Rural And Urban Development And ... vs State Of U.P. & 2 Others
2015 Latest Caselaw 2516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Chief Justice's Court
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 47935 of 2015
 

 
Petitioner :- Rural And Urban Development And Research Association
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Alok Kumar Gupta,Arun Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Smt. Archana Singh,Suresh C.Dwivedi
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Yashwant Varma,J.

(Per Dr D Y Chandrachud, CJ)

By these proceedings which have been instituted in the form of a public interest litigation, a writ of quo warranto has been sought in regard to the appointment of the third respondent as Chairperson of the Uttar Pradesh Higher Education Services Commission1.

The third respondent was appointed in pursuance of a notification dated 15 July 2015. The petitioner seeks an appropriate direction or writ for setting aside the appointment of the third respondent on the ground that it was in violation of the provisions contained in Section 4(2)(b) of the Uttar Pradesh Higher Education Services Commission Act, 19802 (U.P. Act 16 of 1980).

Section 4 of the Act provides for the composition of the Commission. Sub-section (1) contemplates that the Commission shall consist of Chairperson and Members. Members of the Commission shall be not less than two and not more than six. The appointment of the Chairperson and Members is made by the State Government. Section 4 provides as follows:

"4. Composition of the Commission. - (1) The Commission shall consist of a Chairman and not less than two and not more than six 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."

The controversy in the present case turns upon Section 4(2)(b). Section 4(2)(b) requires that to be eligible for appointment as a Chairperson, a person must either be or must have been a member of the Indian Administrative Service. The second requirement is that the person must have held the post of a Secretary to the State Government or any other post under the State Government equivalent thereto.

The third respondent was promoted to the Indian Administrative Service on 28 November 2012 and for the purpose of seniority he was assigned the batch of 1999. By a notification dated 1 January 2015, he was promoted to the super time pay scale in pay band 4 of Rs.37400 - 67000 with the grade pay of Rs.10000/-. At the time when the notification was issued, the third respondent held the post of Collector and District Magistrate and was posted at Sitapur. The third respondent retired from service on 30 June 2015 as Collector. In anticipation of his retirement, a communication dated 12 June 2015 was issued by the Joint Secretary to the State Government in the Directorate of Pensions to facilitate the finalization of his pensionary benefits. The communication was addressed to the third respondent as 'IAS and Collector Sitapur'.

Basically, two grounds form the substratum of the challenge to the appointment of the third respondent and for the relief which has been sought. The first ground is that the State Government has not followed any procedure in regard to the appointment of the third respondent. The second ground is that the appointment of the third respondent is contrary to the statutory provisions contained in Section 4(2)(b). Both the State Government and the third respondent have filed their counter affidavits in response to the writ petition. In the counter affidavit which has been filed by the State, it has been submitted that in the Indian Administrative Service, promotions are not made to the post of Secretary. Promotions are made, it is urged, in the super time scale under the Indian Administrative Service (Pay) Rules, 1954, as amended. Hence, it has been submitted that the pay scale, privileges and allowances of super time pay scale officers continue to be the same as of the post on which they are posted and, as such, these posts are equivalent to the post of Secretary under the State Government. The third respondent in his counter affidavit has submitted that:

(i) A promotion is made in the Indian Administrative Services against a pay scale;

(ii) A super time pay scale officer who is eligible for being posted as a Secretary and has been posted somewhere else shall not be treated as inferior to an officer who is posted against the post of Secretary to the State Government;

(iii) The third respondent was working on the scale which is equivalent to the scale applicable to the post of Secretary;

(iv) The post of Secretary is a super time scale post and where a super time scale officer is posted in any other post in the State Government that would be equivalent to the post of a Secretary;

(v) A super time scale officer may be posted as a District Magistrate on account of the exigencies of service but this would not amount to an inferior posting and the post which is occupied "shall command upgradation on super time scale posts".

We will deal with both the aspects of the challenge.

The first aspect is founded on the submission that there is a total absence of procedure in the making of the appointment of the third respondent. While dealing with the first aspect, it would be important to note that the Commission has been constituted under state legislation. The background leading to the enactment of the law in 1980 was noticed in a judgment of a Division Bench of this Court in Gorakhpur University Affiliated College Teacher Association vs. State of U.P.3 while considering a challenge to the appointment of the Members of the Commission:

"The Act was enacted by the state legislature to establish a Service Commission for the selection of teachers for appointment to colleges affiliated to or recognized by a University. The Statement of Objects and Reasons accompanying the introduction of the Bill provides that the setting up of such a Commission for the selection of teachers to institutions of higher learning was under consideration of the State Government for sometime and recommendations in that direction were also made in the Vice-Chancellor's Conference in 1975. The University Grants Commission expressed the view that in the first instance the proposed Commission should be confined only to the selection of teachers in affiliated and associated colleges. Under the existing procedure, every college governed by the Uttar Pradesh State Universities Act, 1973 had its own Selection Committee with certain nominees of the Vice Chancellor. It was brought to the notice of the State Government that there were complaints of favouritism in the selection of candidates and that the process involved in the work of Selection Committees was expensive. It was in this background that the Act was enacted. The Act was intended to subdue an evil. The interpretation of the Act must be purposive: it must facilitate the attainment of the object of the law."

The expression 'College' is defined in Section 2 (c) to mean an affiliated or associated college to which the privilege of affiliation has been granted by a University governed by the Act of 1973, excluding a college established and administered by a minority under Article 30 (1) of the Constitution or a college exclusively maintained by the State Government or a college running a self-finance course. The Commission which is established under Section 3 is called the Uttar Pradesh Higher Education Services Commission. Sub-section (1) of Section 4 provides that the Commission shall consist of a Chairperson and not less than two and not more than six other members to be appointed by the State Government. Sub-section (2) provides for the qualifications for appointment as Chairperson. Sub-section (2-a) provides for the qualifications for appointment of a member of the Commission.

Section 11 provides for the powers and duties of the Commission which are in the following terms:

"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 recommendations to the management regarding the appointment of selected candidates;

(e) to obtain periodical returns or other information 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 allowances 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 conducive to the discharge of the above functions."

Section 12 provides that every appointment as a teacher of any college shall be made by the Management in accordance with the provisions of the Act. Any appointment made in contravention of this provision is void. The expression 'teacher' is not defined in the provisions of the Act. Hence, the definition contained in the Act of 1973 shall govern by virtue of the provisions of Section 2 (g). Under the Act of 1973, the expression 'teacher' is defined under Section 2 (19) to mean inter alia "a person employed in a University or in an institute or in a constituent or affiliated or associated college of a University for imparting instructions or guiding or conducting research in any subject or course and to include a Principal or Director. Under the provisions of sub-section (2) of Section 12, the Management is liable to intimate existing and likely vacancies to the Director who, in turn, is to notify them to the Commission under sub-section (3). Section 13 requires the Commission, upon a notification of vacancies, to hold a written examination and interview and to send to the Director a list recommending the names of candidates found suitable. Section 14 casts a duty on the Management to make the appointment within a period of one month from the date of receipt of the intimation.

These provisions in the enactment made by the state legislature emphasise the importance ascribed to the functions which are entrusted to the Commission to make appointments to posts of teachers in affiliated or associated Colleges.

While dealing with the vital role which is played by the Commission, this Court in its decision in Gorakhpur University (supra) observed as follows:

"The Commission, in the present case, has been set up with a statutory objective of ensuring transparency in the process of making appointments of teachers to constituent and affiliated colleges. No appointment of a teacher in any constituent or affiliated college can be made, save and except through the auspices of the Commission. The Commission has a vital role to play in ensuring that right persons are selected for appointment as teachers in colleges. These teachers ultimately will guide the destiny of a generation which has to receive education in diverse colleges across the State. If the persons, who have to make these appointments of teachers in constituent and affiliated colleges, are chosen through a process which is not transparent, objective and fair, the Commission cannot be expected to perform its function with objectivity and fairness. Such back door appointments of persons, who have access to the State Government; without a proper evaluation of credentials of competent persons drawn from diverse sources prescribed in Section 4 (2-a); in the absence of a transparent and objective procedure for notification of vacancies, short listing and consideration of prospective candidates results in a negation of the very object for which the Commission was set up."

In the present case, the counter affidavit which has been filed by the State Government is conspicuously silent in regard to the procedure which was followed while making the appointment of the third respondent. The averment in paragraph 12 of the writ petition that the State Government has not followed any procedure, has not met a specific traverse in paragraph 9 of the counter affidavit filed by the State except a general denial. Moreover, in his oral submissions, the Learned Chief Standing Counsel has not even submitted that a fair procedure was followed. However, it is not necessary to rest our decision only on this aspect of pleadings. When this Court delivered its previous decision on 7 September 2015, the State Government was specifically, by an interim order, called upon to disclose the procedure which is followed by the State Government for making appointments to the Commission. The counter affidavit filed before the Court by the Director of Higher Education in pursuance to the order of the Court stated that applications which are received by the State Government for appointment as Chairperson and as Members of the Commission are examined by the Higher Education Department "from the aspirants" in terms of the provisions of the Act. The applications together with bio-datas and administrative as well as academic achievements of the applicants are sent to the "higher competent level" for approval and after approval, orders for appointment of the Chairperson and/or Members are issued. Holding that such a process did not meet the requirement of Article 14 of the Constitution, the Division Bench held as follows:

"The basic infirmity in the modalities which have been adopted by the State is of not having followed any transparent or objective procedure in making appointments to the Commission. In Ram Tawakya Singh v. State of Bihar4, the Supreme Court, while considering the provisions of the Patna University Act, emphasised that Article 14 of the Constitution which mandates that every action of the State must be fair and transparent has to be read in the language of those provisions in which event, the Chancellor has to follow some mechanism whereby he can prepare a panel by considering persons of eminence in the field of education, integrity, high moral standard and character. In the present case, the State Government has not published or notified vacancies in the Commission. Nor has it notified at any stage that it was in the process of filling up vacancies in the office of members of the Commission. As a result, persons who are otherwise eligible and fulfil the requirements of eligibility under clauses (a) to (g), had no opportunity to be considered for appointment to the Commission. Secondly, the State Government did not prepare a panel of short listed candidates from which the ultimate selection could be made. Instead, what has been done, is that applications and bio-datas from aspirants which were received were scrutinized and after having them vetted in the Higher Education Department, were approved at the "highest competent level". The norms on the basis of which the applications were scrutinized have not been specified. There has been no competitive evaluation of the merits of various candidates. As they came and applied, so were they inducted as members. The modalities which the State has adopted are arbitrary and violative of Article 14 of the Constitution."

Sub-section (2) of Section 4 of the Act provides that a person to be qualified for appointment as a Chairperson can be drawn from one of the five sources reflected in clauses (a) to (e). Clause (a) refers to a person who is or has been a member of the Uttar Pradesh Higher Judicial Service having held the post of a District Judge or any other post equivalent thereto. Clause (b) covers a person who is or has been a member of the Indian Administrative Service and has held the post of a Secretary to the State Government or any other post under the State Government equivalent thereto. Clause (c) refers to a person who is or has been a Vice Chancellor of a University. Clause (d) refers to a person who is or has been a Professor in any University. Clause (e) deals with those cases where a person is, in the opinion of the State Government, an eminent person having made a valuable contribution in the field of education. In the present case, from the material which has been placed on the record, it is not in dispute that appointments both as Chairperson and as Members are made as and when an application is received. The State Government does not notify a vacancy in either office nor does it follow a transparent process of furnishing an intimation of the existence of a vacancy or of its intent to make an appointment. In such a situation, it is only a person who is aware of the date on which a person who has been appointed as Chairperson is to demit office or of the Chairperson having demitted office earlier, who would be in a position to apply for appointment as Chairperson. There is a total absence of a fair and objective procedure. The net result is the exclusion from consideration of a large pool of potentially qualified persons who would meet the statutory criteria of eligibility prescribed in clauses (a) to (e) of sub-section (2) of Section 4. Where the State makes appointment to a statutory commission like the Higher Education Services Commission which is vested with the performance of important public functions, the process of making appointment to the office of Chairperson and of Members cannot rest in the unguided exercise of discretion. The Commission has important statutory responsibilities since, as we have noticed, Section 12 mandates that every appointment as a teacher of any college can be made by a management only in accordance with the provisions of the Act and any appointment in contravention of the provisions is void. A detailed procedure has been laid down in Sections 12, 13 and 14 for making appointments of teachers. Persons who manage the Commission and discharge these statutory responsibilities must be selected after following a procedure which is objective and fair. Considering only an individual or individuals who have applied for the post for the purpose of appointment without following a fair process of selection and appointment or an objective evaluation of the credentials of diverse candidates would result in a situation where the office of the Chairperson and Members of the Commission would become an avenue for the conferment of largesse without regard to the need to appoint persons with a proven track record, credentials and integrity.

This aspect of institutional integrity has been held in a judgment of the Supreme Court in Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo5 to be of significance. While dealing with this aspect, the Supreme Court observed as follows:

"...When a writ of quo warranto is filed, it is the obligation of the relator to satisfy the Court that the office in question is a public office and is held by the usurper without the legal authority. It is the duty of the Court to see whether the appointment has been made contrary to the statutory rules. The issue of institutional integrity has also to be taken into consideration when a post is filled up and that is where the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable are required to be seen..." (emphasis supplied)

This Court emphasized this aspect of institutional integrity in its judgment in Gorakhpur University (supra) with the following observations:

"The second aspect of "institutional integrity" is of significant importance in contemporary times. Article 14 of the Constitution requires procedures under law to be fair, just and reasonable and procedures in regard to appointments to public offices cannot be an exception. Transparency in matters of public appointment and good governance are structural issues which are of the highest concern and, as the doctrine associated with Article 14 evolves, it has become necessary to emphasize that the power of making appointments to public offices has to be wielded and exercised in a manner consistent with public interest. The object is not only to ensure that persons with appropriate qualifications hold the post but also that the process itself engenders public faith and confidence. Equality in matters of appointment to public offices postulates that the process leading up to the appointment must be fair and reasonable. Persons who are eligible and qualified must have an equal opportunity to be considered for appointment. Otherwise, there is a real danger, as the present case itself demonstrates, of the process of filling up important posts in statutory Commissions, becoming an avenue for conferment of political largesse. Such a state of affairs cannot be allowed to pass in a society which is founded on the rule of law."

The procedure adopted in making an appointment to a post such as that of the Chairman of the Higher Education Service Commission assumes as much importance as the eligibility of the person ultimately selected. The adoption of a fair and transparent process of selection is an inherent and inbuilt requirement and must be read into the selection process in order for it to comply with the mandate of Article 14 of the Constitution. It would be necessary to refer to the principles laid down by the Supreme Court in Center for PIL vs. Union of India6:

"43. Appointment to the post of the Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation. The decision to recommend has got to be an informed decision....

64. Even in R.K Jain case, this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable. We reiterate that the Government is not accountable to the courts for the choice made but the Government is accountable to the courts in respect of the lawfullness/legality of its decisions when impugned under the judicial review jurisdiction."

(emphasis supplied)

On behalf of the third respondent, it has been urged by learned Senior Counsel that the Uttar Pradesh Higher Education Services Commissions Rules, 1981 provide for disqualification in Rule 4 and for investigation of misconduct in Rule 5. It has been submitted that (i) Rule 4 provides for a minimum restriction which prohibits the making of certain appointments; and (ii) a power is conferred to terminate an appointment for misconduct under Rule 5. Hence, it was urged that there was no blanket power to make an appointment. It was submitted that in the absence of due procedure, the Court can direct that a proper procedure should be followed but this would not invalidate the appointment already made. A similar line of argument was also urged by the learned Chief Standing Counsel who submitted that any direction in regard to the observance of procedure by this Court may operate prospectively and may not invalidate the appointment of the third respondent.

We are unable to accede to the submission. Rules 4 and 5 which provide for disqualifications and an investigation into an act of misconduct implement respectively the provisions of Section 5 and Section 6. Rule 4 provides for disqualifications in situations such as the conviction of a person for an offence involving moral turpitude, engaging in any business or practising a profession, becoming a member of the legislature and prohibits a person who is not a citizen from becoming a member. These are disqualifications which are attracted at the threshhold from being a member or from continuing to be a member. The requirement of following an objective and fair procedure is distinct from the disqualifications which are contemplated in Rule 4. The requirement of following a procedure which is fair and reasonable ensures that a selection is made in accordance with norms of objectivity and fairness and in a manner consistent with Article 14. The mere fact that a candidate has not attracted a disqualification under Rule 4 cannot give rise to the inference that the process for selection meets the requirements of Article 17. In order to be appointed among a field of candidates, the State Government must and is duty bound to follow a procedure which is fair, objective and reasonable. Similarly, the provisions of Rule 5 which deal with an investigation into an act of misconduct by a member of the Commission operate after a person has been appointed under Section 4. This would have no bearing on the issue of the procedure required to be followed in a manner consistent with Article 14 of the Constitution before any appointment is made.

For these reasons, we are of the view that on the first aspect of the submission, there is merit in the contention which has been urged on behalf of the petitioner. We have already dwelt on this aspect in the previous judgment of this Court dated 7 September 2015 in the Gorakhpur Affiliated (supra) case. The same line of reasoning must vitiate the appointment which has been made of the third respondent.

We now move to the second aspect of the case as to whether the third respondent was eligible and whether he fulfilled the requirement prescribed in Section 4(2)(b) of the Act. On this aspect of the matter, the submission which has been urged on behalf of the petitioner by the learned Senior Counsel is that under clause (b) of sub-section (2) of Section 4, a person must either be or must have been a member of the IAS and, in addition, must have "held the post of a Secretary" to the State Government or any other post under the State Government equivalent thereto. The expression "held the post", it is urged, indicates that a person must be appointed as Secretary to the State Government. In order to be a post equivalent to that of Secretary what is material would be the duties and responsibilities of the post, qualifications for recruitment and the salary prescribed. The mere grant of super time pay scale to a member of the IAS does not render the post which he is occupying a post equivalent to that of Secretary. The post of Collector and District Magistrate is not equivalent to that of Secretary and merely because the holder of the post for the time being may be in the super time scale would not result in that post being equivalent to that of Secretary.

On the other hand, it has been urged on behalf of the State and the third respondent that in the case of the Indian Administrative Service, the promotion is not to a post but on a grade. Hence, it was urged that it is upto the State Government to determine where a person who is promoted on a super time pay scale should be posted. The third respondent was already holding of the post of District Magistrate and continued on the post after his promotion to the super time scale. Hence, it was urged that the post which he had occupied must be regarded for all purposes as being equivalent to the post of Secretary to the State Government.

These submissions would fall for consideration.

On 28 March 2000, the Union Government in the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel, Government of India issued instructions to be followed while granting promotions to different grades in the Indian Administrative Service and for the composition of Departmental Promotion Committees. Annexure 1 to the communication lays down the principles which govern the grant of promotion to members of the service and in regard to the composition of Departmental Promotion Committees. Promotion in the super time scale is dealt with in the following terms:

"IV PROMOTION IN THE SUPERTIME SCALE

The members of the Service who are working in the Selection Grade and have completed 16 years of service shall be eligible for appointment in the Supertime Scale at any time during the year of their eligibility, subject to availability of vacancies in this grade. The Screening Committee to consider officers for promotion in this scale would consist of the Chief Secretary as Chairman and 2 officers working in the grade of Principal Secretary within the State Government concerned, as members.

If, however, there is only one officer working in the grade of Principal Secretary to the Government available in the cadre, the senior-most Supertime Scale officer available in the cadre may be included in the Committee."

The instructions, inter alia, provide for appointment to a senior time scale, junior administrative grade and to the selection grade. An officer is eligible to be appointed in the senior time scale on the completion of four years' service, subject to the provisions of Rule 6A of the IAS (Recruitment) Rules, 1954. A Committee has to evaluate the performance of eligible officers for deciding their suitabilities for promotion to a post in the senior time scale. An officer is eligible for appointment to the junior administrative grade on completing nine years of service. This grade is regarded as a non functional grade and is admissible without any screening and as a matter of course, to all officers of the senior time scale except where disciplinary or criminal proceedings are pending. An officer in the junior administrative grade is eligible for appointment to the selection grade on the completion of thirteen years of service under the proviso to Rule 3(2A) of the IAS (Pay) Rules, 1954 and a Committee is to screen eligible members of the service for promotion to this grade. Promotion in the super time scale is of those officers in the selection grade who have completed sixteen years of service subject to the availability of vacancies in that grade, at any time during the year of eligibility. A Screening Committee is contemplated for evaluating cases for promotion to the super time scale.

Section 4(2)(b) of the Act contemplates that a person must be or should have been a member of the Indian Administrative Service who has held the post of a Secretary to the State Government. A person can be regarded as having held the post of Secretary to the State Government when he is appointed in a substantive capacity to the post. Alternately, such a person would be eligible for being considered for appointment as Chairperson on having held any other post in the State Government equivalent to the post of Secretary. It is not the case of the State Government that the post of Collector and District Magistrate has been declared as or that it is equivalent to the post of Secretary to the State Government. Neither is there any material to establish such a case nor is there any plea of equivalence, founded on a valid provision of law. Insofar as the State is concerned, the ground which is pleaded in the counter, is that the third respondent held a post in the super time scale in the cadre of the Indian Administrative Service which is claimed to be equivalent to the post of Secretary in the Central Secretariat. The only basis for the claim is that the salary to which the third respondent was eligible was the salary of the post of a Secretary to the State Government. This, in our view, will not make the post of Collector and District Magistrate which he was occupying a post equivalent to that of a Secretary in the State Government. Whether a post in the service is equivalent to another is determined on the basis of well settled principles which have held the field. In State of U.P. vs. J.P. Chaurasia7, the Supreme Court held that such an issue primarily requires, among other things, an evaluation of the duties and responsibilities of the respective posts. An elaborate statement of the law is contained in a judgment of three learned Judges of the Supreme Court in Sub Inspector Roop Lal vs. Lt. Governor Through Chief Secretary, Delhi8, where it was held as follows:

"...Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than "Pay" will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India vs. P.K. Roy9. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganization Act, 1956. These four factors are : (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post "not equivalent"."

The Supreme Court followed this decision in L.N. Mithila University vs. Dayanand Jha10, where it was held that the real criterion to adopt in determining a matter of equivalence is whether the status, nature of responsibilities or duties attached to the two posts are equal. These principles were reiterated in a judgment of the two learned Judges in T. Venkateswarulu vs. Executive Officer, Tirumala Tirupathi Devasthanams11, where it was held as follows:

"...the crucial factor to be established is not only the functional parity of the two cadres, but also the mode of recruitment, qualification and the responsibilities attached to the two offices..."

This statement of the law would clearly indicate that in determining issues of equivalence, the crucial test is the nature and duties of a post, the responsibilities and powers exercised by the officer, the extent of territorial or other charge held, the minimum qualifications, if any, prescribed for recruitment and the salary. The salary of a post for the purpose of finding out equivalence is regarded as the last of the criteria. The third respondent may have been granted the super time pay scale, as indeed he was, by a notification dated 1 January 2015. Equally undisputed is the position that prior to the grant of the super time scale he held the post of Collector and District Magistrate, in which capacity he was posted at Sitapur. Upon the grant of the super time scale he continued in that same post. The issue is whether the post of Collector and District Magistrate which he occupied can be regarded as being equivalent to that of Secretary. Plainly, the answer to that is in the negative. The nature and duties of the post of a Collector and District Magistrate can, by no stretch of logic or imagination, be regarded as being the same as those of a Secretary to the State Government. The Collector and District Magistrate holds responsibilities with regard to the territorial area of the district of which he is a Collector. The mere grant of a super time pay scale to a particular individual does not render the post of Collector and District Magistrate equivalent to that of a Secretary. The test under Section 4(2)(b) of the Act is whether the post which was occupied by him was equivalent to that of Secretary to the State Government. The answer to that, for the reasons which we have indicated, would be in the negative.

For these reasons, we are of the view that the writ petition has to succeed on both counts namely (i) the appointment of the third respondent was without following any norm or procedure consistent with Article 14 of the Constitution; and (ii) the third respondent did not fulfil the statutory requirements of eligibility to hold the post of a Chairperson of the U.P. Higher Education Services Commission. The petition is, accordingly, allowed by the issuance of a writ of quo warranto, as prayed, and by setting aside the appointment of the third respondent.

We clarify that this judgment will not, by itself, invalidate the recommendations made by the Commission prior to this judgment. The legality of the recommendations and the appointments made in the meantime on any independent ground will be adjudicated upon in the event of a substantive challenge made in appropriate proceedings. In consequence, we direct the State Government to complete the process of reconstituting the Commission after laying down appropriate norms consistent with the statutory provisions and by following a process which is objective, fair and reasonable in accordance with the mandate of Article 14 of the Constitution.

The writ petition shall stands disposed of in the aforesaid terms. There shall be no order as to costs.

Order Date :- 22.9.2015

VMA

(Dr. D.Y. Chandrachud, C.J.)

(Yashwant Varma, J.)