REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.       2351           OF 2011 (Arising out of SLP (C) No.25966 of 2008)

State of U.P. & Ors. …Appellants

Versus

Bharat Singh & Ors. …Respondents

With Civil Appeal Nos.     2352-2361       of 2011 (Arising out of SLP (C) Nos.27077, 27522-27524, 27526- 27528, 27530-27531 of 2008 and No.455 of 2009

With  

T.P. (C) Nos.3 and 1136 of 2009

Contempt Petition (C) No.32 of 2009 in SLP (C) No.25966 of  2008

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals arise out of a judgment and order dated  

7th August 2008 passed by the High Court of Allahabad  

whereby the High Court has allowed the writ petitions filed  

by the selected candidates, quashed the orders under  

challenge in the same and by a mandamus directed the  

Director, Higher Education to give effect to the  

recommendations made by the U.P. Higher Education  

Service Commission for appointment to the post of Principals  

in aided/affiliated Degree and Post-Graduate colleges.  The  

High Court has further directed issue of placement orders in  

favour of the selected candidates without any delay.  The  

2

facts giving rise to the filing of the petitions may be  

summarized as under:

3. The Government of U.P. has established what is known  

as ‘Uttar Pradesh Higher Education Services Commission’ in  

terms of Section 3 of the U.P. Higher Education Services Act,  

1980. The Commission is, among other functions assigned  

to it under the Act, empowered to prepare guidelines  

touching the method of recruitment of teachers in colleges  

and conduct examinations, hold interviews and make  

selection of candidates for being appointed as teachers and  

make recommendations to the managements concerned  

regarding the appointment of selected candidates. The  

selection process undertaken by the Commission is,  

however, confined only to colleges to which the privileges of  

affiliation or recognition have been granted by the University  

including colleges that are maintained by local authorities.  

Colleges that are maintained by the State Government or  

3

colleges imparting medical education are outside the  

purview of the Act aforementioned. We shall presently refer  

to the provisions of the Act in greater detail but we may at  

this stage only say that in terms of Section 12 of the Act,  

the  Managements of the colleges are required to intimate  

the existing vacancies and the vacancies likely to be  caused  

during the course of the ensuing academic year to the  

Director of Education who is then required to notify to the  

Commission a subject wise consolidated list of vacancies  

intimated to him from all colleges to enable the Commission  

to initiate and undertake the selection process.   

4. Based on the information notified to the Commission in  

terms of the above procedure, a consolidated advertisement  

bearing multiple numbers (33 to 36) was issued by it on 29th  

May 2003 inviting applications for the vacancies mentioned  

in the said advertisement.  A large number of writ petitions  

challenging the said advertisement came to be filed before  

4

the High Court of Allahabad primarily on the ground that the  

post of Principals notified by the Commission available as  

they were in different colleges affiliated to the University  

being single posts in the cadre were not amenable to  

reservation. These writ petitions were entertained by the  

High Court and by interim orders dated 1st September, 15th  

September and 22nd September 2003, directions issued to  

the Commission to the effect that the post of Principals shall  

be treated as non-reserved posts.

5. In compliance with the above directions, the  

Commission issued a fresh advertisement dated 24th  

February 2005 being advertisement No.39 inviting  

applications for 140 posts of Principals, out of which 87  

posts were available in Post-Graduate Colleges while 53  

others were in Degree Colleges.  The advertisement did not  

make any mention about any reservation implying thereby  

that the posts were offered in the general/open merit  

5

category.  The entire selection process was to be subject to  

the ultimate outcome of the writ petitions pending before  

the Allahabad High Court.  It is common ground that interim  

orders dated 1st September 2003, 15th September 2003 and  

22nd September 2003 were challenged before this Court by  

way of SLPs, but the said petitions were dismissed on the  

ground of delay and laches by this Court’s order dated 3rd  

November, 2008.

6. The Commission took nearly two years to complete the  

selection process which culminated in the publication of a  

select list in terms of a notification dated 15th May 2007.  

With the publication of the select list, the batch of writ  

petitions pending before the High Court in   which the  

interim orders mentioned above had been issued was  

dismissed as infructuous.  The High Court while doing so  

noted the submission made on behalf of the Commission  

that there was no cadre of Principals in the Post-Graduate  

6

colleges and the posts of Principals were not interchangeable  

or transferable.

7. In the case of the appellant-State of Uttar Pradesh that  

before appointment orders could be issued to those included  

in the select list, a number of complaints were received by it  

against the selection held by the Commission alleging large  

scale irregularities and malpractices of serious nature in the  

selection procedure and demanding an inquiry into the  

same. The State Government accordingly directed the  

Divisional Commissioner, Allahabad to hold an inquiry into  

the allegations and to submit a report within 15 days.  The  

Divisional Commissioner in turn asked for certain  

information from the Service Commission in connection with  

the inquiry with a copy to the Director, Higher Education  

requesting him to show restraint in issuing the placement  

orders in terms of the recommendations received from the  

Service Commission.  

7

8. Aggrieved by the said communication, the selected  

candidates filed several writ petitions before the High Court  

of Allahabad challenging the notification issued by the  

Government appointing the Divisional Commissioner as an  

inquiry officer and the letter written by him to the Director of  

Education asking him to withhold the issue of placement  

orders in favour of the selected candidates. While the said  

writ petitions were still pending disposal the Divisional  

Commissioner submitted a preliminary inquiry report dated  

6th July 2007 in which he recorded a prima facie conclusion  

that a series of irregularities and malpractices had been  

committed by the Service Commission in the process of  

selection. The High Court in the meantime passed an interim  

order dated 13th July 2007 staying the operation of the  

notification appointing the Divisional Commissioner as an  

inquiry officer with a direction to the respondent to issue  

8

appointment letters to the selected candidates within three  

weeks.  

9. Aggrieved by the interim order referred to above, the  

State filed a special leave petition in this Court in which this  

Court by an order dated 21st August 2007 stayed the interim  

direction in so far as the same directed the Director, Higher  

Education to issue appointment letters in favour of the  

selected candidates. The special leave petition was finally  

disposed by this Court on 12th February 2008 with a request  

to the High Court to dispose of the writ petitions within four  

months.  The interim order issued by this Court on 21st  

August 2007 was continued in the meantime.   

10. Before the High Court, the Government filed a counter  

affidavit to the writ petition stating that there were serious  

infirmities in the process and an indepth inquiry into the  

matter was necessary.  The High Court eventually allowed  

9

the writ petition quashing orders dated 12th June 2007 and  

16th June 2007 impugned therein and issued a mandamus to  

the Director, Higher Education Service Commission to make  

placements in favour of the selected candidates. The present  

appeals assail the correctness of the said orders.

11. We may at this stage point out that by an interim order  

dated 20th November, 2008 passed in these cases this Court  

directed the appellant-State to appoint the selected  

candidates-respondents in these appeals as Principals of  

various aided non-Government degree colleges and post-

graduate colleges within a period of one month subject to  

the decision of these appeals, provided the respondents filed  

undertakings in this Court to the effect that in case they lose  

the battle they will stand reverted to the posts of Readers  

and the difference of salary amount drawn by them as  

Principals recovered and paid back to the State. That  

direction was reiterated by this Court in terms of order dated  

10

23rd April, 2009 whereby this Court directed that although 56  

candidates had already been appointed out of the select list  

in different Degree and Post-Graduate colleges, the direction  

issued by this Court should be complied with in toto within a  

period of one month from the date of the said order. Hearing  

of the SLPs was also directed to be expedited.  It is not in  

dispute that the State has pursuant to the above direction  

appointed the selected candidates upon their filing  

undertakings before this Court with the result that all the  

selected candidates are duly appointed subject to the  

outcome of the present appeals and subject to the  

conditions stipulated in the interim orders mentioned above.

12. Appearing for the appellant-State Mr. Srivastava made  

a two-fold submission in support of the appeals. Firstly, he  

contended that the High Court had fallen in error in quashing  

order dated 12th June, 2007 appointing the Divisional  

Commissioner, Allahabad for holding a preliminary enquiry  

11

into the allegations of malpractices in the selection process  

based on the complaints received by the Government. He  

urged that Section 6(1) of the Uttar Pradesh Higher  

Education Services Commission Act, 1980 empowered the  

State Government to remove from office any member of the  

Service Commission, in situations where the State  

Government considers them unfit to continue in office by  

reason of proved misconduct. The source of power so  

available was according to the learned counsel sufficient for  

the Government to hold an enquiry into the allegations  

regarding the legality and procedural regularity of the  

selection process for it was only on the basis of any such  

enquiry that the Government could determine whether any  

misconduct had been committed by the members of the  

Commission. The Government could on the basis of the  

outcome of the enquiry act against the member responsible  

for such misconduct and irregularity and/or refuse to  

approve the end result of the selection process. The  

12

preliminary enquiry, therefore, had the sanction of law,  

argued the learned counsel and could not be cut short by  

the High Court in the manner it has done.   

13. Mr. Srivastava further contended that even if Section 6  

is given a restricted interpretation its rigors are confined to  

the removal of the members of the Commission from office  

and do not extend to the holding of an enquiry into the  

validity of the selection process, yet the general executive  

power vested in the State Government under Article 154 of  

the Constitution of India was wide enough to entitle the  

Government to institute such an enquiry in cases where  

allegations of rampant corruption, malpractice and the like  

vitiating the selection process are made. Relying upon the  

pronouncements of this Court it was urged that no candidate  

had a right to seek an appointment simply because he has  

been empanelled for such an appointment.  In cases where  

the State has serious, reservations about the fairness of the  

13

selection process and where allegations casting a cloud on  

the legality and propriety of the procedure have been made,  

the State could not refuse an enquiry nor could any such  

enquiry be struck down and appointments ordered having  

regard to the compelling need for maintaining absolute  

purity in the selection process leading to such appointments.  

14. Secondly, it was argued that the High Court was wrong  

in disposing of writ petition Nos. 39369/2003, 39370/2003,  

48621/2003, 41191/2003, 52411/2003, 70062/2003,  

42992/2003, 41345/2003 and 38714/2003 as infructuous.  

The High Court had ignored the fact that the issue of  

advertisement No.39 pursuant to the interim direction of the  

High Court and the selection process concluded on the basis  

thereof was subject to the outcome of the said writ petitions.  

Mere issue of a fresh notification in compliance with the  

order passed by the High Court or the completion of the  

selection process did not render the writ petitions  

infructuous, for the question whether the posts of Principals  

14

were subject to reservation had to be answered by the High  

Court which it had omitted to do. It was further argued that  

the High Court had not only ignored the decision of a  

coordinate Bench in Onkar Dutt Sharma and Ors. v. State  

of U.P. and Ors. (2001) 1 SAC 505, but failed to  

satisfactorily address the question whether the post of  

Principals constituted a cadre and was, therefore, amenable  

to reservation in terms of The Uttar Pradesh Services  

(Reservation for Scheduled Castes and Scheduled Tribes and  

other Backward Classes) Act, 1994.  It was contended that  

the provisions of the Uttar Pradesh Higher Education Service  

Commission Act, 1980 had the effect of clubbing posts of  

Principals in different affiliated colleges and once such  

clubbing was statutorily prescribed for purposes of process  

of selection and recommendations for appointment, the said  

posts could be treated as a part of one single cadre to which  

provisions of Reservation Act, 1994 would apply.

15

15. Mr. Dinesh Dwivedi learned, senior counsel appearing  

for the management who are interveners in SLP  

No.27077/2008 contended that the expression “cadre”  

appearing in the Reservation Act, 1994 had to be interpreted  

liberally. So interpreted Uttar Pradesh Higher Services  

Commission Act had the effect of bringing about a cadre of  

Principals in aided and affiliated Degree and Post-Graduate  

institutions argued the learned counsel. He further  

submitted that several features supported the caderisation  

of the posts in such institutions. For instance the salary of  

the incumbent Principals in such institutions was paid by the  

State Government. Reference in this regard was made by  

him to Sections 60-A, 60-B, 60-D and 60-E of the Uttar  

Pradesh State Universities Act, 1973. It was argued that the  

clubbing of posts for conduct of a common selection process  

under 1980 Act (supra) and the fact that the power of  

appointment against the said post was effectively with the  

Director having regard to the provisions of Sections 12 and  

16

13 of the Act was also a significant feature that indicated  

that the posts comprised a single cadre of Principals.  The  

posts of teachers were also interchangeable subject to  

certain conditions and restrictions. The fact that the terms  

and conditions of service of the employees were the same  

under the relevant rules stipulated by the affiliating  

universities and the retirement and termination was not in  

the hands of the managements also suggested, according to  

the learned counsel, that the posts of Principals constituted  

a single cadre. Mr. Dwivedi also drew support from the fact  

that posts of Principals of secondary schools were excluded  

from the rigors of reservations while the Degree and Post-

Graduate institutes did not enjoy any such immunity. The  

difference between the two provisions was, according to Mr.  

Dwivedi, significant and showed that wherever reservation  

was not intended to apply to the post of Principals as in the  

case of secondary schools, a specific provision to that effect  

was made in the statute.   

17

16. On behalf of the respondents Mr. P.S. Patwalia, senior  

counsel, argued that the enquiry instituted by the  

Government into the validity of the selection process was  

motivated by political considerations. He urged that selection  

process having been completed by the Commission during  

the previous regime the same was not found palatable by  

the successor Government in the State of Uttar Pradesh who  

contrived to subvert the entire exercise on one pretext or  

other.

17. Mr. Patwalia further submitted that there was no real  

basis for the Government to institute an enquiry into the  

validity of the selection especially when the allegations were  

totally vague, unfounded and imaginary containing an  

appeal to the Government to intervene on caste and  

community considerations rather than any concrete evidence  

regarding the commission of any malpractices. He drew our  

18

attention to the order passed by the High Court to show that  

the State Government had failed to come out with a specific  

statement that it intended to conduct any further enquiry or  

proceedings in the matter. The High Court was, therefore,  

justified in quashing the preliminary report submitted by the  

Divisional Commissioner especially because the Government  

did not, according to the learned counsel, have the power  

under Section 6 of the Uttar Pradesh Higher Education  

Services Act to nullify a validly concluded selection process.  

He refuted the contention that the Government could  

exercise its general executive power under Article 154 of the  

Constitution and submitted that no such argument was ever  

urged before the High Court.  

18. Mr. Patwalia further contended that the provisions of  

the Uttar Pradesh Higher Education Services Commission Act  

did not have the effect of bringing about a cadre of  

Principals and termed the submissions made to that effect to  

19

be wholly fallacious. He submitted that the minimum  

requirement for holding that a cadre exists in any given  

service is that those who constitute a part of a given cadre  

must have a common employer.  This requirement was not  

satisfied in the instant case as the employer of each one of  

the Principals was the management of the college  

concerned. The posts of the Principals were not  

interchangeable or transferrable under the Rules except with  

the mutual consent of the incumbents and the management  

under whom they were serving. The question whether a  

cadre existed in such circumstances was, according to Mr.  

Patwalia, concluded by the decision of this Court in  Balbir  

Kaur and Anr.  v.  Uttar Pradesh Secondary Education  

Services Selection Board, Allahabad and Ors. (2008) 12  

SCC 1.   

19. Mr. Pallav Shishodia and Mr. V. Shekhar, senior  

counsels who appeared for some of the respondents also  

20

adopted the arguments advanced by Mr. Patwalia that there  

was nothing in the provisions of the Uttar Pradesh Higher  

Education Services Commission Act or the Reservation Act of  

1994 for that matter to suggest that the Legislature ever  

intended to create a cadre of Principals serving under  

different managements. The only purpose underlying the  

two legislations, according to the learned counsel, was to  

provide a unified mechanism for selection of suitable  

candidates for appointment as Principals to ensure that  

appointments are made on a fair and transparent basis.  The  

State considered that to be necessary not only in the  

interests of getting the best candidates for the institutions  

that were affiliated to the universities and were serving a  

laudable public purpose but also because the salary payable  

to those appointed against such vacancies was reimbursed  

to the institutions by the State.   

20. Two questions fall for our determination, these are :

21

(i) Whether the High Court was justified in quashing the  

appointment of the enquiry officer appointed to look into  

the allegations of malpractice allegedly committed in the  

course of selection process and  

(ii) Whether the posts of Principals in different  

affiliated/aided Degree and Post-Graduate institutions  

constitute a cadre and are, therefore, subject to  

reservation as prescribed under the provisions of the  

Reservation Act of 1994.

21. We propose to take up the questions ad seriatim.

Re: Question No.(i)

22. Selection of Principals in affiliated/aided Degree and  

Post-graduate colleges is regulated by the Uttar Pradesh  

Higher Education Services Commission Act, the Rules and  

22

Regulations framed thereunder. The selection process was  

initiated and concluded by the Commission treating the post  

to be open category post pursuant to the interim directions  

issued by the High Court. The select list was also duly  

notified. In the ordinary course recommendations of a  

statutory Commission established for selecting suitable  

candidates as teachers including Principals for the colleges  

ought to get the respect it deserved. The State Government,  

however, appears to have received some complaints on the  

basis of which it initiated an enquiry culminating in the  

submission of a preliminary report finding fault with the  

procedure adopted by the Commission in the conduct of the  

selection process. According to the appellant-State of U.P.  

the allegations made in the complaint were serious in nature  

and deserved to be looked into.  It was urged that the State  

had all the intentions of instituting a further enquiry into the  

matter on the basis of the preliminary report submitted to it.  

The High Court did not think so.  From a reading of the order  

23

passed in W.P. No.29524 of 2007, it appears that the High  

Court had given an opportunity to the learned counsel for  

the State to take instructions whether the Government  

intended to institute any further enquiry in the matter.  

Despite the opportunity learned counsel for the State had  

reported no instructions in the matter. This is evident from  

the following passage appearing in the order passed by the  

High Court:

“On all these dates, we requested the standing  counsel to give the stand of the State Government.  Learned standing counsel informs that he had sent  the information to the State Government but no  instructions have been received by him.”

23. The High Court, therefore, proceeded on the basis that  

the Government did not intend to conduct any further  

enquiry into the matter and accordingly quashed the order  

appointing the enquiry officer as also the instructions issued  

by him against the making of the appointments. We consider  

it unnecessary to examine whether the complaints allegedly  

received by the State Government made out a prima facie  24

case for an enquiry into the matter or whether the enquiry  

instituted by the Government was vitiated by any political or  

other considerations.  We would also not like to go into the  

question whether or not the power vested in the State under  

Section 6 of the Uttar Pradesh Higher Education Services  

Commission Act (supra) which the State Government  

purportedly invoked could be invoked by it for purposes of  

undoing the selection process and if could not be, whether  

the general executive power vested in the State under  

Article 154 of the Constitution could be exercised by it to  

institute an enquiry in the facts and circumstances of the  

case. We say so not because the questions were not  

germane to the controversy before us but because any  

enquiry by the State Government whether in exercise of its  

power under Section 6 or in exercise of its executive power  

under Article 154 would only duplicate the exercise which is  

already pending before the High Court in the form of several  

writ petitions in which the aggrieved candidates have raised  

25

issues relating to the validity of the selection process on  

several grounds including those which the State Government  

purports to be looking into on the basis of the complaints  

received by it. We had in that view asked Mr. Srivastava  

whether there was any need for the State Government to  

undertake a parallel exercise especially when the  

examination by the High Court of all matters concerning the  

validity of selection would give an opportunity not only to  

the State Government but also to the aggrieved candidates  

who have been selected to present their respective version  

before it.  If the High Court on the basis of whatever  

material is placed before it by the parties came to the  

conclusion that there was nothing wrong with the selection  

process, any enquiry made by the State would be wholly  

unnecessary. On the contrary, if the High Court came to the  

conclusion that the selection was vitiated by any illegality or  

irregularity, the State Government could exercise its power  

and institute an enquiry for the removal of any member who  

26

may have committed any misconduct by being a party to  

any such illegality or irregularity.  To the credit of Mr.  

Srivastava, we must record that he was agreeable to the  

course of action suggested by us with the only exception  

that the vigilance case that stood registered by the State  

Vigilance Department is allowed to go on to look into the  

criminal angle if any involved in the so-called illegal selection  

conducted by the Commission. In the circumstances,  

therefore, it is unnecessary for us to authoritatively  

determine the question whether the institution of enquiry by  

the State Government was justified and, if so, whether the  

source of power invoked by the Government was indeed  

available to it. We are of the view that in the writ petitions  

filed by the aggrieved candidates before the High Court all  

aspects of the matter shall be open to examination in which  

everyone connected with the selection process would have  

an opportunity to place his/her point of view.  

27

24. We are told that the selected candidates may not have  

been impleaded as parties to the pending writ petitions  

although they are necessary parties having regard to the  

fact that any order that the High Court may pass regarding  

the validity of the selection may affect them adversely. The  

selected candidates who have been appointed on the basis  

of the selection process and who have filed undertakings  

before this Court shall, therefore, be impleaded as parties to  

the pending writ petitions to avoid any technical infirmity in  

the proceedings and any consequent delay in the disposal of  

the matter.  A specific direction to this effect is being issued  

by us in the operative part of this order. Question No.(i) is  

answered accordingly.           

Regarding Question No. (ii)  

25. Uttar Pradesh Higher Education Services Commission  

Act, 1980 was introduced to make the selection of teachers  

28

in Degree and Post-graduate Colleges fair, objective and  

transparent. The statement of objects and reasons for the  

legislation has referred to favoritism in the selection of  

candidates for such colleges and elimination of such  

infirmities from the selection process as one of the  

objectives underlying the enactment.  

26. In terms of Section 4 of the Act, the Commission  

established under Section 3 consists of a Chairman and not  

less than two and not more than four other members to be  

appointed by the State Government satisfying the conditions  

of eligibility stipulated under sub-section (2) and (2-a)  

thereof. Section 11 enumerates the functions of the  

Commission which includes the preparation of guidelines on  

matters relating to the method of recruitment, conduct of  

examinations where considered necessary, holding of  

interviews for making selection of candidates to be  

appointed as teachers and selection of experts and  

appointment of  examiners for such examination. Section 12  

29

of the Act stipulates the process for appointment of teachers  

and inter alia provides that appointment of a teacher of any  

college shall be made by the Management only in  

accordance with the provisions of the Act and that any  

appointment made in contravention thereof shall be void.  

Sub-section (2) of Section 12 requires the management of  

the colleges to intimate the existing vacancies and the  

vacancies likely to be caused during the ensuing academic  

year to the Director of Education (Higher Education) in such  

manner as may be prescribed.  Sub-section (3) requires the  

Director to notify to the Commission in the manner  

prescribed a subject wise consolidated list of vacancies  

intimated to him from all colleges.  

27. The manner of selection of persons for appointment to  

the post of teacher of a college has also to be determined by  

regulations.  It is further provided that candidate shall be  

required to indicate their order of preference for the various  

30

colleges, vacancies wherein have been advertised. Section  

13 of the Act requires the Commission to hold interviews  

with or without written examination and to send to the  

Director a list recommending such number of names of  

candidates found most suitable in each subject as may be as  

far as practicable twenty five percent more than the number  

of vacancies in that subject duly arranged in the order of  

merit.  Such a list would then be valid till the receipt of new  

list from the Commission. Sub-section (3) empowers the  

Director to intimate to the Management the name of a  

candidate from the list referred to in sub-section (1) for  

being appointed in the vacancies. Sub-section (6) requires a  

copy of such intimation to be sent to the candidate  

concerned.   

28. Section 14 of the Act enjoins upon the Management to  

issue an appointment letter to the person whose name has  

been intimated to it.  It reads:

31

“14. Duty of Management.- (1) The management  shall within a period of one month from the date of  receipt of intimation under sub-section (3) or sub- section (4) or sub-section (5) of Section 13, issue  appointment letter to the person whose name has  been intimated.

(2) Where the person referred to in sub-section(1)  fails to join the post within the time allowed in the  appointment letter or within such extended time as  the management may allow in this behalf, or where  such person is otherwise not available for  appointment, the Director, shall on the request of  the management intimate fresh name from the list  sent by the Commission under sub-section(1) of  Section 13 in the manner prescribed.”

29. Section 15 entitles the person recommended for  

appointment but not so appointed by the management to  

approach the Director for issue of an appropriate direction  

under sub-section (2).  Director is under the said provision  

empowered to hold an inquiry and to pass an order requiring  

the management to appoint the applicant as a teacher and  

to pay to him the salary from the date specified in the order.  

32

30. The Government has in exercise of its power under  

Section 32 and Section 31 of the Uttar Pradesh Higher  

Education Services Commission Act, 1980 framed what are  

known “Uttar Pradesh Higher Education Services  

Commission Rules, 1981” and “Uttar Pradesh Higher  

Education Services Commission (Procedure for Selection of  

Teachers) Regulations, 1983”. While the Rules  

aforementioned deal with the constitution of the  

Commission, disqualification of the members, investigation  

into misconduct of members, staff etc. the Regulations  

referred to above deal with matters like qualifications and  

experience for appointment as teacher, determination and  

intimation of vacancies, procedure for selection and the like.  

31. A careful reading of the provisions of the Act, the Rules  

and the Regulations referred to above do not support the  

theory propounded by Mr. Srivastava and Mr. Dwivedi that  

the same by a fiction of law create a cadre of principals  

33

either for the purpose of applying reservation or otherwise.  

As seen earlier the object underlying the legislation was  

limited to ensuring a combined process of selection that  

would save time and expense involved in such selections if  

the same are made individually for each college. It is also  

intended to remove the element of arbitrariness and other  

malpractices that were noticed in the making of such  

selections and appointments by the institutions if left to  

themselves. The setting up of the Statutory Commission,  

appointment of persons qualified for the same, stipulating  

the terms and conditions of service of those appointed and  

the power to remove the members for misconduct and  

laying down the procedure for appointment of teachers are  

all meant to ensure that the process of selection is free from  

mal-practices that were generally associated with such  

process when handled by the institutions. There is nothing in  

the Act, the Rules and Regulations, to even remotely,  

suggest that the legislature intended to create a cadre of  

34

principals even where none existed earlier either for  

purposes of reservation or otherwise.  

32. The fact that the management was required to  

communicate the available vacancies to the Director of  

Higher Education or that an appointment order must be  

issued, once the selection process is completed and a  

candidate is recommended for appointment also does not in  

our opinion have the effect of creating a cadre of principals.  

All that the said provision is intend to achieve is to ensure  

that the vacancies are referred to the Statutory Commission  

to enable it to conduct the process of selection and once the  

process is completed and recommendations made, the  

management do not refuse appointment to the candidate  

considered best for the post.   

33. The power vested in the Director to hold an enquiry  

and to issue directions for payment of salary, in case the  

35

management does not appoint, is also meant to be a step in  

aid of the process of selection and appointment giving  

primacy to the opinion of the Commission regarding the  

merit and suitability of the candidate for such appointment  

and entitling the candidate to claim salary if the  

appointment is unjustifiably denied to him.  Suffice it to say  

that the provisions of the Act and the Regulations do not  

have anything to do with creation of a cadre of Principals nor  

can the commonality of the selection process be confused  

with the caderisation of the post of Principals.

34. That brings us to the question whether similarity of the  

terms and conditions of the employees serving in the  

aided/affiliated colleges and the effect the payment of salary  

due to such teachers is reimbursed by the State Government  

would have the effect of creating a cadre of Principals. Our  

answer is in the negative. The fact that the State  

Government offers financial aid to the affiliated colleges in  

36

terms of payment of salary of those serving such institutions  

does not in our opinion have any relevance to the question  

whether the posts of Principals in different colleges under  

different managements constitute a cadre. Merely because  

the Government supports the institutions which are in all  

other respects autonomous in their functioning, and are  

managed by individual managements cannot by any stretch  

of reasoning be taken as a circumstance constituting the  

posts in such colleges into a single cadre.  So also the fact  

that the terms and conditions of service of such teachers  

serving in different colleges including Principals are similar  

on account of such colleges being affiliated to the same  

university and being governed by the same set of Statutes,  

Rules and Regulations also does not have anything to do  

with the creation or the existence of a single cadre  

comprising such posts.  There is no gainsaying that such  

common features do not in any way impinge upon the  

autonomous character of such institutions nor does payment  

37

of salaries and the similarity of conditions of service of the  

employees provide a test for holding that although serving in  

different institutions totally independent of each other the  

Principals appointed in such institution form a common  

cadre.

35. It was also contended on behalf of the respondents,  

that the power of appointment effectively rests only with the  

Director of Higher Education and that managements have no  

option but to comply with the directions in that regard.  This  

according to the respondents suggests that the Director of  

Education is the real employer and the management of the  

institutions in which such appointments are made only carry  

out a ministerial duty that does not clothe them with the  

character of being the true employers. We see no merit even  

in that contention.  It is true that in terms of Section 14 of  

the Act, managements are required to issue an appointment  

letter to the person whose name has been intimated to it but  

38

any such obligation flowing from Section 14 does not make  

the State Government the employer of the person  

appointed.  It is evident from a plain reading of Section 14  

that the appointment letter has to be issued only by the  

management. There is no provision empowering the Director  

to do so.  This implies that the selected candidate is taken  

into the employment of the institution only when the  

management of the institution issues in his favour a letter of  

appointment.  It is manifest that the appointing authority  

even under the scheme of the Act remains the management  

of the institutions. The provisions of the Act simply make  

sure that the management makes an appointment only of  

the persons selected for the post and no more. The  

authorities under the Act do not substitute themselves as  

the employer of the person appointed.

36. Last but not the least is the fact that the post of  

Principals in different aided/affiliated institutions is not  

39

transferable or interchangeable. Interchangeability of the  

post and transferability of incumbents to another post in the  

same cadre are essential attributes of a cadre, which is in  

the instant case absent.  Reference in this connection may  

be made to the Uttar Pradesh Higher Education Aided  

Colleges Transfer of Teachers Rules, 2005 framed by the  

State Government in exercise of its powers under Section 32  

of the U.P. Higher Education Services Commission Act, 1980.  

Rule 4 of the said Rules is in this regard relevant and may  

be extracted:

“4(1) Teachers appointed on regular basis and  holding lien as permanent teachers shall be entitled  to transfer after 10 years of service only once in the  whole service period.   

(2) The transferred teacher shall become the  employee of the college to which he has been  transferred as his service conditions shall be  governed by the statutes of the University  concerned.

(3) The protection of salary of the teacher shall be  admissible but the service rules of the new  employers shall be applicable, to such teacher.

40

(4) The transferred teacher, shall be the junior most  teacher of his cadre working on the date of his  joining in the college concerned.

(5) The teachers shall be transferred against such  posts for which salary is paid from the salary  payment account.   The management of the college  before giving its consent to any teacher, shall ensure  that no enquiry or any proceeding is pending against  the teacher concerned and the post to which he has  been considered to be appointed by transfer shall not  be advertised by the Uttar Pradesh Higher Education  Services Commission.

(6) The transfer application for single/mutual  transfers from one college to other shall be  submitted to the Director, High Education through  the management legally construed and approved by  the University along with the written consent of both  the two management.  The Director, High Education  shall submit his recommendations to the  Government within one month from the date of  receipt of the application within one month from the  date of receipt of the application.  The Government  shall take decision either on the basis of  recommendation of the Director or on its own.

(7) No travel Allowance shall be admissible to the  teachers against such transfers.

(8) The Manager of the former institution shall send  its service book, Character Rolls, Leave Account,  G.P.F., Group Insurance account and last pay  certificate counter signed by the District Inspector of  Schools/Regional Higher Education Officer, as the  case may be, to the Regional Higher Education  Officer of the Region concerned and to the Director,  Higher Education.”

41

37. It is evident from the above that there is no power  

vested in the State Government or any other authority for  

that matter to transfer the Principal from one institution to  

another institution as it may do for instance in the case of  

Government run institutions where Principal from one  

government college may be transferred to another  

government college in the same cadre.  Sub-rule (1) of Rule  

4 (supra) does not talk about the power of transfer vested in  

any authority. It talks about entitlement of a permanent  

teacher to be transferred after 10 years of service only once  

in the whole service period.  Sub-rule (2) provides that the  

transferred teacher shall become an employee of the college  

to which he has been transferred. More importantly sub-rule  

(4) makes the transferred teacher go to the bottom of the  

cadre to which he may be transferred. That provision may  

not make much sense when it comes to transfer of a  

Principal from one college to another but it certainly shows  

that even when there are plurality of posts in the cadre  

42

lower than the principal the person transferred from another  

institution would figure at the bottom of the said cadre. This  

again is a circumstance which negates the theory of  

Principals being a part of the same cadre.

38. Similarly in terms of sub-rule (5) the management of  

the college has to ensure that no enquiry or any proceeding  

is pending against the teacher concerned before giving its  

consent for the transfer of the teacher.  This means that the  

institutions may refuse to relieve a teacher even when he  

may like to be transferred, should an enquiry be pending  

against him.  Sub-rule (6) envisages that the transfer can be  

made only by mutual consent.

39. It is abundantly clear from the above that the attribute  

of interchangeability and transferability is missing in the  

case of Principals – in much the same measure as in the  

case of teachers, in the lower cadre. We have, therefore, no  

43

hesitation in holding that there is no cadre of Principals  

serving in different aided and affiliated institutions and that  

the Principal’s post is a solitary post in an institution.  

Reservation of such a post is clearly impermissible not only  

because the Uttar Pradesh Public Services (Reservation for  

Scheduled Castes, Scheduled Tribes and other Backward  

Classes) Act, 1994 provides for reservation based on the  

‘cadre strength’ in aided institutions but also because such  

strength being limited to only one post in the cadre is legally  

not amenable to reservations in the light of the  

pronouncement of this Court to which we shall presently  

refer.  

40. We may before referring to the decisions of this Court  

on the question whether a single post can be reserved,  

notice the decision of this Court in  Balbir Kaur’s case  

(supra) relied upon by Mr. Patwalia. That was also a case  

from the State of U.P. It related to appointment of a  

44

Principal under the U.P. Secondary Education Services  

Commission and Selection Boards Act, 1982. One of the  

questions that fell for consideration was whether the post of  

Principal in institutions offering secondary education was  

amenable to reservation having regard to the Reservation  

Act of 1994 referred above. This Court answered the  

question in the negative and gave two reasons in support of  

that conclusion.  Firstly, the Court found that Section 10 of  

the U.P. Secondary Education Services Commission and  

Selection Boards Act, 1982 expressly excluded the post of  

Principal from the purview of the Reservation Act of the year  

1994. Secondly and more importantly the post of Principal in  

an educational institution being a single post in the cadre  

such a post was held not amenable to reservation for any  

such reservation would amount to making a 100%  

reservation which was found impermissible under Articles 15  

and 16 of the Constitution.  Relying upon the decision of this  

Court in Dr. Chakradhar Paswan v. State of Bihar & Ors.  

45

(1988) 2 SCC 214 and  Post Graduate Institute of  

Medical Education & Research, Chandigarh v.  Faculty  

Association & Ors. (1998) 4 SCC 1, this Court held that  

any reservation qua a single post cadre either directly or by  

the device of rotation of roster was not valid.  The Court also  

held that since the Reservation Act, 1994 did not provide for  

clubbing of all the educational institutions in the State of  

U.P. for the purpose of reservation there is no question of  

clubbing the post of Principals in all the educational  

institutions for the purpose of applying the principles of  

reservation under the 1994 Act. The following passage is in  

this regard apposite:

“it was held that there cannot be any reservation in a  single post cadre and the decisions to the contrary,  upholding reservation in single post cadre either  directly or by device of rotation of roster were not  approved. Besides, as noted above, neither the  principal Act, nor the Rules made thereunder or the  1994 Act provide for clubbing of all educational  institutions in the State of U.P. for the purpose of  reservation and, therefore, there is no question of  clubbing the post of Principals in all the educational  institutions for the purpose of applying the principle  of reservation under the 1994 Act.”

46

41. It was argued on behalf of the respondents that while  

Section 10 of the U.P. Secondary Education Services  

Commission and Selection Boards Act, 1982 specifically  

excluded the post of Head of the institution from the process  

of determination of number of vacancies to be reserved for  

candidates belonging to Scheduled Caste, Scheduled Tribes  

and other Backward Classes, no such exclusion was made in  

the case of the 1980 Act that regulates selection for  

appointment to the Degree and Post-degree Colleges.  This  

according to learned counsel for the appellant implied that  

wherever the legislature intended that the post of Principal  

should be excluded from reservation it specifically provided  

so and in case such exclusion was not intended no such  

provision was made. The decision in  Balbir Kaur’s case  

(supra) argued learned counsel for the appellants was on  

that basis distinguishable.  

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42. We do not think so.  It is true that Section 10 of the  

1982 Act which stipulates the procedure for selection of  

candidates for direct recruitment requires determination of  

the vacancies to be reserved for candidates belonging to SC,  

ST and Backward Classes and reference of such vacancies to  

be made to the Commission established under the said Act  

but excluding the post of Principal/Head of the institution  

from the said determination but it is equally true that  

Section 12 of 1982 Act with which we are concerned does  

not require any exercise to be undertaken by the Institutions  

for determining the number of vacancies to be reserved for  

candidates belonging to reserved categories. There is  

consequently no provision by which the post of  

Principal/Head of the institution is excluded from any such  

process. The two provisions in that sense are not  

comparable. In one case the number of vacancies to be  

reserved is required to be determined while in the other no  

48

such requirement has been stipulated. Exclusion of the  

Principal’s post from such determination under the 1982 Act  

cannot, therefore, be overemphasized in the absence of a  

provision requiring a determination of the reserved  

vacancies under Section 12 of the 1980 Act.

43. That apart we repeatedly asked learned counsel for the  

appellant-State and Mr. Dwivedi, learned counsel appearing  

for the managements whether there was any rationale for  

giving a differential treatment to Principals in Degree & Post-

Graduate colleges in the matter of reservation, keeping in  

view the fact that Principals in Secondary Educational  

Institutions were not subject to any such reservation. We  

neither expected nor got any explanation from the learned  

counsel.  The reason was obvious.  If the posts of Principals  

in the secondary school which are much larger in number  

than the Degree and Post-Graduate colleges are not  

amenable to reservation and have been specifically excluded  

49

from that process, there is no earthly reason why posts of  

Principals in Degree and Post-Graduate colleges which are  

relatively fewer in number available in colleges imparting  

higher education ought to be subjected to such reservation.  

What is true in the case of secondary schools would,  

therefore, be true in the case of Degree and Post-Graduate  

colleges also. Any interpretation that may render the legal  

position anomalous or absurd shall, therefore, have to be  

eschewed.  

44. The other reason why we have no difficulty in rejecting  

the contention urged by appellants is the fact that this Court  

has in Balbir Kaur’s case (supra) specifically examined the  

question whether the post of Principals in secondary  

institutions can be reserved independent of the provision by  

which such post are excluded from reservation.  This Court  

held that since the posts of Principals are single post such  

reservation is not permissible qua them. There is no way  

50

that view can be ignored or wished away by the State or the  

managements. Whether or not a single post can be reserved  

is even otherwise fairly well settled by the decisions of this  

Court to which we need refer only briefly.

45. The decision of this Court in Indra Sawhney and Ors.  

v.  Union of India and Ors., 1992 Supp.(3) SCC 217,  

continues to be the locus classicus on the subject of  

reservation. This Court in that case held that reservation  

under Articles 14, 15 and 16 must be applied in a manner so  

as to strike a balance between opportunities for the reserved  

classes on the one hand and other members of the  

community on the other. Such reservation cannot exceed  

50% in order to be constitutionally valid.

46. In  Chakradhan Paswan’s  case (supra) this Court  

relying upon the decision in Arati Ray Choudhury v. Union  

of India 1974 (1) SCC 87, M.R. Balaji v. State of Mysore  

51

AIR 1963 SC 649 and T. Devadasan v. Union of India AIR  

1964 SC 179 held that separate posts in different  

institutions cannot be clubbed together for the purpose of  

reservation and that reservations may be made only where  

there are more than one posts. Reservation of only a single  

post in the cadre would amount to 100% reservation and  

thereby violate Articles 14(1) and 16(4) of the Constitution.

In  Bhide Girls Education Society  v.  Education Officer,  

Zila Parishad, Nagpur and Ors., 1993 Supp (3) SCC 527  

this Court held that a single post of Headmistress of an  

institution could not be reserved as the same would amount  

to making a 100% reservation.  

47. The controversy was authoritatively set at rest by the  

Constitution Bench decision of this Court in Post-graduate  

Institute of Medical Education & Research, Chandigarh  

v.  Faculty Association and Ors.  (1998) 4 SCC 1    case  

(supra) where this Court overruled the decisions of this  

52

Court in Union of India and Anr. v. Madhav s/o Gajanan  

Chaubal and Anr. (1997) 2 SCC 332,  Union of India v.  

Brij Lal Thakur (1997) 4 SCC 278 and State of Bihar v.  

Bageshwari Prasad 1995 Supp (1) SCC 432 and observed:

“34. In a single post cadre, reservation at any point  of time on account of rotation of roster is bound to  bring about a situation where such a single post in  the cadre will be kept reserved exclusively for the  members of the backward classes and in total  exclusion of the general members of the public. Such  total exclusion of general members of the public and  cent per cent reservation for the backward classes is  not permissible within the constitutional framework.  The decisions of this Court to this effect over the  decades have been consistent.

35. Hence, until there is plurality of posts in a cadre,  the question of reservation will not arise because any  attempt of reservation by whatever means and even  with the device of rotation of roster in a single post  cadre is bound to create 100% reservation of such  post whenever such reservation is to be  implemented. The device of rotation of roster in  respect of single post cadre will only mean that on  some occasions there will be complete reservation  and the appointment to such post is kept out of  bounds to the members of a large segment of the  community who do not belong to any reserved class,  but on some other occasions the post will be  available for open competition when in fact on all  such occasions, a single post cadre should have been  filled only by open competition amongst all segments  of the society.”

53

48. In the light of the above decision, we have no  

hesitation in holding that the post of principals in each one  

of the aided/affiliated institution being a single post in the  

cadre is not amenable to any reservation. Question No.(ii) is  

accordingly answered in the affirmative.

49. Mr. Patwalia, learned counsel for the selected  

candidates then argued that if the High Court was correct in  

holding that the provisions of 1994 Act regulating  

reservation of vacancy did not apply to the post of Principals  

in different affiliated/aided Degree and Post-Graduate  

colleges, there was no reason why the undertakings  

furnished by the selected candidates to this Court as a step  

in aid of their appointments should not be discharged and  

the selected candidates allowed to assume office on a  

substantive basis subject to any direction which the  

competent Court may issue as regards the validity of the  

54

selection process and the consequent appointments.  He  

urged the State Government was not releasing in favour of  

the appointed candidates the full benefits of such  

appointments in the form of increments and allowances etc.  

only because the appointments made were subject to the  

outcome of these proceedings and the undertaking furnished  

by the candidates. Alternatively, he urged that even if the  

appointments made by the State pursuant to the directions  

of this Court were to remain incohate and subject to the  

outcome of the writ petitions before the High Court there  

was no reason why dues legitimately payable to the selected  

candidates should not be directed to be released on such  

conditions as the Court deem fit and proper.

50. On behalf of the State and the management it was per  

contra argued that the release of any further benefits to the  

selected candidates could await the disposal of the writ  

55

petitions pending before the High Court which disposal could  

be expedited in the interest of all concerned.   

51. The view taken by the High Court in so far as the  

applicability of reservation to single posts of Principal in the  

affiliated and aided institutions has been affirmed by us  

while answering question No.(ii) above. To that extent the  

controversy is being given a quietus. All the same the  

question whether there were any malpractices and if so  

whether the selection process could be nullified by the State  

Government in exercise of its power under Section 6 of the  

1980 Act or Article 154 of the Constitution has been left  

open by us in the light of the fact that the question  

regarding legality of the selection process is pending  

adjudication before the High Court where all parties  

concerned would have an opportunity to present their  

respective cases. A parallel enquiry at the Government level  

into those questions has been held by us to be unnecessary.  

56

There is, therefore, no final adjudication of the dispute  

between the parties in so far as the validity of the selection  

process is concerned. Such being the case we do not  

consider it necessary to relieve the appointed candidates of  

the obligations flowing from the undertaking given by them  

subject to which only the appointments were allowed to be  

made. This may not, however, mean that the appointed  

candidates will not be entitled to claim full benefit of the  

post admissible to the incumbent to which they have been  

appointed during the period such appointments continue to  

remain in force. The directions under which the  

appointments were allowed to be made also did not permit  

the State to withhold benefits legitimately flowing from such  

appointments.  If any additional financial benefits by way of  

allowances become payable to the appointed candidates the  

same must be allowed to be drawn by them. Enjoyment of  

all such benefits would also remain subject to the  

undertakings which the appointed candidates have filed  

57

before this Court.  

52. An apprehension was expressed before us that the  

matter may continue languishing in the High Court for a long  

time especially because of the failure of the writ petitioners  

before the High Court in impleading the selected candidates  

as parties.  It was submitted that orders for addition of the  

selected candidates could be passed by this Court to allay  

any such apprehensions.  We see no impediment in passing  

appropriate orders in that regard, especially when, none of  

the parties before us were opposed to any such orders  

impleading the selected candidates as party respondents to  

the pending writ petitions before the High Court.   

53. In the result we dispose of these appeals with the  

following directions:

58

(1) The impugned orders passed by the High Court to the  

extent the same hold that the posts of Principals in  

affiliated/aided colleges are not amenable to reservation are  

affirmed.

(2) Order dated 12th June, 2007 issued by the Government  

appointing the Divisional Commissioner, Allahabad as an  

Enquiry Officer to hold an enquiry into the validity of  

selection process and the report submitted by the said  

Enquiry Officer shall stand quashed and the order passed by  

the High Court to that effect affirmed.

(3) The question whether the Government was competent  

to direct an enquiry into the validity of the selection process  

under Section 6 of the Uttar Pradesh Higher Education  

Services Commission Act, 1980 or under Article 154 of the  

Constitution is left open in view of the pendency of the writ  

petitions challenging the validity of the selection process  

before the High Court.   

59

(4) The High Court shall in the writ petitions pending  

before it be free to examine all issues regarding the  

selection process in question including the validity of the  

procedure followed in making the same.  Depending upon  

whether the High Court finds the selection process to be  

valid or otherwise the Government shall have the liberty to  

institute an enquiry against the members of the State  

Services Selection Commission if such enquiry is otherwise  

permitted under law. In case, however, the High Court  

upholds the selection process and dismisses the writ  

petitions there shall be no room left for the State  

Government to embark upon any further enquiry into the  

matter on the administrative side. The aggrieved party shall  

be free to challenge the view taken by the High Court in  

appropriate proceedings in accordance with law.

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(5) The selected candidates who have filed undertakings in  

this Court and have been appointed to the posts of Principals  

pursuant to the orders of this Court shall stand impleaded as  

parties to each of the writ petitions pending in the High  

Court and challenging the selection process.  The selected  

candidates shall based on this direction appear before the  

High Court on 2.5.2011 without any further notice in each  

one of the petitions and file their counter-affidavits.  Failure  

on the part of the candidates to do the needful shall be  

suitably dealt with by the High Court who shall be free to  

proceed ex-parte, against those who fail to comply with this  

direction.

(6) In order to expedite the hearing of the case the Chief  

Justice of the High Court of Allahabad is requested to place  

the writ petitions before a Division Bench of the High Court  

for an early hearing and disposal as far as possible before  

the 1st December, 2011.

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(7) Pending disposal of the writ petitions by the High Court  

the selected candidates shall be entitled to receive their pay  

and allowances including increments etc. otherwise  

admissible to the post of Principal as if the appointments  

were made on a valid and substantive basis. Such benefits  

flowing from the same shall, however, be subject to the  

outcome of the writ petitions before the High Court and the  

undertakings furnished by the appointed candidates to this  

Court which undertaking shall be deemed to have been  

continued till such time the writ petitions are finally disposed  

of.

54. The parties shall bear their own costs.                        

             ……………………..………J. (V.S. SIRPURKAR)

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……………………..………J. (T.S. THAKUR)

New Delhi March 8, 2011

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