services Commission Act, 1980—Sections 11(a), 12(4), 31(1) and 13(2)]. [Paras 84 to 93, 118 to 121, 127, 128, 136 to 140, 143, 147 to 149, 159, 166, 167 and 287].

       (C) U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1993—Regulations 6(1) and 6(2)—U.P. Higher Education Services Commission Act, 1980—Sections 31 and 11(a)—Provisions of Regulation 6—Are within ambit of powers to frame Regulations, conferred by Section 31 of the Act—Because “laying down procedure to be followed by Commission for discharging its duties and performing its function” for which Section 31 gives powers to Commission—Take within its ambit giving of power to frame regulations regarding performance of its main function, namely selection of teachers—On the other hand Section 11(a) also empowers commission to frame Guidelines for supplementary Regulations—Therefore, reading both provision, i.e., Regulation 6 and Section 11(a), makes it clear that Regulation 6 is not beyond powers conferred by Section 31—Plea that words “with highly commendable profession achievement in subject concerned, does not take within ambit ‘academic record’—Not correct—For purpose of interview under Regulation 6(2), criteria of preliminary screening is not required to be followed—Because this criteria is applied before process of interview. [Paras 188, 189, 191, 192, 194, 198 and 203]

       (D) Constitution of India—Article 226—U.P. Higher Education Services Commission Act, 1980—Section 11(a)—Selection for post of teachers/lecturers—Advertisement given by Higher Education Service Commission—Petitioners applied for post and finally screened out on ground that they lack “teaching experience” which was a requirement provided by Guidelines framed by Commission in exercise of its under Section 11(a)—On coming to know about this requirement of “teaching experience” which was nowhere indicated in advertisement, petitioners filed writ petition challenging ‘Guidelines’—They cannot be prohibited from filing writ petition on ground that after appearing in process of selection, they are estopped from challenging “guidelines”—Because there was no such indication of “Guidelines” containing criteria of teaching experience when they applied for post and appeared in selection process. [Paras 212 to 214]

       (E) Judicial Review—Permissibility—Law—Guidelines framed by U.P. Higher Education Services Commission—In exercise of its powers under Section 11(a) of Services Commission Act, 1980, by experts—Question raised before High Court was as to whether these Guidelines were framed in violation of Regulation 6(1) Proviso (i) of Teachers Services Regulations—In such a position, High Court can exercise its powers of Judicial Review. [Constitution of India—Articles 226 and 227—U.P. Higher Education Services Commission Act, 1980—Sections 11(a) and 31—U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1993—Regulation 6(1) Proviso (i)]. [Paras 227 to 229]

       (F) U.P. Higher Education Services Commission Act, 1980—Sections 11(a) and 31—Guidelines framed by Commission—In exercise of its powers under Section 11(a)—For supplementing Regulations framed in exercise of powers under Section 31—Are not inconsistent or in conflict with Regulations—As such do not partake nature of Regulations—Consequently do not require previous approval of State Government. [Para 234]

       (G) Doctrine of Prospective overruling—Applicability—It cannot be applied by High Court, but High Court can grant appropriate relief by applying its equitable powers. [Constitution of India—Articles 226 and 227].

        [Paras 241, 246, 250 and 251]

       (H) Constitution of India—Articles 226 and 227—Writ petitions challenging Guidelines applied in selection of teachers—Filed in January 2001 and February, 2001, when petitioners were screened out on basis of that Guidelines—Division Bench hearing these writ petitions made reference to Full Bench in April, 2009—Commission in spite of it declared results of major portion of candidates after date of reference—Division Bench while making reference made it clear that appointment letters issued to candidates prior to the reference will be subject to result of writ petitions—In this view of the matter, no equitable consideration exist before High Court in not disturbing placement etc. of candidates who were appointed prior to date of reference—Because they had full knowledge about writ petitions and referring order passed in these writ petitions—Moreover, after decision of these writ petitions when Guidelines in question were found in valid, selection made on its basis would stand vitiated—As such, question whether selections materially affected candidates—Would not arise. [Paras 261 to 263 and 269]

       (I) Selection—Post of teachers/lecturers by U.P. Higher Education Service Commission—Petitioners who applied for selection but screened out on basis of Guidelines applied for selection—Are aggrieved persons—Can file writ petition challenging Guidelines and their screening out action by commission on its basis. [Para 275]

       (J) Legal maxims—De factor doctrine—Applicability—Selections made on basis of earlier Guidelines, applying “teaching experience”—Not found invalid as those Guidelines were not found against law—Subsequently, new Guidelines were framed in bona fide manner, in which too “teaching experience” was made one of the basis for selection—These new Guidelines were challenged and found to be illegal—These facts do not attract defecto doctrine—This doctrine is normally applied when an incumbent appointed on post is subsequently found to have been illegally appointed—It is not applied when selections and appointments made are found illegal—By this doctrine illegal selections or appointments cannot be saved. [Paras 279 to 281]

       Result; Decided Accordingly.