Dr. Sanjay Kumar Mishra vs State Of U.P. & Ors.

Facts of the Case

Preliminary Objection

“36.

The doctrine of legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it. The public authority has the discretion to exercise the full range of choices available within its executive power. The public authority often has to take into consideration diverse factors, concerns, and interests before arriving at a particular policy decision. The courts are generally cautious in interfering with a bona fide decision of public authorities which denies a legitimate expectation provided such a decision is taken in the larger public interest. Thus, public interest serves as a limitation on the application of the doctrine of legitimate expectation. Courts have to determine whether the public interest is compelling and sufficient to outweigh the legitimate expectation of the claimant. While performing a balancing exercise, courts have to often grapple with the issues of burden and standard of proof required to dislodge the claim of legitimate expectation.”

“33.

From the pleadings on the records and submissions made by the learned counsel for the parties, following points arise for consideration:-

33.1.

Whether the respondent writ petitioners who had participated in the selection were estopped from challenging the selection in the facts of the present case?

33.2.

Whether the respondent writ petitioners could have challenged the criteria of selection applied by Commission for selection after they had participated in the selection?

33.3

Whether the decision dated 30.06.2008 to cancel the written examination and the decision dated 11.07.2008 to call the candidates for interview 8 times number of vacancies on minimum percentage of marks as fixed therein and the decision dated 31.07.2008 to call all the eligible candidates for interview were arbitrary decision to change selection criteria published on 28.12.2006, which have effect of downgrading the merit in the Selection?

33.4.

Whether it was obligatory for the Commission as a body to take all decisions pertaining to Selection on the post of PTI including the decision of not holding written examination, decision to screen on the basis 8 times of vacancies and decision to call all eligible candidates and whether aforesaid decisions were taken by the Chairman alone?

33.5.

Whether on 03.08.2008, a decision was taken by the commission fixing the criteria for the selection on the post of PTI which was signed by all the members on 03.08.2008 as claimed by the Commission?

33.6.

Whether without there being any specific allegations of mala fide against the Chairman and members of the Commission and without they having been impleaded by name as party respondents, the writ petitioners could have challenged the allocation of marks in viva- voce and High Court was right in accepting the claim that candidates who got highest marks for academic qualifications ranging between 40 to 48.74 marks have been awarded just 7 to 9 marks in the viva-voce and as against it there are hundreds of selected candidates who have been awarded 20 to 27 out of 30 marks in the viva-voce to ensure that they outclass the academically bright candidates?

33.7.

Whether no fresh selection can be held as directed by learned Single Judge since as per 2012 Rules, the post of PTI has been declared as a dying cadre and the post has merged into the post of TGT Physical Education?

38.

Learned counsel for the appellant at very outset contended that the writ petitions filed by the respondent challenging the select list dated 10.04.2001 ought not to have been entertained by the High Court since the respondent having participated in the selection without any demur or protest, they are estopped from challenging the selection. The submission is refuted by the respondent contending that the above principle of estopple is not applicable in the facts of the present case. The petitioner being not even aware of the criteria, which was to be applied for selection, which they came to know only after select list was published, there was no occasion to make any challenge by the respondents before the above date.

39.

The preposition that a candidate, who participates in a selection without a demur taking a calculated chance to get selected cannot turn around and challenge the criteria of selection and the constitution of the selection committee is well settled. The appellants have placed reliance on judgment of this Court in Madan Lal and Others Vs. State of J&K and Others, (1995) 3 SCC 486; K.A. Nagamani Vs. Indian Airlines and Others, (2009) 5 SCC 515; Manish Kumar Shahi Vs. State of Bihar and Others, (2010) 12 SCC 576; Madras Institute of Development Studies and Another Vs. K. Sivasubramaniyan and Others, (2016) 1 SCC 454 and Ashok Kumar and Another Vs. State of Bihar and Others, (2017) 4 SCC 357.

40.

In Madan Lal and Others(supra), this Court laid down following in paragraph 9:-

“9.

……….It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.”

41.

The above preposition has been reiterated in other judgments of this Court noted above. In the present case, whether the respondents-writ petitioners are estopped from challenging the selection? While noticing the facts of the case, we have noted above that both appellants and the respondents had submitted applications in pursuance of advertisement dated 28.07.2006 No.6/2006. In advertisement, it was provided that the Commission may shortlist the candidates for interview by holding a written examination or on the basis of a rational criteria to be adopted by the Commission. The Commission on 28.12.2006 published the criteria for calling the candidates for interview. Notice dated 28.12.2006 provided that written examination shall be held for post of PTI on 21.01.2007, on 100 objective type multiple choice questions, each question carrying two marks. The notification also prescribed the minimum qualifying marks- 50% for General category, SC BC and ESM 45% and 25% marks was assigned to the viva voce. The above criteria was implemented and written examination was conducted on 21.01.2007, which examination was cancelled citing complaints regarding malpractices in the written examination.

42.

Further notice dated 11.06.2008 was published fixing 20.07.2008 for written examination as per criteria earlier notified. Before the above examination could take place, by public notice dated 30.06.2008, it was cancelled. Another public notice dated 11.07.2008 was published where Commission decided to shortlist eight times the candidates of the advertised post with minimum weightage secured in each category. The said shortlisting was also given up by notice dated 31.07.2009 when it was decided to call all eligible candidates for interview. Commission did not publish any criteria or marks on the basis of which interview was to be held. The criteria, which was published by the Commission on 28.12.2006, 11.06.2008 and 11.07.2008 were given up step by step and no criteria was published for interview, which was scheduled to take place in from 2nd September to 17th October, 2008. When Commission had not published any criteria on the basis of which candidates were going to be subjected for selection process and the candidates participated in the selection without knowing the criteria of selection, they cannot be shut out from challenging the process of selection when ultimately they came to know that Commission step by step has diluted the merit in selection. When candidate is not aware of the criteria of selection under which he was subjected in the process and the said criteria for the first time is published along with final result dated 10.04.2010, he cannot be estopped from challenging the criteria of selection and the entire process of selection. Further when the written examination as notified earlier was scrapped and every eligible candidate was called for interview giving a go bye to a fair and reasonable process for shortlisting the candidates for interview, that too only by Chairman of the Commission whereas decision regarding criteria of selection has to be taken by Commission, the candidates have every right to challenge the entire selection process so conducted. This Court in Raj Kumar and Others Vs. Shakti Raj and Others, (1997) 9 SCC 527 held that when glaring illegalities have been committed in the procedure to get the candidates for examination, the principle of estoppel by conduct or acquiescence has no application.

43.

Referring to judgment of this Court’s judgment in Madan Lal (supra), this Court laid down following in paragraph 16:-

“16.

…………The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K, (1995) 3 SCC 486 and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law.”

44.

One more judgment of this Court which supports the view taken by the High Court is Bishnu Biswas and others Union of India and others, (2014) 5 SCC 774. An advertisement was published calling applications for appointment to the post of Group D staff. The Recruitment Rules only provided for a written examination having 50 maximum marks. After holding written examination notice was issued calling the successful candidates for interview. Although such interview was not part of the recruitment process, a select list was published which was challenged in the Tribunal. The Tribunal returned a finding that the manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The High Court upheld the reasoning of the Tribunal but modified the order to the extent of continuing the recruitment process from the point it stood vitiated. This Court laid down following in paragraphs 19 and 20:

“19.

In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e. 50% for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while a large number of candidates got equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so-called selected candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would be ineligible at least in respect of age as the advertisement was issued more than six years ago.

20.

Thus, in the facts of this case the direction of the High Court to continue with the selection process from the point it stood vitiated does not require interference. In view of the above, the appeals are devoid of merit and are accordingly dismissed. No costs.”

45.

The Division Bench of the High Court is right in its conclusion that the selection criteria, which saw the light of the day along with declaration of the selection result could be assailed by the unsuccessful candidates only after it was published. Similarly, selection process which was notified was never followed and the selection criteria which was followed was never notified till the declaration of final result, hence, the writ petitioners cannot be estopped from challenging the selection. We, thus, hold that the writ petitions filed by the petitioners could not have been thrown on the ground of estoppel and the writ petitioners could very well challenge the criteria of selection applied by the Commission, which was declared by the Commission only at the time of declaration of the final result. We, thus, answer point Nos. 1 and 2 as follows:-

(i)

The writ petitioners, who had participated in the selection are not estopped from challenging the selection in the facts of the present case.

(ii)

The writ petitioners could have very well challenged the criteria of selection, which was declared by the Commission only in the final result declared on 10.04.2010.”

“41.

Our examination of the erudite arguments advanced by Mr. Gupta must begin with consideration of the objection to the conduct of the petitioning candidates based on applicability of the principle of ‘estoppel’.

42.

There is a long line of decisions of this Court that candidates who participated in a selection process cannot later challenge the procedure adopted merely because the result is not palatable to them. It has been held there, generally, that the principle of estoppel operates against such a candidate who, having taken a calculated chance of selection by participating in the selection process and failed to secure selection, challenges the process of selection in Court on the ground of a flawed procedure being adopted by the recruiting/selecting authority. Profitable reference may be made to some of the decisions of this Court, viz. G. Sarana v. University of Lucknow, (1976) 3 SCC 585, Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, Madan Lal v. State of Jammu & Kashmir, 1995 (3) SCC 486, K.A. Nagamani v. Indian Airlines, 2009 5 SCC 515, Manish Kumar Shahi v. State of Bihar, 2010 12 SCC 576, Ramesh Chandra Shah v. Anil Joshi, 2013 11 SCC 309 and Ramjit Singh Kardam v. Sanjeev Kumar, 2020 20 SCC 209.

43.

However, this rule is not absolute. As elucidated in Meeta Sahai vs. State of Bihar, (2019) 20 SCC 17, participation of a candidate in a selection process implies acceptance of the prescribed procedure, but not of any illegality in the conduct of the said procedure or constitutional infirmity underlying it. Where the challenge pertains to a misconstruction of statutory rules or violation of constitutional principles, the plea of estoppel cannot operate as a bar.

44.

This distinction was earlier recognised by a Bench of three Judges in Raj Kumar v. Shakti Raj, (1997) 9 SCC 527, where despite participation, the Court held that glaring illegalities in the process rendered estoppel inapplicable.

45.

Having considered the precedents in the field, to our mind, a candidate would be estopped from challenging a selection process post-participation, unless he can show that despite due diligence, he could not have known earlier of the illegality in the procedure that came to be adopted or that the procedural flaw striking at the root of the selection process was hidden and surfaced only after completion of the process of selection; hence, no challenge could have been laid by him prior to his participation in the process.

46.

In the present case, the advertisement was a representation to the aspirants for public employment that category-wise lists would be prepared. None would question such a condition. There was, however, no indication that meritorious reserved category candidates would not be treated as General/Open category candidates even if they outscore the latter. The illegality lies in the action of the appellants in not treating the meritorious reserved category candidates as General/Open category candidates, despite noticing that the former had outperformed and outshone the latter. Since the petitioning candidates could not have possibly visualised such an approach on the part of the recruiters by projecting their own imagination and discover all facts and circumstances that might be in their contemplation to be adopted while drawing up the merit lists at the time they participated in the preliminary written examination, the question of such candidates being estopped from mounting a challenge to the legality of the process does not and cannot arise. The petitioning candidates paid a price for their merit and having challenged the very legality of the process alleging violation of constitutional norms and legal principles, the plea of estoppel could not have defeated such a challenge.

47.

The Division Bench by entertaining the writ petitions and granting relief of the nature noticed above cannot be held to have exercised jurisdiction illegally.”

“76.

In the case of Siraj (supra), the Kerala High Court has observed in para 47 and 48 as under: "47. Mr. Giri had presented an argument that on principles of estoppel, the petitioners had no right to challenge the notification, when they had responded thereto. An after thought of filing a Writ Petition, only when it was found that they could not get through the selection process, could not have been entertained. Adverting to certain decisions, the counsel contended that the discretionary jurisdiction, in the case, should not have been exercised, in favour of persons who were sitting on fence. 48. However, principles of estoppel as such might not be applicable in such matters. In the case of selection, option of an aspirant evidently is limited. If we accept the suggestions of the appellant, the candidate had to take a risk of abstaining from the selection and challenge itat the time of notification. This will be too rigid, not to say impractical, as an objection could be raised that a person who had not even responded to the selection had no locus standi. On this point, we are in agreement with the law laid down by a Division Bench of this Court in Sathi v. Cochin University of Science and Technology, (2000) 2 KLT 871. In appropriate cases, when a candidate finds that there was sufficient justification for him to challenge the process of selection, on grounds available to him, participation in the selection as such would not have annulled his rights, since resort to constitutional remedies could not have been defeated or discarded. The observation contrary to the above principle in Remani's case has to be understood in the above background alone."

77.

In the case of E.P. Royappa (supra), the Hon'ble Supreme Court has observed in para 85 as under: 85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of 14 and 16. Art. 16 embodies the fundamental guarantee that Arts. 14 as there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Art. 14. In other words, Art. 14 is the genus while Art 16 is a species. Art. 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose J., "a way of fife", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any; attempt to truncate its all-embracing scope and meaning, for to do so Would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongsto the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action an (ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be quided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would: amount to malafide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice: in fact the matter comprehends the former. Both are inhibited by Arts'. 14 and 16”.

“16.

It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, observing as follows: (SCC p. 584, para 16) "16. We also agree with the High Court7 that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

17.

However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.”

“4.

Composition of the Board.— (1) The Board shall consist of a chairman and ten members who shall be appointed by the State Government.

(2)

A person shall not be qualified for appointment as chairman unless he—

(a)

is or has been a Vice-Chancellor of any University established by law; or

(b)

is or has been in the opinion of the State Government an outstanding officer or the Administrative service not below the rank of secretary to the State Government or Director of Education, Uttar Pradesh.

(c)

is in the opinion of the state government an eminent person having made valuable contribution in the field of education.

(3)

Of the members,—

(a)

two shall be persons who are educationist having made significant contribution in the field of education;

(b)

two shall be persons who are or have been, in the opinion of the State Government, an outstanding officer of the State Educations Service not below the rank of Additional Director;

(c)

other shall be persons who,—

(i)

have worked as a professor in any university established by law in Uttar Pradesh or as a Reader of any Degree College recognised by or affiliated to such university for a period of not less than ten years; or

(ii)

have worked as a Principal of any institution recognized under the Intermediate Education Act, 1921 for a period of not less than ten years; or

(iii)

are, in the opinion of the State Government, an eminent educationist having made valuable contribution in the field of education.

(iv)

"is interested in the field of Education and a graduate from a recognized University."

(4)

Every appointment under this section shall take effect from, the date on which it is notified, by the State Government."

“9.

Powers and duties of the Board. The shall have the following powers and duties namely:

a. ……

b. ……

c. ……

d. to make recommendations regarding the appointment of selected candidates; ……...”

“10.

Procedure of selection by direct recruitment.— (1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2)

The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed:

Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1).”

“4(6)- The quorum for a meeting shall be one half of the total number of members of the time being:

Provided that no quorum shall be necessary for a meeting adjourned for want of quorum.”

“4(9)(a) - The decision in a meeting shall, as far as possible be unanimous. In case of any difference of opinion, the decision shall be taken by a majority of votes of the members present and voting and if no decision can be taken due to equality of votes, the Chairman or the Vice Chairman or the member presiding over the meeting shall have and exercise a casting vote.

“16.

We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief. Election Commissioner to participate, if not the doctrine of necessity may have to be he invoked.”

“38.

The doctrine of necessity is a common law doctrine, and is applied to tide over the situations where there are difficulties. Law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over. Otherwise, as proposed by Shri Jethmalani one will have to wait for one more year for a new President to be elected, which submission cannot be accepted.”

“15.

There is a doctrine of necessity where under given circumstances an action is required to be taken under compelling circumstances. One of the earlier proponents of the doctrine of necessity in Common Law was William Blackstone, who in his book, Commentaries on the Laws of England, “Book I Of the Rights of Persons”, discusses the meeting of the convention—Parliament before Charles II's return, noting that it was an extraordinary measure taken out of necessity. He describes the use of the doctrine of necessity to justify actions that would otherwise be outside the norm due to the urgent need to restore order. He describes another instance during the Glorious Revolution when the Lords and Commons assembled and acted without the usual royal summons, justified by the extraordinary circumstance of a perceived vacant throne and the urgent need to address the governance of the country.

“It is also true, that the convention—Parliament, which restored King Charles the Second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of England by authority of Parliament: and that the said Parliament sat till the twenty-ninth of December, full seven months after the restoration; and enacted many laws, several of which are still in force. But this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. And the first thing done after the king's return, was to pass an act declaring this to be a good Parliament, notwithstanding the defect of the king's writs. So that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Besides we should also remember, that it was at that time a great doubt among the lawyers, whether even this healing act made it a good Parliament; and held by very many in the negative: though it seems to have been too nice a scruple.

It is likewise true, that at the time of the revolution, AD 1688, the Lords and Commons by their own authority, and upon the summons of the Prince of Orange, (afterwards King William) met in a convention and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon an apprehension that King James the second had abdicated the government, and that the throne was thereby vacant: which apprehension of theirs was confirmed by their concurrent resolution, when they actually came together. And in such a case as the palpable vacancy of a throne, it follows ex necessitate rei, that the form of the royal writs must be laid aside, otherwise no Parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of Lords and Commons, would have a right to meet and settle the government; otherwise there must be no government at all. And upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W & M. st. 1. c. 1. that this convention was really the two Houses of Parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a Parliament.”

16.

The doctrine of necessity has been elucidated by a Constitution Bench of this Court in Charan Lal Sahu v. Union of India [Charan Lal Sahu v. Union of India, (1990) 1 SCC 613, para 105] as follows: (SCC pp. 694-95, para 105)

“105.

The question whether there is scope for the Union of India being responsible or liable as a joint tortfeasor is a difficult and different question. But even assuming that it was possible that the Central Government might be liable in a case of this nature, the learned Attorney General was right in contending that it was only proper that the Central Government should be able and authorised to represent the victims. In such a situation, there will be no scope of the violation of the principles of natural justice. The doctrine of necessity would be applicable in a situation of this nature. The doctrine has been elaborated, in Halsbury's Laws of England, 4th Edn., p. 89, Para 73, where it was reiterated that even if all the members of the Tribunal competent to determine a matter were subject to disqualification, they might be authorised and obliged to hear that matter by virtue of the operation of the common law doctrine of necessity. An adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide may in certain circumstances be required to adjudicate if there is no other person who is competent or authorised to be adjudicator or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In the circumstances of the case, as mentioned hereinbefore, the Government of India is only capable to represent the victims as a party. The adjudication, however, of the claims would be done by the court. In those circumstances, we are unable to accept the challenge on the ground of the violation of principles of natural justice on this score. The learned Attorney General, however, sought to advance, as we have indicated before, his contention on the ground of de facto validity. He referred to certain decisions. We are of the opinion that this principle will not be applicable. We are also not impressed by the plea of the doctrine of bona fide representation of the interests of victims in all these proceedings. We are of the opinion that the doctrine of bona fide representation would not be quite relevant and as such the decisions cited by the learned Attorney General need not be considered.”

17.

The applicability of the doctrine of necessity was further clarified by this Court in Election Commission of India v. Subramaniam Swamy [Election Commission of India v. Subramaniam Swamy, (1996) 4 SCC 104] as follows: (SCC pp. 117-18, para 16)

“16.

We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked.”

18.

In the present case, had the Working President not convened the meeting, the elections of the Executive Body would have been in limbo for an unreasonable amount of time. The convening of the meeting by the Working President upon the requests by the 16 surviving members was a “necessity” at the time.

19.

There is one more aspect of the matter to be discussed here with respect to the duties of the “Working President”. Clause 11 of the Bye-laws recognises a Working President and also defines his rights and duties. The same is reproduced below:

“11. “Working President”—

The Rights and Duties of Working President:

1.

To complete the work as per the written instructions of the President of the Shikshan Prasarak Mandal, the Executive Body of the Mandal and the General Body of the Mandal.

2.

Make efforts from the point of extending the area of operation of the Shikshan Prasarak Mandal.” As per the above clause, the “Working President” was to act on the directions of the President, Executive Body and the General Body. In the present case, the recognition was by almost all the members of the General Body. He had no option but to call for a general body meeting in accordance with the rights and duties conferred upon him.

20.

In the present case, it was not only appropriate but also legal for the surviving members to request for convening a meeting. Further in the present case, as many as 16 members had requested in writing for convening the meeting. If the submission of the objectors is to be accepted that the Working President could not convene the meeting, then no alternative has been suggested by the objectors as to who could convene the meeting. Alternatively, the President and Secretary who were authorised under the bye-laws had died and no election had been held for replacing them. Even the Vice-President and the Joint Secretary had also passed away and they had also not been replaced by any fresh elections. The only person who could be said to be managing the affairs of the Society was the Working President Mr Wasade, and in particular, when all the 16 surviving and valid members had made a request for convening a meeting, no fault could be found with the decision of the Working President Mr Wasade to convene the meeting. The other option could have been that all the 16 members could have themselves nominated any one of the members to chair the meeting of the Executive Body and thereafter they could have proceeded to take appropriate decisions. In such situation, we are of the view that the convening of the meeting for holding the elections on 8-9-2002 cannot be faulted with. Question 1 is answered accordingly in favour of the appellants.”

“(dd)

Where the post advertised under Clause (a) is that of Principal of an institution the two seniormost teachers of such institution in the Lecturer's grade and where the post advertised is that of Headmaster for an institution the two seniormost teachers of such institution in the L.T. Grade who possess the prescribed minimum qualification for such post and have to their credit a mini-mum of ten years continuous service in the respective grade, including the period, if any, during which they have worked temporarily as principal/ Headmaster shall also be entitled to be called for interview for that post even if they do not come within the first seven places under Clause (d).”

“A. Publication of advertisement

B. Preparations of merit list in accordance with the provision mentioned in Clause i to iv of Sub Rule 5 of Rule 12 for short listing the five times candidates.

C. Experience other than mentioned in the Note of Clause iv of Sub Rule 5 of Rule 12 has been excluded.

D. Detail guidelines for providing the marks in interview has been mentioned in Clause v of Sub Rule 5 of Rule 12

E. Thereafter preparation of merit after adding the marks provided in clause iv and v of Sub Rule 5 of Rule 12

F. Sub Rule 7 of Rules 12 provides the non disclosure of the merit.

G. Thereafter panel shall be prepared after considering the options submitted by the candidates in accordance with the provision contained in Sub Rule 8 of Rule 12.

H. Thereafter a detail procedure has been prescribed for allocation of the Institution under Sub Rule 10 of Rule 12. H.

I. Therefore the selection has been made on the basis of the provision contained under Rule 12.”

“From the aforesaid discussions it is clear that once a teacher has attained the age of superannuation, in other words age of 60 years or 58 years, as the case may be, he has no vested right to continue in service. The order of appointment, thus, could not be issued in favour of such teacher though selected for the post by the Commission, after attaining the age of superannuation. In our opinion, the educational authorities as well as committee of management were not justified in issuing the letter of appointment in favour of teacher for the post of Principal who had already attained the age of superannuation. Under no provision of the Act or the Rules or the Regulations such action can be justified as the panel became ineffective and it was not required to be implemented in respect of candidate who had already attained the age of superannuation. The only step required by the authorities of the education department and the committee of management was to issue the letter of appointment in favour of the next candidates shown in the order of preference.”

“12.

The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded. The Central Government is under no obligation to release those seats to the general pool. It may in the larger interest of giving maximum benefit to candidates belonging to the non-reserved seats release them but it cannot be compelled to do so and the instance of students who have applied for admission from out of the categories for whom seats have not been reserved. In our opinion the High Court was in error in going into the question and holding that out of the nine seats filled by nomination to had been filled contrary to the admission rules and these would be converted into the general pool. Since no appeal has been filed against that part of the order we refrain from making any further observations in the matter.”

“21.

Having examined the challenge to the promotion of respondents 4 to 24 on merits, it must be made clear that the appellant is least qualified to question their promotions. Each one of them was promoted to a post in supertime grade II in a speciality other than Ophthalmology and appellant admittedly was not qualified for any of these posts. Even if their promotions are struck down appellant will not get any post Incidentally High Court also upheld their promotions observing that by the time the petition was heard each one of them had requisite service qualification and, therefore, the promotions could not be struck down. Once the challenge on merits fails the second string to the bow need not be examined. Having said all this appellant is least competent to challenge their promotions. In a slightly comparable situation this Court in Chitra Ghosh v. Union of India (1970) 1 SCR 413 at p. 420 : (AIR 1970 SC 35), observed as under :

"The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded".”

“7.

The remaining contention does not merit consideration. The learned Judges although inclined to the view that respondent No. 6 had really not participated in a National tournament, were entitled to take the view that the Court ought not to, in the facts and circumstances of the case, exercise its discretionary powers under Art. 226 of the Constitution at the instance of the petitioner who was not entitled to any relief merely because the Selection Committee was wrong in its view that respondent No. 6 had played in a National tournament although he had in fact played in a zonal tournament. Any other view would have been manifestly unjust as respondent No. 6 though admitted to the Regional Engineering College, Kurukshetra had given up his seat there on his being admitted to the M.B.B.S. course and had already undergone his course of studies for more than six months. The learned Judges rightly observe that it is not obligatory for the Court to interfere in all cases unless justice of the case so demands.”

“11. Determination and notification of vacancies.--

(1)

For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, to the Board in the manner hereinafter provided. (2) (a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the pro forma given in Appendix "A" by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject wise in respect of the vacancies of lecturer grade, and GroupWise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director:

Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:

Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July 25, 1998.

Explanation.--For the purposes of this sub-rule the word GroupWise in respect of the trained graduates grade means in accordance with the following groups, namely :

(a)

Language This group consists of the subjects of Hindi, Sanskrit, Urdu, Persian and Arabic;

(b)

Science This group consists of the subjects of Science and Mathematics;

(c)

Art and Craft

(d)

Music

(e)

Agriculture

(f)

Home Science

(g)

Physical Education

(h)

General This group consists of the subjects not covered in any of the foregoing groups.

(b)

With regard to the post of Principal or Headmaster, the Management shall also forward the names of two seniormost teachers, along with copies of their service records (including character rolls) and such other records or particulars as the Board may require from time to time.

Explanation.--For the purpose of this sub-rule "seniormost teacher" means the seniormost teachers in the post of the highest grade in the institution, irrespective of total service put in the institution.

(3)

If, after the vacancies have been notified under sub-rule (2), any vacancy in the post of a teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send it to the Board.

(4)

Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.

12. Procedure for direct recruitment.—

(1)

The Board shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes and other reserved categories as applicable to Government service from time to time, in at least two daily newspapers, having wide circulation in the State; and call for the applications through online or offline (OMR Application form) or both for being considered for selection in the Pro-forma published in the advertisement. The pro-forma of the application shall be on OMR sheet which shall be sold through Nationalized bank or post office. For the post of Principal of an Intermediate College or the Headmaster of a High School, the name and place of the Institutionshall also be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference for any particular Institutionor institutions and for no other institution, he may mention the fact in his application.

(2)

The Board shall scrutinize the applications and in respect of the post of teacher in Lecturers, Trained Graduates Grade and attached primary section shall conduct written examination. The written examination shall consist of one paper of general aptitude test of two hours, based on the subject. The centres for conducting written examination shall be fixed in district headquarters only and the invigilators shall be paid honorarium at such rate as the Board may like to fix.

(3)

The Board shall evaluate the answer sheets through examiner to be appointed by the Board or through Computer and the examiner shall be paid honorarium at the rate to be fixed by the Board.

(4)

The Board shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, call for interview such candidates who have secured the maximum marks under sub-clause (2) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies.

(5)

The Board shall, having regard to the need for securing due representation of the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, in respect of the post of Principal/Headmaster, call for interview such candidates who have secured maximum marks under the quality points specified in Appendix 'D' in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies.

(6)

The Board, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and Other Backward Classes of citizens in respect of the post of teacher in Lecturers and Trained graduates grade, call for interview such candidates who have secured the maximum marks under sub-clause (4) above/and for the post of Principal/Headmaster, call for interview such candidates who have secured maximum marks under sub-clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies:

Provided that in respect of the post of the Principal or Headmaster of an Institution, the Board shall also in addition call for interview two senior-most teachers of the Institution whose names are forwarded by the Management through Inspector under clause (b) of sub-rule (2) of Rule 11.

(7)

The marks obtained in the quality points as referred to in sub-rule (5) by the eligible candidates shall not be disclosed to the members of the interview board.

(8)

The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under sub-clause (4) or sub-clause (5) above, as the case may be, with the marks obtained in the interview. The panel for the post of Principal or Headmaster shall be prepared institution-wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular Institutionwhereas for the posts in the Lecturers and Trained graduates grade, it shall be prepared subject-wise and group-wise respectively. If two or more candidates obtain equal marks, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of the candidate who is older in age shall be placed higher. In the panel for the post of Principal or Headmaster, the number of names shall be three-times of the number of the vacancy and for the post of teachers in the Lecturers and Trained graduate grade, it shall be larger (but not larger than twenty-five per cent) than the number of vacancies.

Explanation.— For the purposes of this sub-rule the word “group-wise” means in accordance with the groups specified in the Explanation to sub-rule (2) of Rule 11.

(9)

In the case of Lecturer grade, the Board shall at the time of interview after showing the lists of institutions which have notified the vacancy to it, require the candidates to give, if she/he so desires, the choice of not more than five, such institutions in order of preference where if selected, he/she may wish to be appointed and in the case of teachers in Trained Graduate grade and attached primary teachers such choices shall be given to candidates after preparation of merit list on the basis of written examination by the Board.

(10)

The Board shall after preparing the panel in accordance with sub-rule (8), allocate the institutions to the selected candidates in respect of the posts of teachers in Lecturers and Trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the Institutionof his first preference given in accordance with sub-rule (9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated such institutions and there remains no vacancy in them, the Board may allocate any Institution to him as it may deem fit.

(11)

The Board shall forward the panel prepared under sub-rule (8) along with the name of the Institution allocated to selected candidates in accordance with sub-rule (10) to the Inspector with a copy thereof to the Joint Director and also notify them on its notice board. ”

“All requisitions made by the Institutions for filling up the posts of Heads of Institutions falling within the region were pooled together and, upon receipt of applications from the general candidates, a graded list was prepared on the basis of Quality Point Marks. The applications submitted by the candidates included their preferences in respect of particular Institutions, each Institution being treated as a separate unit. Thereafter, five candidates were selected from the top of the graded list prepared for each such unit, along with the “teacher candidate” of the concerned unit, and they were required to appear before an Interview Board constituted for that unit, the candidates being selected by lottery on the date of the interview. ”

“26.

Having given the matter a careful consideration we find that the above contentions are devoid of any substance. The methodology adopted by the Commission has been elaborated in the short counter-affidavit filed on behalf of the respondents referred to above according to which after the occurrence of a vacancy in an Institution and intimation of the same by the Management to the Commission as required under Rule 4, all the requisitions made by various institutions for filling up the posts of heads of institutions falling in a region are pooled together and the various applications received by the general candidates are processed and a graded list prepared on the basis of quality point marks, the details of which are given in Annexure-CA-1 and have been outlined hereinabove. These quality point marks are determined with reference to the criteria as regards the academic record, teaching and administrative experience and the marks allocated are worked out on the basis of the methodology and guidelines indicated in the said annexure. The preference given by each applicant in respect of an Institution treating it as separate unit is also noted. This process is thereafter computerised according to the information supplied by the candidates in their respective formats. After that first five candidates are picked up from the top of the graded list prepared in the unit in the manner indicated above, these along with the teacher candidates of the unit are required to appear before the interview board constituted for the unit on lottery system on the date of the interview. The board is manned by three experts drawn in accordance with the rules and two members of the Commission. Every candidate is then interviewed by the Board, the interview lasting on an average fifteen to twenty minutes for each candidate. Marks are allotted by individual members of the Board by the method of grading at the end of the interview on the basis of the criteria which has been indicated in Annexure-CA-2 which reads thus:—

"Madhyamik Shiksha Ayog.

The candidates called for interview have to be adjudged by members of the Board for 75 marks, keeping in view the following factors.

1.

Personality,

2.

Knowledge of the subject,

3.

Knowledge of current ideas and problems of the educational work and diagnostic attitude towards them.

4.

General knowledge.

5.

Administrative ability regarding school management.

6.

Self expressive and impressive views.

7.

Achievement in curricular activities of the regional and State levels."

27.

After the seven candidates referred to have been interviewed the average of the marks given by the members of the Board is calculated and the average for each general candidates is assigned as their respective marks in the interview.

28.

In the case of teacher candidates the methodology adopted for computing the marks obtained, by them at the interview may be set out in the own words of the respondents as disclosed in paragraph 4(e) of the short counter-affidavit:-

"In case of two teacher candidates their service record and experience is evaluated by the two members of the commission in the Board on the basis of the guidelines fixed by the Commission. According to which some marks in a definite proportion are availed of the maximum marks fixed for the interview and the service record and experience of the teacher candidate is evaluated against such marks in a manner prescribed by the Commission. The marks obtained thus by the teacher candidates is modulated in the same proportion with the marks obtained by the teacher candidates in interview along with the general candidates. On doing so, of the two marks obtained by the teacher candidates that which stands to the advantage of the teacher candidate is taken into account and accordingly marks so obtained are assigned to the teacher candidates as their marks in the interview.”

“4.

प्रश्नगत विज्ञापन में संस्था प्रधान पदों के सापेक्ष आफलाइन प्राप्त आवेदन-पत्रों को बोर्ड द्वारा आनलाइन किया गया है तथा उसमें अंकित सूचनाओं का सत्यापन सम्बन्धित अभ्यर्थियों से कराये जाने का निर्णय बोर्ड द्वारा लिया गया है। आफलाइन आवेदनों के आनलाइन संस्करण के सत्यापन हेतु चयन बोर्ड की वेबसाइट पर विस्तृत अनुदेश, यूजर मैनुअल / प्रक्रिया तथा पोर्टल का लिंक प्रदर्शित है।

5.

सम्बन्धित अभ्यर्थी कृपया अनुदेशों का भली भांति अध्ययन कर यूजर मैनुअल में निर्दिष्ट प्रक्रिया का पालन करते हुये अपने आवेदन की सूचनाओं की सत्यता का सत्यापन कर लें। किसी त्रुटि / मित्रता की दशा में उसे साक्ष्य सहित अद्यतन करते हुये आवेदित मण्डल के विज्ञापित संस्थाओं में से यथाआवश्यकता नियमानुसार 03 संस्थाओं की अधिमानता का विकल्प भी पोर्टल पर भरें। इस हेतु पोर्टल दिनांक 08.01.2022 तक ही क्रियाशील रहेगा”