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2012 Supreme(All) 1067

[2012(5) ADJ 182 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND MRS. SUNITA AGARWAL, JJ.
Dr. KARUNA NIDHAN UPADHYA AND ANOTHER ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition Nos. 34198, 43081, 49104, 34922, 36977, 42445, 45964 of 2008, 44358 of 2007, 38714, 41345, 39370, 39369, 48621, 42992 of 2003, 70062 of 2006, 29524 of 2007, decided on 23rd April, 2012)

Advocates:
Counsel :
S.K. Chaubey, K.N. Tripathi, S.K. Rai, Swapnil Kumar, Radhey Krishna Pandey, Dr. Neel Kamal, C.P. Gupta, Neeraj Tripathi, Siddharth Nandan, T.P. Singh, Rajiv Kumar Mishra, V.M. Zaidi, Vivek Chaudhary, Aditya Kumar Singh, Ashok Khare, Arun Tandon, Kripa Shanker Singh, P.S. Baghel and Bheem Singh for the Petitioners; C.S.C., G.K. Singh, V.K. Chandel, Archana Singh, A.K. Yadav, B.K. Tripathi, D.K. Tripathi, H.N. Singh, Pradeep Kumar, Pushpendra Singh and S.M.A. Kazami for the Respondents.

Headnote:U.P. State Universities Act, 1973—Section 1— U.P. Higher Education Services Commission Act, 1980—Sections 4(2) (g), 11 and 31— U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations 1983—Regulation 6—Selection—Principal—Process and procedure—Legality of—Different post-graduate and graduate degree colleges—Subject-matter of subsequent writ petition if different, the same is maintainable—Acts of respondent Nos. 4 to 9 who were members of the Commission at the relevant time obviously protected by defacto doctrine—Ordinarily a Member of the Selection Board has to be higher in rank/stature—Where all the Members being lower in rank a very strict scrutiny of the entire procedure of selection is required—No guidelines as per Regulation 6(2) has been laid down—Resolution dated 6.10.1983 by which norms for interview has been claimed to be provided did not fulfil the statutory requirements as provided by Regulation 6(2)—Criteria for screening also changed just before calling the candidates for interview for the post of Principal without any justifiable reason—Action of the Commission acting contrary to the criteria found arbitrary—Teaching experience of a candidate has to be counted with respect to teaching experience acquired as regular or ad-hoc teacher only—Name of women candidates cannot be excluded from the general list—Post of Principal being solitary post in an institution, horizontal reservation also cannot be applied—Selection in categories of physically handicapped and dependent of freedom fighter was impermissible—Selected candidates as well as the Commission are not right in their submission that petitioners be non-suited on ground that they have appeared in the interview—Plea of estoppel by conduct ruled out—State Government empowered to direct for preliminary inquiry into any selection process, however, the same is meaningless at this stage—Entire selection process found vitiated, thus entire selection has to go—Selection has to be held afresh in accordance with the provisions as amended by 2008 Amendment Act by conducting the selection both by written test as well as interview for the post of Principal—Directions issued. [Paras 26 to 104]

       

JUDGMENT

Hon’ble Ashok Bhushan, J.—These writ petitions relate to selection on the post of Principals in post-graduate and degree colleges in the state of U.P. The writ petitions can be divided in following five groups.

(1) The writ petitions challenging the selection dated 30.6.2008 and 2.7.2008 on the post of Principal in different post-graduate colleges in the State of U.P. leading writ petition of which group is writ petition No. 34198 of 2008, Dr. Karuna Nidhan Upadhya and another v. State of U.P. and others.

(2) The writ petition challenging the selection dated 15.5.2007 on the post of Principal in degree colleges in the State of U.P. This group has only one writ petition being writ petition No. 44358 of 2007, Dr. (Mrs.) Noopur Sharan and another v. State of U.P.

(3) The writ petitions challenging the reservation for Scheduled Castes, Scheduled Tribes and other backward classes on the post of Principals in post-graduate colleges and degree colleges as contained in advertisement Nos. 33,34,35 and 36, issued by U.P. Higher Education Services Commission, leading writ petition No. of which is writ petition No 38714 of 2003 Dr. (Smt.) Shikha Chaturvedi v. U.P. Higher Education Services Commission and others.

(4) This group has only one writ petition praying for a mandamus directing the Higher Education Service Commission to make selection on the post of Principal in degree colleges/post-graduate colleges by applying the provisions of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other backward classes) Act, 1994 being writ petition No. 70062 of 2006 Dr. Vinod Kumar Gupta v. State Of U.P. And Others.

(5) This group has only one writ petition filed by selected candidates to the post of Principals of degree colleges vide the select list dated 15.5.2007 praying for mandamus to give effect to the recommendations dated 15.5.2007 and also praying for a writ of certiorari quashing order of the State Government dated 12.6.2007 by which the State Government had appointed the Divisional Commissioner, Allahabad to hold preliminary inquiry regarding allegations against the selection dated 15.5.2007 as well as praying for quashing the order dated 16.6.2007 of Divisional Commissioner by which certain informations were called from the U.P. Higher Education Services Commission and Director of Education was directed not to give any posting in pursuance of the select list dated 15.5.2007 being writ petition No. 29524 of 2007, Bharat Singh and others v. State of U.P. Thru’ Principal Secretary Higher Edu. and others.

2. Background facts giving rise to all these writ petitions are; there are large number of post-graduate and degree colleges situate in State of U.P. affiliated to a university governed by U.P. State Universities Act, 1973 (hereinafter referred to as ‘1973 Act’) (There are post-graduate and degree colleges which are exclusively maintained by the State Government which institutions are not subject-matter of dispute in these writ petitions). The selection and appointment in the post-graduate and degree colleges were being made by the committee of management of respective colleges in accordance with the provisions of 1973 Act and the First Statute of the respective universities. The State Government had been receiving complaints regarding favouritism in the selection of candidates. U.P. Higher Education Services Commission Act, 1980 was enacted to establish a service commission for the selection of teachers for appointment to the colleges affiliated to or recognised with the University and the matters connected therewith or incidental thereto. The Commission consists of a Chairman and not less than two and not more than six members to be appointed by the State Government. The management was required to intimate the existing vacancies and vacancies likely to occur during the course of ensuing academic year to the Director and the Director in turn was required to notify the vacancies to the Commission and the





















































































































































































































































































































































































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