Hari Nandan Singh etc. vs U.P.Higher Education Services Commission,Add.and Another

N. L. Ganguly, J.—All the abovementioned writ petitions are in respect of the office of the Principal of Udit Narain Post Graduate College, Padrauna, district Deoria, which had fallen vacant and was to be filled in after selection by the U. P. Higher Education Service Commission.

Writ Petition No. 10929 of 1986 was filed by Dr. Hari Nandan Singh hereinafter referred to as Sri H. N. Singh, who prayed for issuing a writ of mandamus restraining the U. P. Higher Education Service Commission, hereinafter referred to as ''Commission'', and opposite party No. 2 Sri Ram Deo Ojha, hereinafter referred to as Sri R. D. Ojha from interfering in any manner whatsoever in pursuance of the selection list dated 3151986 and 2851986 Anuexures 5 and 5A by the Commission and prayer for permitting the petitioner Sri H. N. Singh to function as Principal and be paid salary of the Principal of the said College. Injunction was prayed restraining Sri R. D. Ojba from joining the post of Principal of the College on the basis of the selection list dated 3151986 and 2851986.

Writ Petition No. 7932 of 1989 has been filed by Dr. Harish Chandra Verraa by which he has prayed for a writ for quashing the advertisement No. 12 dated 15101988 issued by the Commission so far it relates to D. A. V. Post Graduate College, District Azamgarh. The prayer for not making an appointment on the post of Principal at D. A. V. Post Graduate College, Azamgarh be made on the basis of the interview in respect of the advertisement dated 15101988, In this petitioner Dr. H. N. Singh and Dr. R. D. Ojha were not arrayed as parties. An interim order was passed on 1751985 by which it was directed that the selection for appointment of Principal may go on but no appointment in pursuance thereof should be made. Counter and rejoinderaffidavits have been exchanged.

Writ Petition No. 24619 of 1992 was filed by Sri R. D. Ojha impleading Sri H. N. Singh, Committee of Management of the College through Sri Ratanjeet Pratap Narain Singh, Director of Education, D. D. �., D. I. O. S., State of U. P. The petitioner Sri R. D. Ojha claimed that he had been duly selected by the Commission, given appointment letter and took charge of the office of the Principal but was not paid salary for the post of Principal in question, a prayer for writ of mandamus commanding the payment of salary as Principal was made. Counteraffidavit has been filed by Dr. H. N. Singh and an application for impleadment of Kunwar Ram Pratap Narain Singh, Manager/Secretary of the Committee of Management of the College was submitted. No counteraffidavit has been filed nor the matter was taken up.

Dr. H. N. Singh inspite of the fact that his earlier writ petition was pending, filed Writ Petition No. 3339 of 1992 which was presented before the Division Bench on 1491992 praying for a writ of certiorari quashing the order dated 3181992 passed by the Director of Higher Education, U. P. by which direction was issued for payment of salary to Sri R. D. Ojha w.e.i. 3031992. The Division Bench by order dated 1421992 was pleased to pass an interim order "until further orders of this Court, the salary in dispute shall not be paid to the petitioner nor the respondent Dr. R. D. Ojha."

Writ Petition No. 20248 of 1993 was filed by Dr. H. N. Singh inspite of the fact that two of his earlier writ petitions are pending before this Court. The petitioner Dr. H. N. Singh prayed for a writ of certiorari quashing Annexure 6 order dated 2851993 passed by the Director, Higher Education, U. P. by which it was directed to the Manager of the Committee of Management of the College that in compliance with the orders of the Hon''ble High Court dated i491992, Dr. R. D. Ojha be permitted to continue and discharge the duties of the Principal of the Degree College, since he is the duly ticketed Principal for the College by the Commission. However, it was directed that in view of the order of the Hon''ble High Court, payment of salary, shall not be made till further orders are given by the Court. No counter or rejoiuder affidavits have been filed in this writ petition. An interim order was passed by the learned Single Judge staying the operation of the order impugned till 31st July, 1993.

Writ petition No. 6966 of 1995 has been filed by Dr. H. N. Singh by which he has prayed for writ of certiorari quashing the order dated 8th March, 1995, Annexure 8, passed by the Director of Higher Education, Allahabad, by which he had informed the Regional Higher Education Officer, Gorakhpur that Dr. R. D. Ojha is duly selected and appointed Principal of Udit Narain Post Graduate Degree College, Padrauna district Deoria. No interim order was passed in this case. This petition was fourth writ petition by Dr. H. R Singh, one after the other, which are all pending. The Division Bench was pleased to direct that this petition be also listed alongwith the writ petition No. 10929 of 1986.

Since writ petition No. 10929 of 1986 filed by Dr. Sri Hari Nandan Singh, petitioner is the earliest writ petition filed so far as the dispute raised by the petitioner is concerned, we propose to consider and treat this writ petition as the leading writ petition. By this writ petition, the petitioner prayed for issuing a writ of mandamus restraining the respondent Nos. 1 and 2 from interferring in any manner whatsoever in pursuance of the order and selection list dated 3151986 and 2851986 Annexures 5 and 5A of the U. P. Higher Service Commission, hereinafter referred to as Commission, and he may be paid the salary as Principal of Udit Narain Post Graduate College, Padrauna, Deoria and also regularise the petitioner on the said post. The other relief is for a mandamus restraining the respondent Sri Ram Deo Ojha to join the College as Principal on the basis of the impugned order and selection list. Further prayer is for quashing the aforementioned order and selection list.

The petitioner Dr. H. N. Singh claimed to be appointed in December, 1983 as ad hoc basis Principal of the College after approval by the Chancellor of the University. Advertisement for regular appointment on the post of Principal was published by the Commission dated 21121985. The petitioner submitted application with biodata in his application form. The Commission interviewed persona and Dr. Ram Deo Ojha, respondent No. 2 was selected toe appointment on the Post of Principal. The petitioner pleaded that on enquiry he received information that Dr. Ojha did not possess even minimum qualification required for the post and he was not entitled to be qualified for interview and selected for appointment as Principal. It is pleaded that the application form submitted by Dr. Ojha does not indicate in response to which advertisement, the application was submitted. Number of columns in the application were unfilled. He had not claimed any exemption from the essential qualifications. Inspite of all aforesaid deficiencies and lack of qualification, the Commission issued interview call to him and he was selected as Principal. It is said that from the Commission''s record it is not found that the Secretary of the Commission or any responsible officer of the Commission took a decision for issuing interview call letter to Dr. Ojha. Petitioner suspected manipulation at the instance of Dr. Ojha for getting interview call letter, petitioner stated that the Committee of Management of the Institution had written to the Commission that it was trying to have post Graduate course for Math, recognized by the Gorakhpur University. The petitioner since was efficiency discharging his duties and was quailed in Math, for teaching Post Graduate classes was eligible for being selected as Principal of the College. The institution since had written to the Commission that they were trying to get recognition for Math, in Post Graduate classes, a request was made to postpone the selection for the post of Principal till such time, so that necessary orders for approval for Math. Post Graduate class be obtained from the University. It is said that inspite of the said request for stay of the Management Committee, the Commission proceeded for making selection for appointment of Principal.

The petitioner stated that Sri Ojha obtained 49.6% marks in Intermediate, 51.4% in B. A. and had wrongly said in the application form that he had obtained 54% marks in B. A. and he had obtained 57.15% marks in M.A. Thus, the submission is that Sri Ojha did not possess consistently good academic record. Petitioner stated that a candidate is required either to have secured 55% average marks in Intermediate and B. A. or 50% marks in each examination. Neither of these two conditions were fulfilled by Sri Ojha as he had obtained less than 50% marks classwise. Sri Ojha did not claim any exemption from the essential qualification and there was no justification for granting him any exemption by the Commission at the time of issuing of interview card. The Experts of the subject concerned have not applied their mind to this aspect, U is also stated that the socalled research work of Sri Ojha was not of such high character which may entitle him to get exemption. Apart from it, Sri Ojha had not given details of his research work or precise of his work in the application form, so that the same could have been evaluated. Perusal of the form submitted by Sri Ojha indicated that column meant for Ph.D. qualification is wholly blank. The petitioner said that Sri Ojha had no publication of research work or any achievement published in any recognised journal nor he mentioned these facts in his application. Counteraffidavit has been filed by Sri Ojha and also by the Commission. A supplementary counteraffidavit has also been filed on behalf of the Commission. It has been stated by Sri Ojba that the petitioner filed a writ petition No. 22 of 1984 in which an interim order was passed but the same was vacated by the Hon''ble High Court on 751985, A second writ petition was filed being writ petition No. 39457 of 1985 before the Lucknow Bench, in which also stay granted was later vacated. The petitioner without disclosing the abovementioned facts, filed the present writ petition and obtained the interior order dated 781936. Sri Ojba seated that the petitioner has wrongly stated that the application form submitted by him was without material particulars therein and columns were left unfilled. He denied that he lacked necessary essential qualifications. The respondent Sri Ojha stated that be had filled necessary columns in the application form and had also annexed the true copies of the marksheets from Intermediate to M. A. examination passed by him and also disclosed the thesis Pa D. submitted by him. Sri Ojha stated that he has been teaching graduate classes since August 1963 and Post Graduate Classes from 1971 till date. He was selected as Head in the subject in November, 1971, at R. P. G. College, Basti and he was appointed as ad hoc Principal of Sheo Harsh Kisan Post Graduate College, Basti on 3101982 to 331984 and after selection by the Commission at the Institution Padrauna.

Sri Ojha received two letters of appreciation from the ViceChancellor, Gorakbpur University daring the period he worked as ad hoc Principal for his best work. Sri Ojha stated that at the time of selection held by the Commission, only two subjects Hindi and Political Science were taught in the College for the Post Graduate Classes. Since the respondent Sri Ojha possesses qualification in a subject taught in Post Graduate Classes in the College, was duly selected by the Commission and the petitioner being not a qualified person in either of the subjects, was not selected. The respondent stated that it was not necessary to publish their research papers in journal.

Sri S. S. Tandon, Secretary of the Commission filed his affidavit. In the counteraffidavit it has been said by Sri Tandon that the application form of Sri Ojha respondent was examinee! and ail relevant informations required were available. As such, there was no illegality on this count. The blank left in the form could have been filled by the candidate for the convenience of scrutiny of the form. However, no relevant information was withheld and the form was thoroughly scrutiaised on that basis. There was no mistake at all in the scrutiny of the form by the Secretary, as well as, by the Commission itself. The allegation of manipulation by Sri Ojha in getting the interview letter issued was denied. The candidature of Sri Ojha respondent was examined and the relaxation required to the respondent was duly granted by the Commission after examining the general suitability for the post of Principal.

Learned counsel for the petitioner Sri R. N. Singh placed Statute 11.01 (7) (d) of Chapter XI of the Garakhpur University to show and explain "consistently good llnd Division" and also referred to the requisite minimum qualification and experience for relaxation published in the advertisement by the Commission. Statute 11,01(7)(d) is quoted below :

"A candidate (other than a candidate for lecturership in the Faculties of Education and Law) having obtained either an average of S3 per cent marks in the two examinations prior to Master''s degree that is to say Intermediate and Bachelor''s degree examination (irrespective of the marks obtained in any of the two examination),, or 50 per cent marks in each of the two examinations separately, is said to have consistently good academic record."

The extract of the advertisement in Hindi is reproduced below :

Sri J. B. Sinha, Dy. Secretary of the Commission also filed a supplementary counter affidavit. In the supplementary counter affidavit of Sri J. .B. Sinha that in respect to advertisement No. 1/83, 24 posts of Principals in the Post Graduate Colleges were advertised by the Commission for which petitioner has also applied but his name was screened out and therefore, he was not called for interview. The petitioner had filed writ petition No. 22 of 1984 and the ex parte interim order obtained by him was vacated on 1211984. The said writ petition is still pending. The petitioner also filed writ petition No. 3945 of 1985 claiming himself to be regularised as he was f auctioning on ad hoc basis from December, 1983. The regularisation was claimed by the petitioner on the ground that since other teachers have been regularised, the petitioner who was working on ad hoc basis is also entitled to be regularised and the said writ petition is also pending.

The petitioner applied in respect to Advertisement No. 88 of 1985 in which 19 posts of Principals for Post Graduate Colleges were to be selected. The petitioner was also issued interview letter as he was found qualified in screening by the Commission. The Commission took interview and the Experts of the Commission found that the petitioner was not suitable. The allegation that the petitioner possesses superior merit was denied. It has been stated that under Section 11A guidelines in the matter relating to the method of recruitment to the teachers is provided. The Commission in exercise of power under Section 31 of the U. P. Higher Education Service Commission Act framed Regulations known as U. P. Higher Education Service Commission (Procedure for Selection Committee) Regulation, 1983. Regulation 6(2) of the said Regulation provides that Commission shall interview candidates in accordance with the standard and guidelines set out by it. It has been stated specifically that the Commission at the stage of screening looked into the matter and applied its mind and unanimously resolved in favour of granting relaxation to Sri R. D. Ojha and was placed in category ''K'' alongwith the other candidates, who were called for interview. Similar relaxation was given to as many as 22 candidates, who were called for interview with Sri Ojha in Category ''K''. The report of relaxation has been signed by the Chairman and all the members of the Commission. The court was pleased to direct the learned counsel representing the Commission Sri Vijai Bahadur Singh to produce the original record and it has been produced before the Court. The original report shows that relaxation was granted by the Commission from the requirement "consistently good academic record with 1st or high Ilnd class amongst the degree" with signatures of all the members of the Commission.

It has been stated by Sri J. B. Sinha, Deputy Secretary that petitioner possessed Post Graduate Degree in Math, the subject of Math is not being taught in Udai Narain Post Graduate Degree College, Padrauna, as such he was not found to be entitled at all for being appointed as Principal of the said College. At the same time, it has been said that there are 19 Post Graduate College for which the advertisement was made. There are only 7 Colleges where Math is taught in Post Graduate available and in all these 7, colleges, the candidates who have been selected possessed much higher mark in comparison to the petitioner who were recommended by the Commission for appointment and there is no occasion for permitting the petitioner to join in those colleges where Math is taught. The Commission also took note of the fact that Sri Ojha possesses long teaching experience of 25 years in Graduate classes and 14 years teaching in Post Graduate classes besides his Ph. D. and once Selection Committee has found him suitable and selected him, the challenge and grievance of the petitioner is unfounded.

Sri Ashok Khare representing Sri Ojha raised a preliminary objection and cite decisions 1986 UPLBEC 657, Dr. Prabhat Kumar v. Banaras Hindu University, Varanasi and 1982 UPLBEC 519, Dr. R. C. Gupta v. Chancellor, Kumaon University. Learned counsel Sri Ashok Khare submitted that the writ petition is liable to be dismissed, as not maintainable. In view of the said decision, I do not consider to dismiss the present writ petition on the ground suggested by Sri Ashok Khare rather would consider the case on merits.

Sri R. N. Singh formulated and addressed the court on following points:

(i) Whether it is open to the Commission to grant relaxation on the basis of the possession of Ph. D. Degree irrespective of the merit;

(ii) Whether the Commission replaces Selection Committee or Committee consisting of members of Commission and Experts i. e. interview Board is equivalent to Selection Committee.

(iii) Whether in the garb of screening a method can be evolved which is against the statutory provisions inasmuch as of the statute provide minimum qualification would be relaxed in view of the high standard of research work but while screening the applications, group *K'' as made by the Commission, wherein all persons who have Ph. D. degrees have been called granting relaxation as against the requirement of high standard of thesis for enabling the relaxation. In the absence of such guidelines framed by the Commission, the grant of relaxation to Ph. D. holders is nullifying the effect of the statutory provisions.

(iv) The relaxation granted by the Commission is arbitrary and based on no material. Neither the statute nor the law provides such relaxation as was given in the present case to the Ph. D. holders.

Sri R. N. Singh submitted that Ch. XI of .the Oorakhpur University Act Regulation 11.01 clause (5) provides :

"If the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of very nigh standard, ft may relax any of the qualifications prescribed in subclause (b) of clause (1), or subclause (b) of clause (3), as the case may be,

Sri R. N. Singh cited AIR 1975 SC 915, Ram Chandra Keshav Adke (dead) by LRs. v. Govind Joti Chavara, and referred to para 25 which is quoted below :

"A century ago, in Taylor v. Talyor, (1875)1 Ch. D. 426, Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmad v. Emperor, 63 Ind App 372(AIR 196 PC 253 (2) and later by this Court in several cases. Shiv Bahadur Singh v. State of U. P., 1954 SCR 1098 ; AIR 1954 SC 322 ; 1954 Cri LJ 910 SCR 662 ; AIR 1961 SC 1529 ; 1961 (2) Cri LJ 708 ; to a Magistrate making a Code of Criminal Procedure 1898, This rule squarely applied "where indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell''s Interpretation of Statutes, llth Ed. pp. 362363. "The rule will be attracted with full force in the present case, because non verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the Legislature to prohibit the verification of the surrender in a manner, other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of Section 5(3 )(b)."

Another decision of AIR 1991 SC 537, Shrilekha Vidyarthi v. State U. P. was cited for the submission that individual cases for relaxation was to be considered and decided. By quoting para 25 of AIR 1975 SC (supra) and the observations of the Hon''ble Supreme that:

"The Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity countrary to the professed ideals in the Preamble. Exclusion of Art. 14 in contractual matters is not permissible in constitutional scheme ...... Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, it can be said that the ultimate impart of all actions of the State or a public body bearing undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. Therefore, it would be difficult and unrealistic to exclude the State actions in contractual matters."

The learned counsel for the petitioner since pointed out that a general relaxation was granted which was not permissible according to the Statute. The original record of the Commission was obtained and perused by the court. The record shows that 35 persons have submitted applications for the post of Principal ia pursuance of the advertisement in question. It is not a grant of general relaxation to all the persons having Ph. D, All the 35 persons shown in the record possessed Ph O. But all of them have not been granted relaxation. Thus, it is wrong to assert that it was a general relaxation granted by the Commission without application of mind. Tha record further shows that a chart was prepared giving details of the subjects and only 22 persons were granted relaxation after application of mind in the grounds as per note appended in the record granting relaxation ; (a) Consistently good academic record with I or high II class Masters Degree, (b) from the requirement of a Doctorate Degree in view of the fact that candidate possessed experience of teaching of Degree classes and Post Graduate classes, (c) at the merit rank of the candidate no vacancy available in the college teaching the subject of specilisation and thus, not possible to offer placement to the candidate without adversely affecting another candidate higher of a merit in rank. The report of the granting of the relaxation by the Commission is on record. The argument of the learned counsel for the petitioner that relaxation as a general was granted to all Ph. D. holders and things were not done as it should have been done is not correct and warranted from the record.

The learned counsel for the respondent placed AIR 1965 SC 491 The University of Mysore v. C.D. Govinda Rao, AIR 1990 SC 434 ; Dalpat Abasaheb Solunki v. Dr. D. S. Mahajan, AIR 1990 SC 120 ; Km. Nilima Misra v, Dr, H. K. Pental, 1993 Vol. VI JT 473 ; Chancellor v. Dr. Vijiyanand Kar. Sri Ashok Khare submitted that in 1965 SC (supra) the apex Court was pleased to observe at para 13 :

"We are unable to see the point of criticism of the High Court in such academic matters. Board "of Appointments are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the courts should be low to interfere with the opinion expressed by the experts. There is na allegation about malafide against the experts who constituted the present Board and so, we think, it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems."

Sri Ashok Khare, referred to para No. 9 of AIR 1990 SC 437 and , submitted that the Apex Court was pleased to observe ;

" ........ the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon the deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interferred with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc."

Similar view was taken in AIR 1990 SC 1402 (supra) referring para 32 of the said judgment. In 1993 (2) JT 472 the abovementioned view of the Supreme Court was reiterated.

Sri Ashok Khare placed reliance on the following decision 1986 (2) UPLBEC 1156, C/M. B.B.D. Degree College v, State of U. P. ; 1986 (2) UPLBEC 1353 ; Gaya Ram Pandey v. U.P. Higher Education Service Commission ; 1986 (2) UPLBEC 1407, Tara Chand Pathak v. State of U. P. ; 1987 UPLBEC 246, Dr. Sushma Misra v. (/. P. Higher Education Service Commission, for the proposition that the guidelines framed by the U. P. Higher Education Service Commission for Screening and calling candidates for interview and the power of relaxation vested in the Commission. In 1986 Vol. II UPLBEC 1166, C/M. R. B. Dass Degree College, Faizabad v. State of U. P., it was held by the Division Bench that it is not in dispute and indeed cannot be disputed that the Commission has got power to relax the minimum qualification prescribed for the post of Principal. Further it held that it is true that the respondent has not expressly asked for relaxation of the minimum qualification prescribed for the post of Principal but, in our opinion, it makes little difference if the relaxation is granted by the Commission. It does not take away the power of the Commission to relax the qualification in appropriate cases. The exercise of that power does not depend upon the request of the candidate. It is a power preserved to the Commission. The Commission was at liberty to exercise that power if the candidate is otherwise suitable with due regard to his high standard of research work.

The arguments of the learned counsel for the petitioner that the column in the application form filled by the respondent as incomplete, thus it becomes irrelevant even no request was made the marksheet etc. were submitted as Annexure with the application which was taken note of by the Commission for granting relaxation. As already held, it was not a case of granting general relaxation but relaxation was granted by the expert body of the Commission after due application of mind with signatures of the members of the Commission participating as apparent on record. The same view was reaffirmed in other two 1986 cases, referred above.

From the record and also from the petitioner''s learned counsel submission on the date of application for selection to the post of Principal in the College, Math, was not a subject taught in the post Graduate classes in the institution. It is also settled position that for appointment for the post of Principal in a Degree College, the candidate is required to be qualified for one of subject taught in the Post Graduate classes. Admittedly, Math, was not subject taught in the institution. The submission of the learned counsel for the petitioner that the application had bean made by the Committee of Management of the Institution for postponing the selection for the post of Principal on the ground that application for permission granting of recognition for teaching Math, in Post Graduate classes had already been submitted to the University and was pending. This fact has been denied by the respondent. Even for argument sake, it is assumed that such an application was moved by the Committee of Management that will not deter or make it obligatory for the commission to postpone the selection of a candidate for the post of Principal of a College only to accommodate the petitioner, who was perhaps favourite for the Committee of Management. The learned counsel for the respondent drew the attention to the decision of 1982 UPLBEC 577, Dr. P. S. Malik v. Chancellor, Meerut University, and also to a decision 1986 UPLBEC 657, Dr. Prabhat Kumar v. B.H.U., Varanasi, for the proposition that the petitioner has no locus standi under Article 226 to challenge the selection of respondent No 2 simply on the ground that the petitioner himself did not possess the requisite qualification for selection.

In view of the facts and circumstances, it is abundantly clear that on the date of the application, the petitioner was not qualified for being selected for the post of Principal of the College on the ground that he was not qualified in either of the subjects taught in the post Graduate classes of the institution. The submission of the petitioner about the illegal grant of relaxation of the essential qualification required in favour of the opposite party No. 2 by the Commission by general grant of relaxation is also misconceived for reasons and details, mentioned above. This court, while considering such matters as in the present, case, should be slow rather reluctant to interfere in the matters of selection by a body who are experts in subject of selection in Education Institutions for various posts. The Commission being experts and vested with the posts of selecting candidates has not been shown to have exercised their powers arbitrarily or with malice. There is no such allegation in the petition. This court has no option but to respect the opinion of the exparte body the selection committee constituted, according to law, who exercised their discretion legally and correctly.

In view of the observations made above, the writ petition No. 10926 of 1986 deserves to be dismissed without costs.

Writ Petition No. 7932 of 1989 filed by Dr. Harish Chand Verma preying for issuing a writ of certiorari quashing the advertisement No. 12 dated 15101988 issued by the Commission so far it relates to D,A.V. Post Graduate College, Azamgarh. The other relief is for a writ of mandamus commanding the respondentCommission not to hold interview for the post of Principal of D.A.V. Post Graduate College, Azamgarh. A contradictory T rayer for issuing a direction to the Commission for permitting the petitioner Dr. Banish Cband Verma to participate in the interview for the post of Principal if the court does not grant relief No. 1 and 2, mentioned above. Another prayer of the petitioner is not to declare the result of the interview. An interim order no doubt was granted on 1751989 by the Division Bench directing to the selection for the appointment of Principal may go on but no appointment in pursuance thereof should be made. Counter and rejoinder affidavits of Dy. Secretary of the Commission are also on record. The learned counsel for the petitioner failed to appear before the court and address. The of the writ petition shows that it was pleaded in the ground of the petition that D.A.V. Post Graduate College, Azamgarh is a minority run by Arya Samaj, which is a religious minority community entitled to protection under ''Article 30 of the Constitution, In the grounds, it is said that advertisement dated 15101988 is in violative of Section 24 of the Act No. 16 of 1980. The form of the petitioner was illegally rejected by the Commission without communicating him about the rejection of his firm. In the counter affidavit of Sri J. B. Singh Dy. Secretary of the Commission, it has been stated that under Section 226 an application form were received in response to the advertisement No. 12 dated 15101988. According to Sections 11 and 31 of the U. P. Higher Education Service Commission Act, 1980 the guidelines and regulations framed by the Commission, empower to screen out the candidates on the basis of their academic qualifications. The guidelines for different categories have been framed for screening on the basis of the qualification, teaching experience and administrative experience for the post of Principal of Post Graduate Degree College. According to the guidelines, for one post 7 or 8 candidates were called and for two posts, 1214 candidates have been called as the number of posts have been increased, the number of candidates have been called for interview decreased. The post of Principal of different candidates of the Post Graduate College like P.P.N. Post Graduate College has been framed on the basis of the educational attainment and guidelines.

The Commission examined and scrutinised the qualification of the petitioner who secured 50,6% in Intermediate, 41.1% in B.A. and 54,4% in M.A. He was, thus, found not to have consistently good academic record. As such, he was not called for interview. No other candidates who had equal marks with the petitioner was called for interview. The petitioner''s allegations in that respect was denied.

A perusal of the writ petition do not show that the institution D.A.V. Post Graduate College, Azamgarh was declared and determined as minority institution based on religion or cultural, as contemplated under Article 30 of the Constitution. There is no substantial material in the rejoinder affidavit of the petitioner, which may in any manner improve the petitioner''s case. After considering the facts and pleadings of the writ petition counter and rejoinder affidavits, the court is not satisfied that any case for interference under Article 226 of the Constitution is made out for granting any relief to the petitioner Dr. Harish Chand Verma.

Writ Petition No. 7932 of 1989 is dismissed. No order as to costs.

Writ Petition No. 24619 of 1992 filed by Sri Ram Deo Ojha praying for a writ of mandamus directing the respondents for making payment of salary as Principal since he was duly selected by the Commission, given appointment letter and took charge of the office but was not paid salary for the post ot Principal. Sri R.D. Ojha has narrated the entire facts about the advertisement and application submitted by the petitioner and Dr. H N. Singh for selection of post of Principal in Post Graduate Degree. It is not therefore, necessary to repeat the same facts again. Before the appointment letter could be issued to Sri H.N. Ojha by the Committee of Management of the Institution. Dr. H.N. Singh, respondent in this writ petition who was not selected by the commission filed the writ petition No. 18929 of 1986 and an interim order was passed by the Court on 7f1986 to the effect that "the petitioner shall continue to work as Principal of Udit Narain Post Graduate College, Padrauna till further order." Since there was a stay order, the Committee of Management did not issue any appointment letter to petitioner Sri R.D. Ojha, Dr. H. N. Singh, respondent was working as ad hoc Principal of the college namely Udit Narain Post Graduate College, Padrauna district Deoria, Before joining as ad hoc Principal of the said College, Dr. H.N. Singh was working as Lecturer in T. D. Post Graduate College, launpur. His lien on the post of Lecturer in f. D. Post Graduate College was likely to come an end, therefore, he jointed the T.D. Post Graduate College, Jaunpur again on 14111986 and worked there upto 30111988. It had been submitted that the right of Sri H. N. Singh on the post of ad hoc Principal at Udit Narain Post Graduate College, Padrauna ceased due to his joining at his original Post at T.D. Post Graduate College, Jaunpur. The Committee of Management of the Institution bad been favouring Dr. H, N. Singh and he was permitted to join again as ad hoc Principal of the college without any fresh appointment or approval by the competent authority. Dr. H.N. Singh wrote letter to the Accounts Officer of the D.LO.S. Jaunpur to pay salary for the post of Lecturer from 14 111988 to 30111988 and he was paid salary for the post of Lecturer by the D.I.O.S., Jaunpur.

Dr. R.D. Ojha submitted a representation to the Dy. Director of Education, Gorakhpur Region, Gorakhpur communicating him that the Committee of Management was not issuing the appointment letter to Sri R.D. Ojha which is violative of provision of Section 14 of U. P. Higher Education Service Act, i960 since Dr. H. N. Singh had joined his original post at Jaunpur, the continuance of adhoc employment at Deoria College came to an end. The Collector, Deoria, who is exofficio President of the Committee of Management of the Udit Narain Post Graduate College, Padrauna called for a meeting for reconstituting the Committee of Management of the college and election of the office bearers of the Committee of Management was held on 2431992. The newly constituted Committee of Management of Udit Narain Post Graduate College, Kunwar Ramanji Pratap Nandan Singh was elected as Secretary of the Management who took administrative control of the institution and its management from 2131992. The Committee of Management issued letter of appointment to the petitioner Sri R.D. Ojha dated 2831992 and petitioner Sri R. D. Ojha joined the post of Principal of the Padrauna College on 30th March, 1992. It is pleaded that since date of joining Sri R. D. Ojha is continuously working as Principal of the College without a single day break. The salary bill was sent for payment of salary to Sri R.D. Ojha by the Committee of Management. D.I.O.S. did not take any action for payment of salary to Sri Ojha. Representation was made to the Director of Higher Education concerned Anubbag on 1251992 by Sri R.D. Ojha. Representation reminders were sent, but no action was taken. Thus, writ petition has been filed by Sri R. D. Ojha claiming salary w.e.f. 3031992.

Counter affidavit has been filed by Dr. H.N. Singh. It was reiterated by him that writ petition No. 10929 of 1986 was filed by him in which the Division Bench was pleased to pass an interim order dated 761986 directing that the petitioner (Dr. H. N. Singh) shall continue to work as Principal in Udit Narain Post Graduate College, Padrauna till further orders. It has been said that the election of the office bearers of the Committee of Management of the College in which Kunwar. Ratanji Pratap Nandan Singh elected as Secretary /Manager of the Management has been challenged by Writ Petition No, 11693 of 1992 in which the operation of the order dated 2531992 passed by the D.I.O.S., Deoria attesting the signature of Ratanji Pratap Nandan Singh as Secretary/Manager of the Management shall remain stayed. It has been stressed in the counter affidavit that on the date i.e. 2831992 when the appointment letter was issued by the Manager Ratanji Pratap Nandan Singh, the High Court had already stayed the operation ot the order recognising and attesting the signature of the said manager. It s argued that there was no legal order in view of the stary order of the High Court appointment Sri R. D. Ojha as Principal of the Padrauna College nor he took charge of office as Principal. It has been argued and stated that the District Magistrate/Collector, Deoria was favouring Sri Ojha and harassing Dr. H.N. Singh. The S.D.M. Padrauna had also attempted to lock the office of the Principal and broke open the locks on almirah of the Principal''s office. It has been denied that Sri R.D. Ojha could be permitted to join as Principal of the College on the basis of the appointment letter given by the Manager, mentioned above, whose election itself was subjudice in the writ petition. Dr. H. N. Singh further stated that he was appointed as adhoc Principal in 1983 and his appointment on adhoc basis was approved by the Vice Chancellor, Gorakhpur University, Gorakhpur.

In this writ petition, an interim order was passed by the Single Judge on 1571992 to pay the salary to Sri R.D. Ojha or show cause by 781992,

An application by Kunwar Ratanji Pratap Nandan Singh for impleadment as a party has been submitted through Sri R. N. Singh, Advocate. No order allowing the application for impleadment has been passed nor Sri R.N. Singh addressed the court to press the application of impleadment of Kunwar Ratanji Pratap Nandan Singh.

After hearing the learned counsel for the petitioner Sri R. D. Ojha and Sri R. N. Singh for Dr. H. N. Singh, it is apparent and in view of the judgment given by this Court In W. P. No. 10929 of 1986 there was no justification for Dr. H. N. Singh, who was merely an ad hoc Principal functioning in Udit Narain Post Graduate College. He admittedly have been working as regular Lecturer in T. D. Post Graduate College, Jaunpur. He had joined Padrauna College after leave availed by him from T. D. Post Graduate College, Jaunpur. He had joined T. D. College, Jaunpur on 14111981 and continued to work upto 30111988, From the record, it is also apparent that he received the salary from the DIOS, Jaunpur for the period he had joined at T. D. Degree College, Jaunpur. The question that remains for consideration is whether Dr. H. N. Singh who left Udit Narain Post Graduate College, Padrauna for joining T. D. College Jaunpur could legally start functioning as ad hoc Principal without any fresh appointment letter from the Committee of Management and approval from the Education Department for such fresh ad hoc appointment on the post of Principal. These facts are not disputed. As such, it is evident that Dr. H. N. Singh was not legally competent to receive any salary for the post of officiating Principal after 30 111988 when he rejoined the institution without any legal and valid appointment letter.

It has not been controverted that after the appointment letter received by him from the Secretary/Manager of the Committee of Management namely Sri Kunwar Ratanj Pratap Nandan Singh, Sri R. D. Ojha joined the institution at Padrauna. The only argument and facts stated in the counter affidavit show that Sri R..D. Ojha was not eligible to be appointed as Principal of the College and the representation and attestation of the signature of Kunwar Ratanjit Pratap Nandan Singh as a Manager of the Committee of Management was stayed in writ petition filed by the High Court. It is further stated that Sri R. D. Ojha is not entitled to receive salary as Principal at Padrauna College.

In the counter affidavit Dr. H. N. Singh stated that after obtaining legal opinion from the Chief Standing Counsel of the High Court, Allahabad who advised the DIOS, Daoria and also to the Director of Education that Dr. H. N. Singh is entitled to continue as Principal of the College and get salary for the post held. The legal opinion sent by the Chief Standing Counsel, High Court Allahabad was not conclusive or binding. From the pleadings and materials on record, it is abundantly clear that Sri R. D. Ojha was given appointment letter by the Secretary/Manager of the Committee of Management and on the basis of it, he actually joined the Institution on 30. h March, 1992. In view of the findings and judgment in writ petition No. 10929 of 1986 above] the Selection of Sri R. D. Ojha for the post of Principal of Udit Narain Post Graduate College by the Commission is held to be, according to law and valid. The opposite party in this writ petition Dr. H. N. Singh and petitioner in other writ petitions since was not duly selected by the Commission for appointment as Principal, was not entitled to challenge the selection of Sri Ojha.

Sri Ashok Khare, representing , Sri Ojha, submitted that ex parte order dated 781986 passed in the writ petition filed by Dr. H. N. Singh stood vacated in law in view of the provisions of Article 226 (3) of the Constitution. The provision of the said Article is quoted as under ;

"226 (3) Where any party against whom an interim order whether by way of injunction or stay or in any other manner is made on, of in any proceeding relating to, a petition under clause I, without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order, and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open and if the application is not so disposed of, the interim order shall, on the expiry of that period or, as the case may be, the expiry of the said next day, stand vacated.

Sri Ashok Khare relied on a decision reported in 1994 (I) UPLBEC 63 Committee of Management of Sri Maheshwari Inter College v. State of U. P. This Court was pleased to hold relying on 1992 (V) Judgment Today (SC) 310 S. Ganpat Raj Surana v. State of T. N. and hold that "while construing the constitutional provisions contained in Article 226 (3) of the Constitution, the words used should have to be read in their ordinary and natural and grammatical meaning. The word "shall" as contained in the concluding portion of the aforesaid provision has to be construed as having been used in an imperative sense leaving no choice of action and the words "Stands vacated'''' indicate that the interim order shall cease .to be operative. Thus as submitted by Sri Ashok Khare that the interim order of the High Court dated 781986 ex parte was never confirmed and stood vacated in view of the constitutional provision of Article 226 (3). The learned counsel Sri Khare also cited AIR 1981 Raj 65 and AIR 1991 Cal 272. I do not consider it necessary to add the case laws on this aspect. This is abundantly clear that Dr. H. N. Singh was neither selected for appointment nor had any valid claim for the same as he was found not suitable for the post of Principal for the College at Padrauna.

In view of the discussions above, it is clear that Sri R. D. Ojha is entitled to receive salary from the data of his joining the institution w.e.f. 30th March, 1992.

This writ petition deserves to be allowed with costs.

Writ petition No. 33339 of 1992 has been filed by Dr. H. N. Singh praying for quashing the order dated 3181992 passed by the Director of Education, U. P. Annexure 12, and also for a direction and writ in the nature of mandamus restraining the respondent Sri R. D. Ojha in any manner whatsoever for functioning as principal of the Institution and receive salary, the Education Department by also restrained from making payment of salary to Sri R. D. Ojha, At the time of admission and argument, the Division Bench of this Court was pleased to pass the interim order "until further orders of this Court, the salary in dispute shall net be paid to the petitioner nor to respondent No. 5 (Dr. H, N. Singh)." The facts of the present claim of the petitioner Dr. H. N. Singh and the defence and case set up by Sri R. D. Ojha had already been narrated and detailed in the earlier paragraphs of this judgment which I do not consider to repeat. Sri R. N. Singh, learned counsel for the petitioner cited 1993 Vol. II UPLBEC 1412, (Prof. K. P. Rai v. V. C., Banaras Hindu University, Varanasi. In the said case, the question for consideration was appointment of Head of Department of Engineering, Institute of Agriculture Science of Banaras Hindu University. Banaras Hindu University Statute shows that appointment of Head of Department could be made only out of persons who belonged to the department. No other person from another department can be appointed unless provision of Statutes 25(3) and 115 of the Banaras Hindu University Statute were followed. The facts and the law involved in the said writ petition are wholly different and not applicable and the case is of no assistance for the present writ petition. Learned Counsel for the petitioner Dr. H. N. Singh cited 1983 UPLBEC 349, Committee of Management, Tilak Dhari Post Graduate College, Jaunpur v. Chancellor, Gorakhpur University, Gorakhpur. This authority is also of no assistance for the decision in the present writ petition.

For the discussion and facts and law, detailed in W. P. No. 24619 of 1992, there is no option but to hold that the writ petition of Dr. H.N. Singh No. 33339 of 1992 deserves to be dismissed It is not only for the facts and findings recorded in the earlier writ petition, it is also evident from the record that earlier writ petitions of petitioner Sri H. N. Singh in respect of the same controversy was already pending before this Court and prior to that, he had filed writ petition at Lucknow Bench also which also remain pending without disclosing the pendency of the earlier. This petition is dismissed as infructuous.

Writ petition Nos. 10929 of 1986, 33339 of 1992, 20248 of 1993 are dismissed with costs. Since petitioner Dr. H. N. Singh has been guilty of abusing process of court and filed writ petitions in succession with a view to obtain interim orders only, his writ petitions pending at Lucknow Bench and before this court, was not disclosed in the manner required and orders were obtained, after some such orders of the department which could have been ventilated and redressed by filing amendment application in writ petition No. 10929 of 1986. Instead of seeking such amendment for ventilating the grievance. Dr. H. N. Singh chose to file successively writ petitions which amounts to abuse of process of Court. The petitioner is, thus, liable to pay special cost payable to respondent Sri R. D. Ojha which I assess for all the writ petitions filed by Dr. H. N. Singh a total amount of Rs. 10.000 (Rs. Ten thousand), which he should pay within two months from the date of the order, failing which appropriate steps for recovery may be initiated.

Writ petition No. 7932 of 1989 is dismissed. No order as to costs.

Writ Petition No. 24619 of 1992 Ram Deo Ojha v. Director of Higher Education, U. P. Allahabad is allowed. The Director of Higher Education, U. P./D. I. O. S. is directed to make payment of salary to Sri R. D. Ojha with effect from the date of his joining i. e. 30th March, 1992 upto data and shall continue making payment of salary every month as it falls due. The total amount of salary due for the said period to Sri R. D. Ojha within two months from the date of filing of a certified copy of the order.

Writ Petition No. 6966 of 1995 is dismissed as infructuous. Parties to bear costs.

Petitions decided accordingly.