GAURAV TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) THE above two Writ Petitions have been filed by the petitioners under Article 226 of the Constitution of India, interalia, praying for quashing the Guidelines framed by the U.P. Higher Education Services Commission (in short 'the Commission') for the purposes of selection of lecturers in Degree Colleges and Post Graduate Colleges in pursuance of Advertisement No. 41 of 2007, and further, for directing the Commission to hold the interview of the petitioners in the above Writ Petitions for the post of lecturer in Political Science in pursuance of the Advertisement No. 41 of 2007. The facts of the above two Writ Petitions are similar, and the questions of law involved in the said Writ Petitions are also similar, therefore, both the Writ Petitions are being disposed of by this common judgment. Civil Misc. Writ Petition No. 3326 of 2009 will be treated as the leading case. It may be mentioned at the outset that in Civil Misc. Writ Petition No. 3326 of 2009, the affidavits have been exchanged between the parties. As regards Civil Misc. Writ Petition No. 6733 of 2009, learned counsel for the parties are agreed that the affidavits need not be exchanged between the parties as the facts of the said Writ Petition are similar to those of Civil Misc. Writ Petition No. 3326 of 2009, and the questions of law involved in the two Writ Petitions are also similar. Civil Misc. Writ Petition No. 3326 of 2009 has been filed by the petitioner (Gaurav Tripathi), interalia, stating that the Commission issued an Advertisement No. 41 in the year 2007, which was published in the national newspapers; and that a large number of the posts of lecturers in different disciplines were advertised in the said advertisement; and that in Political Science, the total number of 35 posts were advertised, out of which 18 posts were unreserved; and that pursuant to the said advertisement, the petitioner submitted his application within time; and that the petitioner got First Division in B.A. Examination with 61.38% and First Division in M.A. Examination with 66.9%; and that the petitioner has cleared his NET Examination conducted by the UGC; and that the petitioner is also enrolled for Ph.D. Degree and is doing Ph.D.. It is, interalia, averred in the Writ Petition that the interview for the post of lecturer in Political Science commenced from 12.1.2009; and that the petitioner came to Allahabad on 19.1.2009 and enquired from the Office of the Commission regarding his interview call letter; and that the petitioner was informed verbally that his name had been screened out. A supplementary affidavit, sworn on 21.1.2009, has also been filed on behalf of the petitioner annexing thereto a copy of the Brochure issued by the Commission alongwith the application form of the aforesaid advertisement No. 41. A counter affidavit, sworn on 27.1.2009, has been filed on behalf of the Commission. It is, interalia, stated in the said counter affidavit that the petitioner has not been called for interview as he has been short listed inasmuch as his Screening Index Mark is 27.6 whereas the last candidate called for the interview obtained the Screening Index Mark 27.8. A rejoinder affidavit, sworn on 29.1.2009, has been filed on behalf of the petitioner in reply to the aforesaid counter affidavit. In Civil Misc. Writ Petition No. 6733 of 2009, it is, interalia, averred by the petitioner (Dr. Abha Pandey) that pursuant to the Advertisement No. 41 of 2007, issued by the Commission, the petitioner made an application for the post of lecturer in Political Science; and that the petitioner obtained 69.4% in her B.A. Examination and 62.6% in her M.A. Examination; and that the petitioner has been awarded Ph. D. Degree; and that the interview for the post of lecturer in Political Science commenced on 12.1.2009 but the petitioner has not been called for interview. During the course of arguments, Shri H.N. Singh, learned counsel appearing for the Commission (respondent no.2), on the basis of instructions, has stated that the Screening Index Mark of the petitioner (Dr. Abha Pandey) is 27.4 whereas the Screening Index Mark obtained by the last candidate called for the interview in the general category for the post of lecturer in Political Science was 27.8 and, therefore, the petitioner (Dr. Abha Pandey) was not called for interview. We have heard Shri P.S. Baghel, learned counsel for the petitioner in each of the above two Writ Petitions, Shri H.N. Singh, learned counsel appearing for the Commission (respondent no.2) and the learned Standing Counsel appearing for the respondent no.1, and perused the record. Shri P.S. Baghel, learned counsel for the petitioners has made the following submissions: (I) Additional qualifications cannot be prescribed by the Commission than those given in the Statutes referred to in the U.P. State Universities Act, 1973 (in short "the State Universities Act"), i.e., the First Statutes framed under Section 50 of the State Universities Act, and as amended from time to time under various provisions of the said Section. The said submission is elaborated as under: (1) It is submitted that the recent minimum qualifications as laid down by the Government Order dated 12.7.2006 (Annexure-CA-4 to the aforesaid counter affidavit) issued by the State Government in exercise of power conferred by sub-section (6) of Section 50 of the State Universities Act, and the consequent amendments in the Statutes referred to in Section 50 of the said Act, require consistently good academic record with Post-Graduation with minimum 55% marks and NET. There is no requirement of 'experience' in the minimum qualifications. Therefore, in view of Regulation 3 of the U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983 (in short "the Teachers Selection Regulations"), the above are the minimum qualifications for appointment on the post of lecturer/ teacher. There is no requirement of 'experience' as a minimum qualification for appointment on the post of lecturer/ teacher. Therefore, the Guidelines framed by the Commission under Section 11(a) of the U.P. Higher Education Services Commission Act, 1980 (in short "the Services Commission Act") cannot provide 'experience' as an additional qualification for short-listing the eligible candidates under clause (i) of the proviso to sub- regulation (1) of Regulation 6 of the Teachers Selection Regulations. The impugned Guidelines (Annexure-CA-3 to the aforesaid counter affidavit) framed by the Commission in the year 2008 for short-listing the number of candidates to be called for interview pursuant to the said Advertisement No. 41 of 2007, contemplate award of Screening Index Marks for preliminary screening. These Guidelines give 5 marks out of total 50 marks for 'experience'. As the said Guidelines provide Screening Index Marks for 'experience', which is not part of minimum qualifications, the said Guidelines are invalid. It is pointed-out that clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations contemplates holding of preliminary screening "on the basis of academic record" whereas clause (ii) of the said proviso contemplates holding of preliminary screening "on the basis of academic record, teaching the administrative experience". Therefore, under clause (i) of the said proviso, 'experience' cannot be taken into account for holding preliminary screening. It is emphasized that 'experience' is not part of "academic record". In support of his above submissions, reliance is placed by the learned counsel for the petitioners on the following decisions: (a) State of Punjab and others vs. Manjit Singh and others, (2003) 11 SCC 559. (b) Inder Prakash Gupta vs. State of J & K and others, (2004) 6 SCC 786. (2) It is submitted that in the said Advertisement No. 41 of 2007, which is relevant in the present case, there was no mention that 'experience' would be taken into account for screening and short-listing. Again, there was no mention of 'experience' in the minimum qualifications indicated in clause (2) of the Brochure (Annexure-SA-1 to the aforesaid supplementary affidavit). Only in clauses 29 and 30 of the Note/ Instructions contained in the said Brochure, the details of 'experience' were required to be submitted. In the application form also, 'experience' was required to be mentioned. (3) (i) Previously, the Guidelines framed by the Commission provided academic qualifications only as the basis for short-listing, and the same was in consonance with the Statutes of various Universities. Such Guidelines were upheld by this Court in the following decisions: (a) Dr. Sushma Misra vs. U.P. Higher Education Services Commission at Allahabad, 1987 UPLBEC 246. (b) Kumari Kavita Srivastava vs. State of U.P. and another, 1987 UPLBEC 248. (ii) In the Guidelines framed by the Commission in the year 2000 (Annexure-CA-7 to the aforesaid counter affidavit), the Commission for the first time, provided 'experience' also as a factor for screening and short-listing. In the following decisions, this Court concluded that the said Guidelines were valid: (a) Civil Misc. Writ Petition No. 52271 of 2000, Dr. Smt. Sushma Chauhan vs. State of U.P. and others, decided on 6.12.2000 (Annexure-CA-8 to the aforesaid counter affidavit). (b) Civil Misc. Writ Petition No. 4304 of 2003, Rakesh Singh vs. U.P. Higher Education Service Commission and another, decided on 24.1.2003 (Annexure-CA-9 to the aforesaid counter affidavit). However, the above two judgments are not precedents. These judgments only mention conclusion upholding the Guidelines. There is no indication of the issues involved, or of any application of mind to such issues. There is no reasoning for the conclusion arrived at. There is no principle of law laid down in the above judgments. Only conclusion is mentioned without laying down any principle of law on the basis of which such conclusion is arrived at. The principle of law on the basis of which the Court reaches its conclusion, constitutes the ratio of the decision, and such ratio is regarded as precedent. As the above judgments mention only conclusion, and there is no indication of the principle of law for reaching such conclusion, the above judgments are not precedents. It is further submitted that the above judgments are per-incurium as the same have been given without noticing the provisions of Regulation 3 and clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations, which do not contemplate taking into account of 'experience' as a factor for screening and short-listing. It is also submitted that the above judgments are sub-silentio in regard to the point being pressed on behalf of the petitioners in the present case. Reliance in this regard is placed by the learned counsel for the petitioners on the following decisions: (a) Dalbir Singh and others vs. State of Punjab, AIR 1979 SC 1384. (b) State of U.P. and another vs. Synthetics and Chemicals Ltd. and another, (1991) 4 SCC 139. (c) Union of India and others vs. Dhanwanti Devi and others, (1996) 6 SCC 44. (d) Divisional Controller, KSRTC vs. Mahadeva Shetty and another, (2003) 7 SCC 197 (e) Farhat Hussain Azad vs. State of U.P. and others, (2005)1 UPLBEC 474 (F.B.). (II) Mistake was committed by the Commission in computing Screening Index Marks in respect of the petitioner in Writ Petition NO. 3326 of 2009. However, subsequently, Shri P.S. Baghel, learned counsel for the petitioners has stated that he is not pressing this submission. (III) The impugned Guidelines framed by the Commission in the year 2008 (Annexure-CA-3 to the aforesaid counter affidavit) for screening and short-listing are arbitrary: (1) As per the qualifications mentioned in the Government Order dated 12.7.2006 (Annexure-CA-4 to the aforesaid counter affidavit), a person having M. Phil. in the concerned subject may be appointed lecturer but he can take only the Under-Graduate classes. The said Advertisement No. 41 of 2007 is for combined recruitment for Under-Graduate colleges as well as for Post-Graduate colleges. It is not clear as to whether a person having M. Phil. will take only Under-Graduate classes, therefore, giving 01 Screening Index Mark for M. Phil. is invalid, arbitrary and unreasonable. (2) By giving marks for 'experience', candidates having better academic qualifications are ousted in the screening, while candidates having lower academic qualifications are included for interview because of marks for 'experience'. There is a possibility that such 'experience' may be certified by false certificates. (IV) 'Experience' can be considered as a relevant factor during interview but this cannot be a factor for denying a candidate an opportunity to appear in the interview by holding screening taking into consideration the 'experience' of a candidate. In reply, Shri H.N. Singh, learned counsel appearing for the Commission (respondent no.2) has made the following submissions: (1) Section 4 of the Services Commission Act deals with composition of the Commission. Sub-sections (2) and (2-a) of Section 4 show that experienced and competent persons including those from the field of education constitute the Commission. They are capable of assessing the candidates academically as well as personality-wise. (2) (i) Section 11(a) of the Services Commission Act gives power to the Commission to prepare Guidelines on matter relating to the method of recruitment of teachers in Colleges. Therefore, the power to frame Guidelines has been given to the Commission by the Statute. (ii) Sub-section (4) of Section 12 of the Services Commission Act provides that the manner of selection of persons for appointment to the post of teachers of a College shall be such, as may be determined by Regulations. Section 31 of the Services Commission Act gives power to the Commission to make Regulations with previous approval of the State Government. Such Regulations should not be inconsistent with the provisions of the Services Commission Act or the Rules made under Section 32 of the said Act. Thus, the Commission has power to lay down procedure for selection by making Regulations with the previous approval of the State Government. (3) Since 1980, the Commission has been following the procedure of interview for making selection as contemplated in the Regulations made by the Commission. It is pointed-out that besides the Teachers Selection Regulations, the Commission has also framed the Uttar Pradesh Higher Education Services Commission (Procedure and Conduct of Business) Regulations, 1983 (in short "the Business Regulations"). Regulation 4 of the Business Regulations deals with the allocation of work among members including Chairman and the constitution of Committee for performance of any specified work or transaction of any specified business. Regulation 5 of the Business Regulations deals with the Interview Board. Regulation 6 provides for preparation of a panel of experts. As regards the procedure for selection, the provisions are contained in the Teachers Selection Regulations. Regulation 3 of the Teachers Selection Regulations deals with the minimum qualifications for appointment of a teacher, and lays down that the minimum qualifications shall be as given in the Statutes referred to in Section 50 of the State Universities Act. Regulation 6 of the Teachers Selection Regulations deals with the procedure for selection. The said procedure is as under: (a) The Commission shall scrutinize the applications and call for interview such number of candidates as it may consider proper. At this stage, the screening is done on the basis of qualifications. If an applicant does not fulfil the minimum qualifications, then his application is rejected. (b) After scrutinizing the applications, as mentioned above, all the applicants who are eligible and whose applications are found to be in order, are sorted out. Then the process of selection starts. (c) The Commission will consider the number of sorted-out applications, the time available for completion of the process of selection and the number of posts available. Then, if the Commission considers it desirable to limit the number of candidates to be called for interview, it may do so by preliminary screening as contemplated in clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations. (4) Clause (i) of the proviso to sub-regulation (1) of Regulation 6 contemplates screening on the basis of "academic record". It is submitted that the object of selection is to select the best talented amongst eligible candidates, and, therefore, 'experience' may be considered as a part of the "academic record" for screening and short-listing. (5) It is submitted that the Commission in exercise of its power to frame Guidelines under Section 11(a) of the Services Commission Act may frame Guidelines in order to fill-in the gap in the Regulations framed by the Commission. It is further submitted that in exercise of its power, the Commission has framed Guidelines in the year 2008 adopting various factors as would constitute part of the "academic record" for purposes of screening and short-listing as contemplated in clause (i) of the proviso to sub- regulation (1) of Regulation 6 of the Teachers Selection Regulations. (6) The impugned Guidelines framed by the Commission are not against the statutory regulations, and the submission of the learned counsel for the petitioners is not correct. (7) As regards the submission made on behalf of the petitioners that the impugned Guidelines are arbitrary, it is submitted that there is no pleading by the petitioners showing as to how the Guidelines are arbitrary. It is further submitted that 'experience' is a rational, reasonable and objective criterion, and the Guidelines taking into account 'experience' as one of the factors for screening and short-listing cannot be said to be arbitrary. (8) Giving details in regard to the candidates called for interview for the post of lecturer in Political Science, it is stated by Shri H.N. Singh that total 295 candidates were called for interview for the post of lecturer in Political Science. Out of the said 295 candidates, 280 candidates were called on the basis of their Screening Index Marks given to them only in regard to their academic qualifications while the remaining 15 candidates were called on the basis of their Screening Index Marks given to them taking into account their academic qualifications as well as their 'experience'. Shri H.N. Singh has further supplied the following details in regard to the said 15 candidates in whose case 'experience' was taken into consideration for screening and short-listing. Sl.No. Name 0 Category Screening Index Marks Screening Index Marks in regard to 'experience' Nature of 'experience' 01 Abhay Vikram Singh General 29.5 5.0 Research Associate 02 Mohd. Aftab Siddiqui 1 General 28.8 5.0 Permanent Lecturer 03 Dr. Smt. Anju Chaudhary O.B.C. 28.5 5.0 Research Associate 04 Dr. Archana Tiwari General 2 27.9 5.0 Permanent Lecturer 05 Dr. Sujeet Kumar Srivastava General 29.0 3.0 Permanent Lecturer 06 Dr. Naresh Kumar S.C. 3 30.9 1.0 Permanent Lecturer 07 Dr. Bhupesh Mani Tripathi General 30.9 5.0 Research Associate 08 Dr. Pratit Kumar General 35.2 4 1.0 Permanent Lecturer 09 Dr. Yatendra Singh S.C. 30.8 5.0 Permanent Lecturer 10 Dr. Smt. Usha Chaudhary O.B.C. 28.0 5 5.0 Permanent Lecturer 11 Dr. Swadesh Kumar S.C. 30.0 5.0 Research Associate 12 Durg Vijay Bharti S.C. 27.2 3.0 6 Permanent Lecturer 13 Smt. Arti Gaharwar General 31.9 3.0 Permanent Lecturer 14 Dr. Amit Kumar Singh General 37.8 5.0 7 Permanent Lecturer 15 Dr. Anupam Shahi General 27.8 3.0 Permanent Lecturer It is submitted that the above details show that the Guidelines have not resulted in any functional arbitrariness. (9) As regards the submission made on behalf of the petitioners that they were not informed that 'experience' would be considered for screening and short-listing, it is pointed-out that in the application form there was a specific column requiring the applicant to submit details regarding 'experience'. Further, clauses 29 and 30 of the Note/ Instructions provided for submission of details regarding 'experience' by the applicants. Clause 13 of the Note/Instructions, interalia, provided that the application would be considered on the basis of "academic achievements and experience". (10) As regards the possibility of false certificates regarding 'experience' being submitted by the applicants, it is submitted that the Commission takes due care to avoid such possibility. (11) (i) In support of his submission that Commission can fill-in gaps by making Guidelines, Shri H.N. Singh has relied upon the following decisions: 8 (a) State of Gujarat vs. Akhilesh C. Bhargav and others, AIR 1987 SC 2135 (paragraph 6). (b) Kiran Gupta and others vs. State of U.P. and others, (2000) 7 SCC 719 (paragraph 14). (ii) In support of his submission that higher bench marks/ higher qualifications may be prescribed and preferred, Shri H.N. Singh has relied upon the following decisions: (a) Government of Andhra Pradesh vs. P. Dilip Kumar and another, (1993) 2 SCC 310 (paragraphs 14 and 15). (b) K.H. Siraj vs. High Court of Kerala and others, (2006) 6 SCC 395 (paragraphs 58,60,61 and 62). (iii) Prescribing 'experience' as a criterion for short-listing cannot be faulted as the same is a rational and reasonable criterion in view of the decision of the Supreme Court in Madhya Pradesh Public Service Commission vs. Navnit Kumar Potdar, AIR 1995 SC 77 (paragraphs 6,9 and 13). (12) It is submitted that the decisions of this Court upholding the validity of the Guidelines framed by the Commission in the year 2000 (wherein 'experience' was provided as one of the factors for screening and short-listing) are binding in view of the doctrine of stare decisis, and this Court should follow the said decisions in the present case also. Reliance in this regard is placed on the following decisions: (a) Kattite Valappil Pathumma and others vs. Taluk Land Board and others, (1997) 4 SCC 114 (paragraph 6). (b) Mishri Lal (Dead) by Lrs. vs. Dhirendra Nath (Dead) by Lrs. And others, (1999) 4 SCC 11 (paragraphs 14,15 and 16). (c) Sakshi vs. Union of India and others, (2004) 5 SCC 518 (paragraphs 23, 24 and 25). 9 In rejoinder, Shri P.S. Baghel, learned counsel for the petitioners has reiterated his submissions made earlier. It is further submitted that the phrase "academic record" occurring in clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations must be interpreted in the sense in which it is understood in various Statutes framed by the Universities. As regards the doctrine of stare decisis, it is submitted by Shri Baghel that the same is not applicable to the present case. It is pointed out that the said doctrine applies only if the earlier judgment amounts to precedent, i.e., it lays down certain principle of law or ratio. In case the judgment does not lay down any principle of law i.e., there is no ratio, the doctrine of stare decisis will not apply as such judgment does not amount to precedent. It is further submitted that for the applicability of the doctrine of stare decisis, the judgment must be of long standing. The said doctrine cannot be applied to the judgments delivered about 8 or 9 years ago. Reliance in this regard is placed on the following decisions: (a) Maktul vs. Mst. Manbhari and others, AIR 1958 SC 918 (paragraph 9). (b) Union of India and another vs. Azadi Bachao Andolan and another, (2004) 10 SCC 1. (c) Iridium India Telecom Ltd. vs. Motorola Inc., (2005) 2 SCC 145. (d) Shahabad Coop. Sugar Mills Ltd. vs. Spl. Secretary to Government of Haryana Corpn. and others, (2006) 12 SCC 404. As regards the decisions relied upon by the learned counsel appearing for the Commission, it is submitted that the said decisions are distinguishable on the facts, and are not applicable to the present case. We have considered the submissions made by the learned counsel for the parties. On the basis of the said submissions, TWO QUESTIONS mainly crop up for consideration: 0 1. Whether the impugned Guidelines framed by the Commission in the year 2008 in regard to the selection pursuant to Advertisement No. 41 of 2007 are valid?

(2.) WHETHER the decisions of this Court in regard to the validity of the Guidelines framed by the Commission in the year 2000 (wherein Screening Index Marks were awarded regarding 'teaching experience') are binding precedents, and the impugned Guidelines should be upheld in view of the said decisions? Before dealing with the above questions, it is necessary to refer to certain relevant STATUTORY PROVISIONS: Section 50 of the State Universities Act (i.e., the U.P. State Universities Act, 1973) deals with the making of Statutes of Universities. The said Section 50 (as amended) is as under: "50. Statutes how made.- The First Statutes of the University shall be made by the State Government by notification in the Gazette and in the case of any existing University, for so long as the First Statues are not so made, the Statutes as in force immediately before the commencement of this Act, insofar as they are not inconsistent with the provisions of this Act, shall, subject to such adaptations and modifications whether by way of repeal, amendment or addition as may be necessary or expedient, as the State Government may, by notification in the Gazette provide, continue in force, and any such adaptation or modification shall not be called in question. [(1-A) The State Government may by notification in the Gazette amend whether by way of addition, substitution or omission, the First Statutes at any time [up to December 31, 1990] and any such amendment may be retrospective to a date not earlier than the date of such commencement.] [(1-B) Until the First Statutes of the Purvanchal University are made under this section, the Statutes of the University of Gorakhpur, as in force immediately before the establishment of the said University shall apply to it subject to such adaptations and modifications as the State Government may, by notification, provide.] 1 [(2) The Executive Council may, at any time [after December 31,1990], make new or additional Statutes or may amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A).] (3) The Executive Counsel shall not propose the draft of any Statute affecting the status, power or constitution of any authority of the University until such authority has been given an opportunity of expressing its opinion upon the proposal and any opinion so expressed shall be in writing and shall be submitted to the Chancellor. (4) Every new Statute or addition to a Statute or any amendment or repeal of Statute shall be submitted to the Chancellor who may assent to it or withhold his assent therefrom or remit it to the Executive Council for further consideration. (5) A Statute passed by the Executive Council shall have effect from the date it is assented to by the Chancellor or from such later date as may be specified by him. [(6) Notwithstanding anything contained in the foregoing sub-section the State Government may in order to implement any decision taken by it in the interest of learning, teaching or research or for the benefit of teachers, students or other staff or on the basis of any suggestion or recommendation of the University Grants Commission or the State or National Education Policy with regard to the qualifications of the teachers, require the Executive Council to make new or additional Statutes or amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A) within a specified time and if the Executive Council fails to comply with such requirement the State Government may, with the assent of the Chancellor, make new or additional Statutes or amend or repeal the Statutes referred to in sub- section (1) or sub-section (1-A).] (7) The Executive Council shall have no power to amend or repeal the Statutes made by the State Government under Sub-section (6) or to make new or additional Statutes inconsistent with such Statutes.]" Section 4 of the Services Commission Act (i.e., the U.P. Higher Education Services Commission Act, 1980) deals with the composition of the Commission. The said Section 4 is as under: 2 "4. Composition of the Commission.-(1) The Commission shall consist of a Chairman and not less than two and not more than four other members to be appointed by the State Government. ["(2) No person shall be qualified for appointment as Chairman unless he- (a) is or has been a member of Uttar Pradesh Higher Judicial Service who has held the post of District Judge or any other post equivalent thereto; or (b) is or has been a member of the Indian Administrative Service who has held the post of a Secretary to the State Government or any other post under the State Government equivalent thereto; or (c) is or has been a Vice-Chancellor of any University; or (d) is or has been a Professor in any University; or (e) is in the opinion of the State Government an eminent person having made valuable contribution in the field of education. (2-a) No person shall be qualified for appointment as member unless he - (a) is or has been a member of Uttar Pradesh Higher Judicial Service who has held the post of District Judge or any other post equivalent thereto; or (b) is or has been a member of the Indian Administrative Service who has held the post of a Secretary to the State Government or any other post under the State Government equivalent thereto; or (c) is or has been a Vice-Chancellor of any University; or 3 (d) is or has been a Professor in any University; or (e) is or has been a Principal of a Post Graduate College for a period of not less than five years;or (f) is or has been a Principal of Degree College for a period of not less than ten years; or (g) is in the opinion of the State Government an eminent person having made valuable contribution in the field of education"]. (3) Every appointment under this Section shall take effect from the date on which it is notified by the State Government." Section 11 of the Services Commission Act deals with the powers and duties of the Commission. The said Section 11 provides as under: "11. Powers and duties.- The Commission shall have the following powers and duties, namely- (a) to prepare guidelines on matters relating to the method of recruitment of teachers in Colleges; (b) to conduct examinations where considered necessary, hold interviews and make selection of candidates for being appointed as such teachers; (c) to select and invite experts and to appoint examiners for the purposes specified in clause (b); (d) to make recommendation to the management regarding the appointment of selected candidates; 4 (e) to obtain periodical returns or other informations from colleges regarding strength of the teaching staffs and the appointment, dismissal, removal, termination or reduction in rank of teachers therein; (f) to fix the emoluments and travelling and other allowance of the experts and examiners; (g) to administer the funds placed at the disposal of the Commission: (h) to perform such other duties and exercise such other powers as may be prescribed or as may be incidental or conductive to the discharge of the above functions." Section 12 of the Services Commission Act lays down the procedure for appointment of teachers. The said Section 12 is as under: "[12. Procedure for appointment of teachers .- (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void. [" Provided that a permanent teacher of an affiliated or associated college, who has been appointed in accordance with the provisions of this Act and has completed ten years' service as such and who wishes to be transferred to any other college, may be transferred in the manner prescribed by rules from one college to another, only when the respective management of the colleges concerned give their consents in writing." [(1-a) Notwithstanding any decree or order of a court, a teacher who has been appointed as such by transfer from one college to another in pursuance of the Government Orders No. 429 Shiksha Mantri/ Sattar-6-98-15-95, dated August 17, 1998 or No. 393/Sattar-1-99-15(6)-99, dated October 28, 1999 shall be deemed to have been validly appointed as if the provisions of the principal Act as amended by the Uttar Pradesh Higher Education Services Commission (Second Amendment) Act, 2004 were in force at all material times." 5 (2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as may be prescribed. Explanation - The expression "academic year" means the period of 12 months commencing on July 1. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subject-wise consolidated list of vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulations: Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3): Provided further that the candidates shall be required to indicate their order of preference for the various colleges vacancies wherein have been advertised." Section 13 of the Services Commission Act deals with the holding of interview (with or without written examination) of the candidates by the Commission, the sending of recommendation by the Commission to the Director of Education (Higher Education), and the placement of candidates by the Director in various institutions. The said Section 13 is as under: "13. Recommendation of Commission .- (1) The Commission shall, as soon as possible, after the notification of vacancies to it under sub-section (3) of Section 12, hold interview (with or without written examination) of the candidates and send to the Director a list recommending such number of names of candidates found most suitable in each subject as may be, so far as practicable, twenty-five percent more than the number of vacancies in that subject. Such names shall be arranged in order of merit shown in the interview, or in the examination and interview if an examination is held. (2) The list sent by the Commission shall be valid till the receipt of a new list from the Commission. 6 (3) The Director shall having due regard in the prescribed manner, to the order of preference if any indicated by the candidates under the second proviso to sub-section (4) of Section 12, intimate to the management the name of a candidate from the list referred to in sub-section (1) for being appointed in the vacancy intimated under sub-section (2) of Section 12. (4) Where a vacancy occurs due to death, resignation or otherwise during the period of validity of the list referred to in sub-section (2) and such vacancy has not been notified to the Commission under sub- section (3) of Section 12, the Director may intimate to the management the name of a candidate from such list for appointment in such vacancy. (5) Notwithstanding anything in the preceding provisions, where to abolition of any post of teacher in any college, services of the person substantively appointed to such post is terminated the State Government may make suitable order for his appointment in a suitable vacancy, whether notified under sub-section (3) of Section 12 or not in any other college, and thereupon the Director shall intimate to the management accordingly. (6) The Director shall send a copy of the intimation made under sub-section (3) or sub-section(4) or sub- section (5) to the candidate concerned." Section 30 of the Services Commission Act gives overriding effect to the provisions of the said Act over the State Universities Act or the Statutes or Ordinances made thereunder. The said Section 30 is reproduced below: "30. Act to have overriding effect.- The provisions of this Act, shall have effect notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or the Statutes or Ordinances made thereunder." Section 31 of the Services Commission Act deals with the power of the Commission to make regulations. The said Section 31 is as under: 7 "31. Power to make regulations.- (1) Commission may, with the previous approval of the State Government, make regulations prescribing fees for holding selections, conducting examinations where necessary, holding interviews and laying down the procedure to be followed by the Commission for discharging its duties and performing its functions under this Act. (2) The regulations made under sub-section (1) shall not be inconsistent with the provisions of this Act or the rules made under Section 32." Section 32 of the Services Commission Act gives power to the State Government to make rules for carrying out the purposes of the said Act. The said Section 32 is as under: "32. Power to make Rules.- The State Government may, by notification, make rules for carrying out the purposes of this Act." Regulation 4 of the Business Regulations [i.e., the Uttar Pradesh Higher Education Services Commission (Procedure and Conduct of Business) Regulations, 1983] deals with the allocation of work among members including Chairman and the constitution of Committee for performance of any specified work or transaction of any specified business. The said Regulation 4 is reproduced below: "4. Procedure generally.- (1)For convenient transaction of its business- (i) the allocation of work among members (including Chairman) shall, from time to time, be made by the Chairman. (ii) the Commission may constitute a committee or committee from amongst its members or authorize any member for performance of any specified work or transaction of any specified business. (2) The allocation made may be altered or modified as and when deemed necessary. (3) The senior-most member shall be the convenor of a committee. 8 (4) Decisions of the Committee shall, except in matters in respect of which the Commission has otherwise directed, be subject to approval of the Commission." Regulation 5 of the Business Regulations deals with the Interview Board. The said Regulation 5 is as under: "5. Interview Board.- (1) Separate interview Board shall be constituted for the posts of Principals in Post- graduate Colleges. Principals in degree colleges and for the post of the other teachers in each subject. (2) The Chairman shall constitute an interview Board and, if necessary, more than one interview Board comprising three Experts and at least two Members: Provided that where the Expert invited for any selection has expressed his inability or has otherwise failed to come and there is no sufficient time to invite any other expert from the panel, the Chairman may invite any available Expert possessing qualifications set out by the Commission: Provided further that the proceedings of an interview Board shall not be invalid if at least two Experts and two members are present. (3) Ordinarily, a single Board shall be constituted for selection to a particular post or posts, but where the number of candidates at large, the Commission may constitute more than one Board for the purpose. (4) Where more than one multiple Member Board are constituted the constitution of the Boards may be changed by rotation as often as considered proper. (5) The programme of interview shall be fixed by the Commission. 9 (6) The intimation for interview shall be sent to candidate at least 21 (twenty-one) days in advance. (7) If member is unable to be present in an Interview Board, the Chairman may authorize any other Member to hold the interview in his place and this fact shall not invalidate the proceedings of such selection. (8) If a Member of a multiple Member Board is unable to attend, or has to leave the interview Board during the course of its sitting and an alternative arrangement cannot be made, then subject to the condition laid down in the second proviso to sub-regulation (2) of this regulation the other remaining Members may hold or continue to hold the interview and the proceedings of the Board shall not be vitiated on the ground that the Member was absent from the sittings of the Board. (9) The Senior-most Member shall preside over the Interview Board. The proceedings of the Interview Board shall be placed before the Commission for approval as early as possible whereafter the recommendation will be issued. Such approval may be obtained by circulation or in a meeting of the Commission." Regulation 6 of the Business Regulations provides for preparation of a panel of experts. The said Regulation 6 is as follows: "6. Experts.-(1) The Commission shall prepare a panel of Experts for the selection of Principal and separate subject-wise panels for selection of teachers other than Principal. Note - The Experts for selection of teachers, not being the selection of Principal, shall be Experts in the subject for which a teacher has to be selected. (2) The panel so prepared and approved by the Commission may be reviewed by the Commission from time to time. (3) The panel of Experts shall be a secret document and it shall be kept in safe custody by the Secretary under sealed cover and shall be submitted to Member on requisition in writing." 0 Regulation 3 of the Teachers Selection Regulations [i.e., the Uttar Pradesh Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983] deals with the minimum qualifications for appointment of a teacher. The said Regulation 3 lays down as under: "3. Qualifications and experience, etc. for appointment as teacher.- The minimum qualifications for appointment of a teacher shall be as given in the statutes referred to in Section 50 of the Uttar Pradesh State Universities Act, 1973." Regulation 5 of the Teachers Selection Regulations deals with the notification of vacancies by the Commission, and the submission of application and indication of preference of colleges by the candidates. The said Regulation 5 provides as under: "5. Notification of vacancies, submission of application and indication of preference.- The Commission shall advertise the vacancies in three issues of at least three newspapers. The Commission shall send a copy of the advertisement to the Director and may, if it considers proper, also send a copy thereof to the District Inspector of Schools and to the Colleges. Such advertisement shall, interalia, indicate the total number of vacancies as also the number of vacancies in women's colleges and other colleges separately, the names of the college(s) and where they are situate and shall require the candidates to apply in prescribed form and to give, if he so desires, the choice of not more than five colleges in order of preference. Where a candidate wishes to be considered for a particular college or colleges only, and for no other, he shall mention the fact in his application: Provided that where the number of colleges is large or for any other reason the Commission considers it inexpedient, it may, instead of mentioning the names and particulars of the colleges in the advertisement, send the copy thereof to the colleges and to the District Inspector of Schools and mention in the advertisement that particulars of the colleges may be seen in the office of the Commission, the office of District Inspector of Schools or in the Colleges: Provided also that the Commission shall not be bound by the choice given by the candidate and may, in its discretion, recommend him for appointment in a college other than indicated by him." 1 Regulation 6 of the Teachers Selection Regulations deals with the procedure for selection for the post of a teacher as well as for the post of the Principal. The said Regulation 6 is as under: "6. Procedure for selection.-(1) The Commission shall scrutinize the applications and call for interview such number of candidates as it may consider proper: Provided that, if on account of excess number of applications or for any other reasons, the Commission considers it desirable to limit the number of candidates to be called for interview, it may- (i) in the case of the post of a teacher, not being the post of Principal, either hold preliminary screening on the basis of academic record or hold a competitive examination, so however that no competitive examination shall be held before the recruitment year 1984. (ii) in the case of the post of the Principal, hold preliminary screening on the basis of academic record, teaching the administrative experience: Provided further that the number of candidates to be called for interview for any category of post shall, as far as possible, be between three to eight times the vacancies as the Commission may consider proper. (2) The Commission shall interview the candidates in accordance with the criteria, minimum standards and guidelines set out by it. The Commission may, if it considers necessary, hold practical test also as part of interview. (3) No candidate shall be recommended unless at least one expert concurs with the selection. (4) The Commission shall prepare two separate lists of selected candidates, one of the women candidates only and the other a 'general list' of all the candidates (including women candidates included in the first list). The names of women candidates who specifically opt not to be posted in women's colleges shall not be included in the list of women candidates. The names of the candidates in the two 2 lists shall be arranged in order of merit and the number of names shall not be more than three times the number of vacancies or the number of vacancies plus four whichever is more." The Hindi version of the aforesaid Regulation 6 of the Teachers Selection Regulations is as under: ....Vernacular Text Ommited.... " LET US NOW CONSIDER THE QUESTIONS FRAMED ABOVE. Question No.1,as noted above, is as to whether the impugned Guidelines framed by the Commission in the year 2008 in regard to the selection pursuant to Advertisement No. 41 of 2007 are valid. In order to appreciate the above question,let us discuss the statutory provisions, reproduced above, and also certain factual aspects. In exercise of power conferred under sub-section (6) of Section 50 of the State Universities Act, the State Government has issued a Government Order dated 12-7-2006 (Annexure CA-4 to the Counter Affidavit on behalf of the Commission) requiring amendment in the Statutes of various Universities in regard to minimum qualifications as per the provisions of the said Government Order. As per the said Government Order, and the consequent amendments in the Statutes referred to in Section 50 of the State Universities Act, the minimum qualifications for appointment on the post of lecturer are consistently good academic record plus Post Graduation with minimum 55% marks or its equivalent with B Grade plus National Eligibility Test (NET). Therefore, there is no requirement of "experience" in the minimum qualifications for appointment on the post of lecturer. Under Section 11 (a) of the Services Commission Act, the Commission has power to prepare guide-lines on matter relating to the method of recruitment of teachers in Colleges. Therefore, the power to frame guide-lines is there with the Commission. Sub-section (4) of Section 12 of the Services Commission Act lays down that the manner of selection of persons for appointment to the posts of teachers in a College shall be such, as may be determined by regulations. Sub-section (1) of Section 31 of the Services Commission Act gives power to the Commission to make regulations with the previous approval of the State Government. Accordingly, the Commission may make regulations prescribing fees for holding selections, conducting examinations where necessary, 4 holding interviews and laying down the procedure to be followed by the Commission for discharging its duties and performing its functions under the Services Commission Act. Sub-section (2) of Section 31 lays down that the Regulations made under sub-section (1) shall not be inconsistent with the provisions of the Services Commission Act or the Rules made under Section 32 of the said Act. Regulation 3 of the Teachers Selection Regulations lays down that the minimum qualifications for appointment of a teacher shall be as given in the Statutes referred to in Section 50 of the State Universities Act. Therefore, the above minimum qualifications, as laid down in the said Government Order dated 12-7- 2006 and the consequent amendment in the Statutes, will be the minimum qualifications for appointment of a teacher. Accordingly, the minimum qualifications for appointment on the post of teacher/ lecturer are consistently good academic record plus Post Graduation with 55 per cent marks or its equivalent with B Grade plus National Eligibility Test (NET). There is no requirement of experience in the minimum qualifications for appointment on the post of teacher / lecturer. Under the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations, the Commission has power of short- listing the number of candidates to be called for interview by holding preliminary screening or holding competitive examination in the case of the post of a teacher [clause (i) of the said proviso], or by holding preliminary screening in the case of the post of Principal [clause (ii) of the said proviso]. Such preliminary screening under clause (i) of the said Proviso in respect of the post of a teacher is to be done "on the basis of academic record". Preliminary screening under clause (ii) of the said Proviso in respect of the post of Principal is to be done "on the basis of academic record, teaching the administrative experience". The Commission has framed its guide-lines for holding preliminary screening for short-listing the number of candidates to be called for interview. Copy of the said guide-lines has been filed as Annexure CA-3 to the Counter Affidavit filed on behalf of the Commission. 5 A perusal of the said guide-lines shows that these contemplate award of Screening Index Marks for preliminary screening. Total 50 Screening Index Marks have been allocated as under: Sl. No. Particulars Maximum Screening Index Marks 1. For Graduate Degree 10 2 For Post-Graduate Degree 30

(3.) ALL regulations made under the proviso to Cl. (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the 8 Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid." It is to be noted that under Cl. (3), the Union Public Service Commission or the State Public Service Commission, has to be consulted by the Government relating to methods of recruitment in civil services and for civil posts, promotions and transfers as well as about suitability of candidates etc. The consultation may also be in regard to disciplinary matters affecting a person serving under the Government. We then find that Cl. (4) particularly provides that nothing in Cl. (3) shall require consultation of the Commission in respect to the manner in which any provision referred to in Art. 16(4) may be made or the manner in which the effect may be given to the provisions of Art. 335. We may peruse Cl. (4) of Art. 16 and Art. 335. They read as follows: "Article 16(4).- Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State,is not adequately represented in the services under the State. Article 335.- Claims of Scheduled Castes and Scheduled Tribes to services and posts.- The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State." Article 16(4) deals with reservations and Art. 335 pertains to consideration of reservation consistent with the maintenance of efficiency of the administration. As indicated earlier, Cl. (4) of Art. 320 clearly provides that consultation of the Commission would not be necessary in the matters relating to Arts. 16(4) and 335. Therefore, it would be a matter of policy to be decided by the State Government as to what measures, if necessary, may be provided regarding reservations vis-a-vis maintenance of efficiency in services. Where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules or the State, it would not be for the Commission to impose any 9 extra qualification/standard supposedly for maintaining minimum efficiency which, it thinks, may be necessary. No consultation with the Commission, in such matters, is envisaged in view of Cl. (4) of Art. 320 of the Constitution. 10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than the required number of candidates may obtain marks above the cut-off marks, say for example, out of 10,000 if 8,000 or 6,000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so, any candidate who is otherwise eligible up to the 500th position, whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut- off marks. 11. In the case in hand, it was not for the Commission to have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to-the-mark merit, as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Art. 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant-Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview. 12. The appellant has also placed reliance upon a decision reported in Dr. Sadhna Devi and others v. State of U.P. and others, 1997 (3) SCC page 90 : AIR 1997 SC 1120 : 1997 AIR SCW 1146 : 1997 ALL LJ 677. It, however, deals with an entirely different situation. The matter pertains to the admission to post- graduate course in the medical colleges. An entrance test was prescribed which also prescribed minimum qualifying marks. But so far as the candidates belonging to Scheduled Castes and Scheduled Tribe are concerned, the condition of obtaining the minimum qualifying marks was removed by means of a Circular issued by the State Government. The Circular of the State Government was challenged by 0 the other candidates, pleading discrimination. It was found that though regulating the selection procedure was within the competence of the State Government but prescribing the eligibility criteria for maintaining proper standards, fell within the competence of the Medical Council of India. In that view of the matter, it was held that the State Government had decided to hold the entrance examination for selection instead of merit of M.B.B.S. examination and thus having prescribed the minimum qualifying marks, it was not open to it to do away with that criteria for the reserved category candidates altogether. It was thus found that once a decision was taken to prescribe the minimum qualifying marks, it could not be said by the State Government that there would be none for the reserved category candidates since it was within the competence of the Medical Council of India to have prescribed the criteria for maintaining proper standards. Therefore, the stand of the appellant-Commission in this case that, it being an independent body, is not subservient to any authority or the State Government, hence it is competent for it to lay down the minimum efficiency standards including in the matters which may fall within the purview of Art. 335 of the Constitution, is erroneous". (Emphasis supplied) This decision thus lays down that the Punjab Public Service Commission has power of short-listing by screening out candidates. However, the Commission cannot lay down cut-off marks so as to exclude the candidates fulfilling the minimum qualifications as per the relevant Rules from being called for interview. This is not short-listing. This amounts to altering the minimum qualifications as laid down in the relevant Rules, and the Commission has no such power. But it is open to the Commission to prepare a merit list of the candidates who fulfil the minimum qualifications as per the relevant Rules, and call the requisite number of candidates for interview in order of merit on the basis of such list from Serial No.1 upto the number of candidates required. This method of short-listing is permissible. In Inder Prakash Gupta Vs. State of J. & K. and others, (2004)6 SCC 786, their Lordships of the Supreme Court held as follows (paragraph 28 of the said SCC) : "28. The Jammu & Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979 admittedly were issued under Section 124 of the Jammu and Kashmir Constitution which is in pari materia with Article 309 of the Constitution of India. The said Rules are statutory in nature. The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the constitutional requirement for the purpose of discharging its duties under the 1 Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the Statutory Rules operating in the field. It may be that for certain purposes, for example, for the purpose of short-listing, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the Statutory Rules. It cannot take any action which per se would be violative of the Statutory Rules or make the same inoperative for all intent and purport. Even for the purpose of short-listing, the Commission cannot fix any kind of cut-off marks. [See State of Punjab vs. Manjit Singh, (2003) 11 SCC 559 : 2004 SCC (L&S) 73]." (Emphasis supplied) This decision thus lays down that while going through the selection process the J. & K. Public Service Commission must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of short-listing, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which per se would be violative of the statutory rules or make the same inoperative for all intent and purport. Even for the purpose of short-listing, the Commission cannot fix any kind of cut-off marks. In B. Ramakichenin alias Balagandhi Vs. Union of India and others,(2008) 1 SCC 362, the Union Public Service Commission issued an Advertisement dated 23-5-1998 for the post of Deputy Director (Agriculture) in the Agriculture Department, Government of Pondicherry. In paragraph 3.1 of the said Advertisement, the method of short-listing was given as follows :"The Commission may restrict the number of candidates on the basis of either qualifications and experience higher than the minimum prescribed in the Advertisement or on the basis of the experience higher than the minimum prescribed in the Advertisement or on the basis of experience in the relevant field." The Union Public Service Commission resorted to short-listing by laying down the criteria : "Only those who have two years' experience after getting M. Sc. Degree will be considered, while those who have got such experience but only before getting M. Sc. Degree will not be called for the interview". This criteria for short-listing was an objective and rational criteria. But the criteria was not in consonance with the Advertisement as the Advertisement did not mention that the two years' experience must be after getting M.Sc. Degree in Agriculture, but the criteria laid down by the Union Public Service 2 Commission specifically mentioned that experience must be after getting the Post Graduate Degree. Experience after getting M. Sc. Degree could not be said to be higher than the experience before getting M. Sc. Degree. It was held by the Supreme Court that as a particular method of short-listing was prescribed in Paragraph 3.1, it was not open to the Union Public Service Commission to resort to any other method of short-listing even if such other method could be said to be fair and objective. Their Lordships of the Supreme Court laid down as under (paragraphs 15,16,17,18,19,20 and 23 of the said SCC) : "15. It is well settled that the method of short-listing can be validly adopted by the selection body vide M.P. Public Service Commission Vs. Navnit Kumar Potdar, (1994) 6 SCC 293 (vide paragraphs 6,8,9 and 13) and Government of A.P. Vs. P.Dilip Kumar, (1993) 2 SCC 310. 16. Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the selection body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short- listing can be resorted to by the selection body, even though there is no mention of short-listing in the rules or in the advertisement. 17. However, for valid short-listing there have to be two requirements- (i) it has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a B.Sc. Degree, and if there are a large number of eligible applicants, the selection body can resort to short-listing by prescribing certain minimum marks in B.Sc. and only those who have got such marks may be called for the interview. This can be done even if the rule or advertisement does not mention that only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of short-listing is only a practical via media which has been followed by the Courts in various decisions since otherwise there may be great difficulty for the selecting and appointing authority as they may not be able to interview hundreds and thousands of eligible candidates ; (ii) if a prescribed method of short-listing has been mentioned in the rule or advertisement then that method alone has to be followed. 3 18. In the present case, no doubt, U.P.S.C. had resorted to an objective and rational criteria that only those who have two years' experience after getting M.Sc.Degree will be considered, while those who have got such experience but only before getting M.Sc. Degree will not be called for the interview. Ordinarily we should not have taken exception to this procedure since it is based on an objective criteria, and ordinarily this Court does not interfere with administrative decisions vide Tata Cellular Vs. Union of India, (1994) 6 SCC 651 : AIR 1996 SC 11. As observed in the said decision, the modern approach is for Courts to observe restraint in administrative matters. 19. Hence, if the method of short-listing had not been prescribed by U.P.S.C. or in a statutory rule, it is possible that the argument of learned counsel for the respondents may have been accepted and we may not have interfered with the method of short-listing adopted by U.P.S.C. since it appears to be based on a rational and objective criteria. 20. However, in this case we have noticed that in Para 3.1 of the advertisement of U.P.S.C. dated 23-5- 1998, the method of short-listing has been given. Hence U.P.S.C. cannot resort to any other method of short-listing other than that which has been prescribed in Para 3.1. In the said paragraph of the advertisement, it is mentioned that the Commission may restrict the number of candidates on the basis of either qualifications and experience higher than the minimum prescribed in the advertisement or on the basis of the experience higher than the minimum prescribed in the advertisement or on the basis of experience in the relevant field. In other words, it was open to U.P.S.C. to do short-listing by stating that it will call only those who have Ph.D. Degree in Agriculture (although the essential degree was only M.Sc. Degree in Agriculture). Similarly, U.P.S.C. could have said that it would only call for interview those candidates who have, say, five years' experience, although the essential requirement was only two years' experience. However, experience after getting M.Sc. Degree cannot be said to be higher than the experience before getting M.Sc. Degree. Also, the advertisement dated 23-5-1998 does not mention that two years' experience must be after getting M.Sc. Degree. 23. Had Para 3.1 not been in the advertisement of U.P.S.C. it is possible that we may have taken a view in favour of the respondents since in that case it was open to U.P.S.C. to resort to any rational method of short-listing of its choosing (provided it was fair and objective). However, in the present case, a particular manner of short-listing has been prescribed in Para 3.1. Hence, it is not open to U.P.S.C. to resort to any other method of short-listing even if such other method can be said to be fair and objective." (Emphasis supplied) 4 The following propositions, amongst others, have been laid down in the above decision : (i) Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the Selection Body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. (ii) For valid short-listing there have to be two requirements- (a) It has to be on some rational and objective basis ; (b) If a prescribed method of short-listing has been mentioned in the rule or advertisement then that method alone has to be followed. In such a case, it is not open to the Selection Body to resort to any other method of short-listing even if such other method can be said to be fair and objective. IN OUR OPINION, THE FOLLOWING PRINCIPLES, AMONGST OTHERS, EMERGE FROM THE ABOVE DECISIONS in regard to the question of screening and short-listing the applicants by laying down the procedure and the criteria in order to restrict the number of candidates to be called for interview : (1)(a) Even if it is not provided for in the Rules / Advertisement etc., the Selection Body may resort to screening and short-listing in order to restrict the number of candidates to be called for interview. (b) For this purpose, the Selection Body may lay down the procedure and the criteria. (c) The procedure and the criteria for screening and short-listing must be rational and reasonable. (d) In case, the relevant rules prescribe minimum qualifications for recruitment, the criteria for short- listing must be based on such minimum qualifications. Thus, if minimum qualifications contemplate "academic qualification", the criteria may prescribe higher academic qualifications for short-listing. 5 Similarly, if minimum qualifications contemplate "experience" then the criteria may provide for higher experience for short-listing. (e) "Experience" is an objective, reasonable and rational criterion. But if minimum qualifications do not require "experience" then this may not be a criterion for screening and short-listing. (f) The candidates who fulfil the minimum qualifications, cannot be excluded at the threshold by changing the minimum qualifications or providing for cut-off marks. However, it is open to the Selection Body to provide certain marks for higher qualifications - i.e., for higher academic qualifications where minimum qualifications provide for academic qualifications, or for higher experience where minimum qualifications provide for experience. It is also open to the Selection Body to prepare a merit list on the basis of minimum qualifications, and then call requisite number of candidates for interview on the basis of such merit list. In short, the minimum qualifications cannot be changed by the Selection Body so as to exclude the candidates fulfilling such minimum qualifications. However, for screening and short-listing, the Selection Body may provide marks for higher qualifications, or may prepare merit list on the basis of such minimum qualifications and call requisite number of candidates for interview on the basis of such merit list. 2. If the Rules/ Advertisement provide for screening and short-listing, and lay down the procedure and the criteria in this regard, then such procedure and criteria must be strictly adhered to for screening and short-listing. No deviation is permissible from such procedure or criteria. However, if the procedure and / or the criteria, as laid down in the Rules / Advertisement, are in general terms then the Selection Body may lay down the details of such procedure and / or criteria keeping in view the above-noted Principles No. (1)(b) to (f), provided such details do not in any manner deviate from the basic procedure or criteria as laid down in the Rules/ Advertisement. Keeping in view the above Principles under Category (1) and Category (2), let us consider the present case. 6 The present case falls under Category (2), as Regulation 6 of the Teachers Selection Regulations provides the procedure as well as the criteria for screening and short-listing. Clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations provides for short-listing the number of candidates to be called for interview by holding preliminary screening or holding competitive examination in the case of the post of a teacher / lecturer. In the present case, no competitive examination has been held. Instead, short-listing has been done by preliminary screening. Such preliminary screening in the case of the post of a teacher /lecturer is to be done "on the basis of academic record", as per clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations. Hence, the criterion for preliminary screening and short-listing the number of candidates to be called for interview in the case of the post of a teacher / lecturer, as per the Teachers Selection Regulations, is "academic record". However, the said Regulations do not lay down as to what factors are to be included in the "academic record" of a candidate. It is true that Regulation 3 of the Teachers Selection Regulations provides that the "minimum qualifications" for appointment of a teacher shall be as given in the Statutes of the Universities. But the words "academic record" are wider in scope than the words "minimum qualifications" because "academic record" may include academic achievements beyond the minimum qualifications. As the criterion "academic record" for preliminary screening and short-listing the number of candidates to be called for interview in the case of the post of a teacher / lecturer, as per the Teachers Selection Regulations, is in general terms, the Commission has framed Guide-lines in exercise of its power under clause (a) of Section 11 of the Services Commission Act laying down various factors to be included in the "academic record" and allocating Screening Index Marks for such factors. Such factors, as noted earlier, are as follows : (I) Graduate Degree. 7 (II)Post-Graduate Degree. (III)NET/SLATE/M.Phil., Ph.D., J.R.F., Gold Medal/ Chancellor Medal. (IV)Experience R.A./ P.D.F. working in Research Projects financially maintained by U.G.C. /C.S.A.R. /I.C.A.R. Regularly selected teacher working in the Lecturer's Pay-scale in Degree Colleges on grant-in-aid, or J.R.F. and S.R.F. teaching in the Universities and Associated Degree Colleges. So far as factors (I), (II) and (III) above, are concerned, there can be no dispute that these are part of "academic record". In fact, factors (I), (II) and NET in (III) are also part of minimum qualifications for appointment on the post of lecturer. Further, working experience of R.A./P.D.F. in "Research Projects", mentioned in factor (IV) above, may be said to be part of "academic record." However, the difficulty arises in taking into account "teaching experience", mentioned in factor (IV) above, and allocating Screening Index Marks (maximum 5) for such "teaching experience". Normally, keeping in view the Principles mentioned above, "teaching experience" would be regarded as an objective, reasonable and rational factor / criterion for screening and short-listing. But in the present case, the criterion for preliminary screening and short-listing the candidates for the post of teachers/ lecturers, as laid down in clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations is "academic record". Question arises as to whether "teaching experience" can be said to be a part of "academic record." If "teaching experience" is part of "academic record" then the Guide-lines framed by the Commission providing Screening Index Marks for "teaching experience" are valid. But if "teaching experience" is not 8 part of "academic record" then the Guide-lines in- so-far as these provide Screening Index Marks for teaching experience, are invalid. Now, as commonly understood in the academic field, "academic record" and "teaching experience" are two distinct concepts. "Academic record" is a record of academic achievements of a person. On the basis of "academic record", one enters the "teaching" profession, and gets "teaching experience". Hence, "teaching experience" cannot be treated as a part of "academic record." This is also evident from the Hindi version of clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations, which uses the words "SHAIKSHIK ABHILEKH" ....Vernacular Text Ommited....as equivalent of "academic record". Again, a comparison of clause (i) and clause (ii) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations shows that the Regulations use the expressions "academic record" and "teaching experience" in distinct senses. Clause (i) contemplates preliminary screening and short-listing on the basis of "academic record" in regard to the post of teachers / lecturers, while clause (ii) contemplates preliminary screening and short- listing on the basis of "academic record, teaching the administrative experience" [i.e."SHAIKSHIK ABHILEKH, ADHYAPAN AUR PRASHASANIK ANUBHAV" ....Vernacular Text Ommited...., as per the Hindi version of the Regulations]. Thus, the Teachers Selection Regulations draw a clear distinction between "academic record" and "teaching experience". Therefore, "teaching experience" cannot be treated as a part of "academic record" in the context of clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the said Regulations. Hence, "teaching experience" cannot be made a factor for preliminary screening and short-listing for the post of teachers / lecturers on the basis of "academic record", as contemplated in clause (i) of the above proviso. The impugned Guide-lines framed by the Commission for preliminary screening and short-listing for the post of teachers / lecturers, as noted above, provide for taking into account "teaching experience" as 9 one of the factors and allocate Screening Index Marks for the same. This is evidently in conflict with the criterion "academic record" as provided in clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations. In our view, the Guide-lines are framed by the Commission in exercise of its power under clause (a) of Section 11 of the Services Commission Act for supplementing the Regulations framed in exercise of power under Section 31 of the Services Commission Act so as to provide details where the Regulations are in general terms . Such Guide-lines cannot be inconsistent with, that is, cannot run counter to or come in conflict with the Regulations. If the Guide-lines are inconsistent with, i.e., run counter to and are in conflict with the Regulations then such Guide-lines are invalid to the extent of inconsistency. Therefore, the impugned Guide-lines in-so-far as these provide for taking into account "teaching experience" as one of the factors for preliminary screening and short-listing for the post of teachers / lecturers and allocate Screening Index Marks for the same, are invalid being inconsistent with clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations. The question may be examined from another angle. Even if the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations were not there, the Commission was required to keep in view the provisions of Regulation 3 of the said Regulations read with the Statutes of the Universities in regard to the minimum qualifications for the post of teacher / lecturer. As noted earlier, the Statutes of the Universities provide only academic qualifications as minimum qualifications. Therefore,for preliminary screening and short-listing, the Commission may provide marks for higher academic qualifications. But as "teaching experience" is not a requirement of minimum qualifications, "teaching experience" cannot be provided as a factor to be considered for preliminary screening and short-listing. This follows from Principle No.(2) read with Principles No. (1)(d), (e) & (f),noted above. Hence, we are of the opinion that the Commission could not provide "teaching experience" as a factor for preliminary screening and short-listing of the candidates at the threshold in order to restrict the number of candidates to be called for interview. Of course, once the candidates are called for interview, "teaching experience" may be considered as one of the relevant factors for selection. 0 Therefore, we conclude that the impugned Guide-lines framed by the Commission in the year 2008 (Annexure CA-3 to the Counter Affidavit on behalf of the Commission) in regard to Advertisement No.41 of 2007, are invalid in-so-far as these Guide-lines provide for taking into account "teaching experience" as one of the factors for preliminary screening and short-listing the candidates to be called for interview for the post of teachers / lecturers, and allocate Screening Index Marks for the same. Question No. 2, as noted above, is as to whether the decisions of this Court in regard to the validity of the Guide-lines framed by the Commission in the year 2000 (wherein Screening Index Marks were awarded regarding "teaching experience") are binding precedents, and the impugned Guide-lines should be upheld in view of the said decisions. In its meeting held on 29-7-2000, the Commission framed Guide-lines, copy whereof has been filed as Annexure CA-7 to the Counter Affidavit on behalf of the Commission. The said Guidelines provided "teaching experience" as a permanent lecturer as one of the factors for preliminary screening and short- listing of the candidates for the post of teachers / lecturers, and allocated a maximum of 10 marks for the same. The validity of the said Guide-lines framed by the Commission was the subject-matter of various cases before this Court. In Civil Misc. Writ Petition No. 52271 of 2000, Dr. Smt. Sushma Chauhan Vs. State of U.P. and others, decided on 6-12-2000, a Division Bench of this Court opined as under (See Annexure CA-8 to the Counter Affidavit on behalf of the Commission): "Heard Sri Shishir Kumar for the petitioner and Sri H.R. Misra, learned counsel representing the respondent - Commission. The petitioner applied for appointment to the post of Lecturer in Botany, though she is possessed of the minimum qualification prescribed in the Statute yet she has been screened out on the basis of the criteria laid down by the Commission in its 567th meeting held on 20-9-2000, a copy of which is annexed to the counter affidavit filed today. 1 We have perused the criteria laid down by the Comission for screening the candidates and are satisfied that the criteria does not suffer from vice of arbitrariness. In the circumstances, no case is made out for interference. The writ petition is devoid of merits. It is, accordingly, dismissed." In Civil Misc. Writ Petition No. 49621 of 2002, Dr. Rajendra Prasad Dubey Vs. U.P. Higher Education Service Commission through its Secretary, decided on 28-11-2002, a Division Bench of this Court laid down as follows : "Heard the learned counsel for the parties. The petitioner has prayed that he should be considered for interview for the post of Lecturer in Economics. A short counter affidavit has been filed by the U.P. Higher Education Service Commission and in paragraph 6 of the same it has been stated that the procedure of short-listing on the basis of merit was adopted. It has been further stated that the petitioner had obtained 66 marks in the merit index while the last candidate called for interview had obtained 76 marks and had throughout obtained first division; whereas the petitioner obtained second division. The method of short-listing procedure has been upheld by this Court in Writ Petition No. 42013 of 1999, Dr. Kiran Bala Singh Vs. The U.P. Higher Education Service Commission, ALLahabad and another decided on 1-10-1999 and Writ Petition No. 2021 of 2000, Bhaskar Awasthi Vs. U.P. Higher Education Service Commission, ALLahabad. These decisions have followed the decision of the Hon'ble Supreme Court. Learned counsel for the petitioner then contended that weightage of 5 marks has illegally been given to the teachers /candidates, who were appointed on Honorary basis under G.O. Dated 7-4-1998 vide Annexure-1 to the Writ Petition. Sri Pradeep Kumar, learned counsel for the U.P. Higher Education Service Commission has produced the record before us showing that the petitioner has also been given 4% marks as weightage in this connection. Hence the petitioner has also got the benefit of the G.O. Dated 7.4.1998, and hence he cannot complain in this connection. In fact the last selected candidate who has got 76 marks, has not been given any weightage. Thus there is no force in this writ petition. It is dismissed." 2 In Civil Misc.Writ Petition No 52020 of 2002, Smt. Upasna Sharma Vs. U.P. Uchchatar Shiksha Sewa Ayog through its Secretary, decided on 4-12-2002, a Division Bench of this Court opined as under : "Petitioner has prayed that he may be called for interview for being appointed as Lecturer in Economics in a Degree College. The learned counsel for the U.P. Higher Education Service Commission Sri D.K. Tripathi has appeared before us and has stated that he has obtained instructions from the Commission. The Commission adopted the practice of short-listing. The petitioner has obtained 70 index marks whereas the last candidate called for interview has obtained 76 index marks. The procedure of short- listing has been upheld by this Court in a large number of decisions and it has also been upheld by the Supreme Court vide decision in Dr. Rajev Dubey Vs. State of U.P. and others decided on 9-1-2000. For the reasons given above, this writ petition is dismissed." In Civil Misc. Writ Petition No. 4304 of 2003, Rakesh Singh Vs. U.P. Higher Education Service Commission and another, decided on 24-1-2003, a Division Bench of this Court referred to and followed several earlier decisions of this Court, and held as under (See Annexure CA-9 to the Counter Affidavit on behalf of the Commission): "We have heard learned counsel for the petitioner. Sri Pushpendra Singh has appeared for the respondents. The petitioner was short-listed, and hence he was not called for interview for the post of lecturer. The petitioner had 66 points and the last candidate called for the interview had 80 points. The method of short-listing has been adopted which has been upheld by several Division Bench decisions of this Court vide Civil Misc. Writ Petition No. 52020 of 2002, Smt. Upasana Sharma Vs. U.P. Uchchatar Shiksha Seva Ayog, decided on 4-12-2002. Civil Misc. Writ Petition No. 10255 of 2000, Smt. Manju Singh Vs. State of U.P., decided on 28-2-2000, Civil Misc. Writ Petition No. 9873 of 2000, Dr. Sudha Singh Vs. State of U.P., decided on 23-2-2000, Civil Misc. Writ Petition No. 2021 of 2000, Bhaskar Awasthi Vs. U.P. Higher Education Service Commission, Civil Misc. Writ Petition No. 16569 of 1999, Dr. Ajay Malviya Vs. State of U.P., decided on 20-4-1999, Writ Petition No. 49621 of 2002, Dr. R.P. Dubey Vs. U.P. Higher Education Service Commission, decided on 28-11-2002 etc. Following the aforesaid decisions this petition is dismissed." 3 Thus, the validity of the Guide-lines framed by the Commission in the year 2000 (Annexure CA-7 to the Counter Affidavit on behalf of the Commission) has been upheld in the above decisions given by various Division Benches of this Court. The said Guide-lines, as noted above, provided "teaching experience" as one of the factors for preliminary screening and short-listing of the candidates for the post of teachers / lecturers, and allocated Screening Index Marks for the same. However, with deep respect for the learned Judges who gave decisions in the above cases, the question as to whether in view of clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations, or as to whether in view of Regulation 3 of the Teachers Selection Regulations, it was permissible for the Commission to provide in its Guide-lines, "teaching experience" as one of the factors for preliminary screening and short-listing, and allocate Screening Index Marks for the same, was not considered in the above decisions. In our opinion, as discussed earlier, in view of clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations, as also in view of Regulation 3 of the Teachers Selection Regulations, it is not permissible for the Commission to provide in its Guide-lines, "teaching experience" as one of the factors for preliminary screening and short-listing of the candidates to be called for interview, and allocate Screening Index Marks for the same. The impugned Guide-lines framed by the Commission in the year 2008 (Annexure CA-3 to the Counter Affidavit on behalf of the Commission) are invalid in-so-far as these Guide-lines provide for taking into account "teaching experience" as one of the factors for preliminary screening and short-listing the candidates to be called for interview for the post of teachers / lecturers, and allocate Screening Index Marks for the same. However, as the validity of the Guide-lines framed by the Commission in the year 2000 wherein "teaching experience" was provided as one of the factors for preliminary screening and short-listing of the candidates to be called for interview, and Screening Index Marks were allocated for the same, has been upheld by this Court in a series of decisions noted above, and the Commission has provided Screening Index Marks for "teaching experience" in its Guide-lines in regard to the Advertisement in question, namely, Advertisement No. 41 of 2007, and as the above question regarding validity of the Guide-lines framed in the year 2000 in the context of Regulation 3 of the Teachers Selection Regulations or in the context of clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations, was not considered in the above decisions, we, sitting in a Division Bench, cannot take a different and contrary view. Therefore, it will be appropriate that the matter be referred to a larger Bench. 4 As we are of the view that the matter be referred to a larger Bench, we are not expressing any opinion on the questions as to whether the above decisions are binding precedents, or the same are per incurium as the provisions of Regulations 3 and 6 of the Teachers Selection Regulations were not noticed, or the same are sub-silentio, or as to whether the doctrine of stare decisis applies. In view of the above, we refer the following question for decision by a larger Bench : Whether in view of the provisions of the U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, particularly, Regulations 3 and 6 thereof, the Guide-lines framed by the U.P. Higher Education Services Commission in the year 2008 in regard to the selection pursuant to Advertisement No. 41 of 2007, wherein "teaching experience" has been provided as one of the factors for preliminary screening and short-listing the candidates to be called for interview for the post of teachers / lecturers are valid ? Let the papers be placed before the Hon'ble The Chief Justice for appropriate orders.