JUDGMENT

S.H.A. Raza, J.

1. Present writ petition has been filed by the persons, who were selected by the U. P. Higher Education Services Commission, (hereinafter referred to as the Commission), assailing the Government Order dated 1.4.1997, by means of which the selection process, on receipt of certain complaints were suspended on 11.4.1997. Similar orders passed by the State Government were also challenged by the petitioners, wherein it was stated that the State Government, on receipt of certain complaints regarding irregularities committed by Commission in the selection on the post of Principal, directed that the selection be not made without previous approval of the State Government. It was further directed that the Commission shall, without previous approval of the State Government in writing, take no steps to make the selection of the candidates by direct recruitment for appointment in substantive vacancies of the Principal between April 2 to 5, 1997 and shall not prepare any panel of the candidates. But, it was provided that the notification shall not apply in respect of selection to the post of Principal of D. V. Post Graduate College at Oral.

2. Before dealing with the questions involved in the writ petition, it is relevant to state the background, in which the impugned orders were passed ; that on 5.12.1996, the Director of U. P. Higher Education intimated to the Commission for the post of Principal in graduate and Post-graduate College. In pursuance of the said intimation, the Commission on 13.12.96 issued advertisement Nos. 22 and 23 of 1996 for making selection on various posts of Principal. The requisition was also sent to the Commission for making selection on the post of lecturers and the Commission issued advertisement for the same on 13.12.1996.

3. The process of selection was expedited by the Commission for the reason that in writ petition bearing No. 19557 of 1997, which was decided on 20.9.96 and the High Court issued directions to complete the process of regular selection within four months from the date of receipt of certified copy of the order and the management was to send requisition within a week from the date of the certified copy of the order.

4. After issuing the advertisement the process of selection was set into motion, large number of applications were received and after (c) short-listing of the candidates who did not come within the field of eligibility, the candidates were invited for interview. The first phase of selection on the post of Principal commenced from April 2, 1997 and culminated on 5.4.97. At the time of interview, besides the member of the Commission, expert were also present.

5. As soon as the Commission commenced interview on April 2, 1997, the Commission received a latter from the State Government dated 1.4.1997 to stay the process of selection. In view of the fact that the State Government received complaints on 2.4.1997, the Commission sent reply to the State Government that the selection process had commenced and it was not possible for the Commission to stop the same in public interest. The Commission also intimated to the State Government that the selection was being carried out in pursuance of the directions of Allahabad High Court in writ petition bearing No. 19557 of 1996, whereby the Court had directed that the selection in respect of vacancies existing in several institutions, would be made and the State Government would make endeavour to cooperate with the Commission so that the selection be completed. Letter also indicated that the selection process was started in pursuance of the order of the High Court and if that would not be completed within the specified period, that would amount to contempt of court. Thereafter, on 11.4.1997 the notification, as stated hereinbefore was issued by the State Government. In the said notification post of Principal of D. V. Post Graduate College, Jalaun at Orai, was exempted because the direction of the High Court was made in writ petition, which was filed by one Govind Ji, pertaining to the appointment in D. V. Post-graduate College at Orai. Probably the State Government was of the view that the judgment passed in Writ Petition No. 20651 was a judgment in 'persona' and not a judgment in 'rem'. The selection process was completed by the Commission and the result was declared on 9.4.1997, which was communicated to the candidates on 11.4.1997. On 11.4.1997 the State Government issued another notification directing the Commission not to take steps to make the selection without approval of the Government. The Commission reported to the Government that as far as the process of selection on the post of Principal is concerned, which was started from the date of issuance of the advertisement, had already culminated and nothing remains to be done any further.

6. On 5.6.1997, the State Government taking a cue from Section 2 of the Corporation Act, 1975, instituted enquiry and appointed Commissioner, Allahabad Division, Allahabad, as the Enquiry Officer in respect of the complaints of irregularities alleged to have been committed by the Commission in the selection. On 11.6.1997 the Commission protested against the alleged unwarranted action of the State Government as there existed no provision in U. P. Higher Education Service Commission Act for holding enquiry by the State Government in the matters of selection by the Commission as it was creation of the Statute and it had performed its statutory and legislative duties and obligations, which cannot be subjected to enquiry. Commission alleged that the aforesaid enquiry was instituted with mala fide intention etc. The Commission also urged that the State Government had no authority to pass the order strolling into the legislative functions, on the basis of frivolous complaints, which have never been substantiated. It was stressed that the action was mala fide on the part of the State Government and the Government wanted to perpetuate ad hoc appointment in the institution solely with the view to appease management of the institution and to their favourite candidates.

7. On 26.6.1997 the State Government again passed an order by issuing notification directing the Commission not to hold any further selection. On the next date, the Commission intimated its inability to comply with the direction for the reason that said notification was issued at belated stage and it was not in public interest to stop the process of selection. The Commission also challenged the authority of the State Government to issue such order/notification, which amounted interference into the autonomy of the Commission to hold the examination for selection. On 23.6.1997 when the process for selection for the post of lecturers had commenced, members of the Commission including its Chairman were required to show-cause within twenty four hours as to why the action under Section 6 of the Act be not taken for breach of the order dated 20.6.1997. On 24.6.1997 the Commission requested the State Government for a period of ten days to enable it to submit detailed report against the said notice, as according to the Commission, it was impossible for the Commission to reply to the State Government within less than twenty four hours because notice dated 23.6.1997 was received by the Chairman and the members of the Commission on 24.6.97. On 27.6.1997 the State Government passed the order removing the Chairman and few members of the Commission.

8. Being aggrieved against the said orders, Sri Ram Gopal Chairman, U. P. Higher Education Services Commission, Allahabad and other members of the Commission filed writ petition bearing No. 20726 of 1997, which was heard and decided by a Division Bench of this Court on September 3, 1998, in which one amongst us (Hon. S.H.A. Raza. J.) was a member. (1999) 2 UPLBEC 825. The operative portion of which is as follows :

"We are of the view that the right of the petitioners to continue as the Chairman and Members of the Commission respectively has been adversely affected by passing the order of removal, which is non est hence the petitioners deserve to be reinstated in the office which they hold prior to passing of such an order, which is void in law. Hence, the contention of the learned Additional Advocate General that the petitioners are not entitled to be reinstated is totally misconceived as we have already observed that the order is non est".

"When the writ petition was initially filed, interim order was limited only to the extent of restraining the State Government not to make appointments in place of the petitioners. There* after, a modification application was preferred by the State Government stating inter alia that Mr. Daya Ram took over the charge as Member of Higher Education Service Commission on September 23, 1994 for a term of three years or till he attains the age of 62 years. His term came to an end on 22.9.1997, hence the State Government will be permitted to appoint another member. The interim order was modified by this Court and the State Government was permitted to appoint a new member in place of Mr. Daya Ram Singh, the petitioner No. 2. Petitioner No. 1 took over the charge of the office of the Chairman on 15.9.1995. Petitioner No. 3 took over the charge as member of the Commission on 23.1.1995. Their terms have not yet expired. Hence they are liable to be reinstated."

"In view of what has been stated hereinabove the writ petition is allowed. A writ in the nature of certiorari quashing the impugned order dated 27.6.1997 is issued. A writ in the nature of mandamus commanding respondent No. 1 to reinstate the petitioner Nos. 1 and 3 is issued, provided they have not been retired, with all consequential benefits. As far as Sri Daya Ram Singh, petitioner No. 2, is concerned, whose term has expired, shall be entitled for emoluments, allowances and benefits only thereto till the date on which his term came to an end. A writ in the nature of certforari quashing the order dated 1.4.1997, notification dated 11.4.1997, the impugned orders dated 2.6.1997 and the notification dated 20.6.1997 contained in Annexures-10, 12, 14 and 1 is issued."

"However, considering the fact that the petitioners have suffered humiliation, insult and loss of reputation and have unnecessarily been dragged into litigation due to whimsical stand and action of the State Government, violating all rules and norms, which the State was to allow, we direct the State Government to pay Rs. 20,000 (twenty thousand) as special costs to each of the petitioners."

9. In the aforesaid writ petition bearing No. 20726 of 1997, the Division Bench of this Court had made following observations :

"The Commission is an independent and autonomous Statutory body, which has been created under Section 3 of the Commission Act, 1980. It is like the Public Service Commission. It is not subservient or subordinate to the directions of the State Government. It plays an important role in the selection and appointment or teachers. The Commission has to perform functions and duties in an independent and objective manner uninfluenced by the dictates of any other authority, including the State. The State Government cannot issue any direction to the Commission to stop the process of selection."

"Undoubtedly, Section 6 (3) of the Commission Act. 1980, vests powers with the State Government to suspend from office any member of the Commission in respect of whom any action is contemplated under this Section, but this section does not vest any power with the State Government to restrain the functioning of the Commission, which has been vested to it by an enactment. The suspension of a member of the Commission on the charge of misconduct has nothing to do with the suspension or immobilisation of the Constitution."

"Thus, the contention that the power to suspend a member of the Commission includes the power to suspend the functioning of the Commission is, totally misconceived." "Section 11 of the Commission Act, 1980, emT powers the Commission to select the most suitable candidate for appointment on the intimation of vacancies to it under Section 12 of that Act and send to the Director a list containing the names of selected candidates, arranged in order of merit. After the Commission sent the list containing the names of selected candidates, its function is over. The powers and duties of the Commission as con- tained in Sections 11, 12 and 13 of the Commissions Act, 1980, are statutory and while making the selection, the Commission performs the legislative functions assigned to it."

"When any statute delegates to a particular authority or certain statutory powers, such a power assumes a legislative or delegated legislative functions, which are quasi-legislative in nature, which such an authority is entitled to perform such powers in accordance with the legislative policy contained in such a statute, and it cannot be compelled to desist from performing such a legislative policy."

"The Commission was justified in refusing to abide by that direction as that direction was not within the four corners and legal permissible limit of Sections 11 to 14 of the Commission Act and on the touchstone of Article 14 of the Constitution was not found reasonable."

"Another direction contained in notification of the State Government dated 11.4.1997 issued under Section 2 of the Corporation Act, 1975, not to take any step for the selection of the principals without prior approval of the State Government in respect of the selection schedule to be held between 2nd to 5th April, 1997 with a direction not to prepare any panel for candidates leaving aside Principal of D. V. Post Graduate College Jalaun at Oral, which was a legislative or delegated legislative function of the Commission, was also not honoured by the Commission."

"Similarly, the direction contained in the notification dated 20.6.1997 issued by the State Government exercising its powers under Section 2 of the Corporation Act. 1975, directing the Commission not to hold selection to the post of teachers till 15.7.1997 was not complied with."

Undoubtedly, the State Government is vested with certain powers to issue directions under Section 9 (2) of the Commission Act, 1980, regarding appointment of its employees. Besides the State Government has been vested with certain financial powers as contained in Chapter IV of the Act. Under Section 2 of the Corporation Act, 1975, the State Government is vested with the powers to issue direction in discharge of the functions of the Commission and the Commission being a statutory body shall be guided by such direction on the question of policies, as may be given to it by the State Government, but in matters pertaining to legislative or delegated legislative field the State Government cannot issue such directions, because such a direction will not be within the four comers of the legislative policy contained in Sections 11 to 14 of the Commission Act, 1980 and on the touchstone of Article 14 of the Constitution of India, such a direction would be unreasonable, irrational and arbitrary.

10. The Division Bench was of the opinion that the directions issued by the State Government to the Commission to stop or not to stop the selection, was against the legislative policy under Sections 11 to 14 of the Commission Act. The Division Bench after considering the provisions of Section 6 (2) of the Commission Act, 1980, read with Rule 5 of the Commission Rules, 1981, was of the view that it cannot be said the Chairman and members of the Commission, have committed any act of misconduct in making the said selection unless and until the Chairman and members of the Commission would have been proceeded with. The Division Bench also expressed the view that the Chairman and the members of the Commission were not removed in accordance with the procedure established by law as provided under the Act and the Rules, they were not given any opportunity to show cause against the order or removal and the order of removal was passed in violation of principles of audi alteram partem, which is embedded in Article 14 of the Constitution of India, itself.

11. It appears that more or less the same controversy, which was subject-matter of Writ Petition bearing Wo. 20726 of 1997. Ram Gopal and others v. State of U. P. and others, has been raked up by the State Government. Director of Higher Education as well as the Commission, in their counter-affidavits.

12. Present writ petition was filed in the month of July, 1997 before the pronouncement of the judgment in Civil Misc. Writ Petition No. 20726 of 1997 filed by Ram Gopal and others. In the counter-affidavit, certain irregularities in the matter of selection alleged to have been committed by the Commission, have been pointed out. Neither the State Government, nor the Director, Higher Education have filed any writ petition assailing the selection made by the Commission. The Commission is independent autonomous statutory body, which has been created under an Act and it is its duty to perform functions and duties in independent objective manners, which are reflected in the following provisions :

11. Power and duties.--The Commission shall have the following powers and duties namely :

(a) to prepare guidelines on matter 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 ;

(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 of the Commission Act, 1980, deals with the procedure of the appointment of teachers, which is reproduced below :

12. Procedure for appointment to 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.

(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 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 subsection (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 deals with the recommendation of the Commission, which is reproduced below ;

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 sent to the Director a list recommending, such number of names of candidates found most suitable in each subject as may be, so far practicable, twenty five per cent more than the number of vacancies in that subject. Such names shall be arranged in order of merit shows 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.

(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 name of a candidate from the list referred to in subsection (1) for being appointed in the vacancy intimated under subsection (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, service 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 subsection (4) or sub-section (5) to the candidate concerned."

13. Hon'ble Supreme Court in Om Prakash Rana v. Swamp Singh Tomar, (1986) 3 SCC 18, while considering the various provisions of U. P. Secondary Education Services Commission Act, observed that a survey of the provisions of the Services Commission Act makes it abundantly clear that the entire matter of selecting teachers for recognised institution is intended to be governed by the Services Commission Act. The control over all appointments is exercised by single source of power, namely the Commission under the Service Commission Act. The scheme set forth in the Services Commission Act enacts a complete code in the matter of selection of teachers and resort is no longer permissible to the provisions of the Education Act and its Regulations for the purpose. Hon'ble Supreme Court observed that in the selection of teachers, the Commission has been charged with the responsibility of inviting talented persons and selecting the best amongst them. The selection has to be made in the context of the particular need and requirement of the college. It is a responsibility of grave magnitude, the appointment of the head of institution and therefore, most appropriately entrusted to the vision, wisdom and experience of a high powered body, the Commission.

14. In Gaya Ram Pandey v. U. P. Higher Education Services Commission, (1986) 2 UPLBEC 1523, a Division Bench of this Court observed that the Commission consisted of high academicians. The Court must have regard to their status, experience and method of assessing the merit of the candidate. The Commission had the benefit of experience and assistance of experts too. The decision of such a Commission should not be ordinarily interfered with by the Court in exercise of writ jurisdiction.

15. Merely because the Commission has called more candidates for interview, does not vitiate the process of selection, particularly when it consisted of persons of high calibre and experts. Whatsoever, all the Government Orders/notifications issued by the State Government to stop the process of selection were quashed by the Division Bench of this Court in Ram Gopal and others v. State of U. P. and another (supra).

16. It was asserted by learned standing counsel appearing on behalf of the respondents that the Commission advertised only fourteen vacancies but selected twenty candidates. The Commission also informed that due to the interim order passed by the High Court, the result of two posts have not been declared. It was submitted that the selection cannot be made with respect to unadvertised vacancies.

17. The Director of Higher Education by means of his letter dated 5.12.1996 and 26.2.1997 notified twenty vacancies for the post of Principal. Those posts were advertised by advertisement Nos. 22 and 23, out of those, twenty posts, 9 posts were from general category. 5 from OBC, 6 from Schedule Caste, but the result of two posts from general category was not declared in view of the interim order passed in the Writ Petition No. 301 of 1997 and 309 of 1997 (SB), the result of which shall be announced after the decision of the High Court in the aforesaid writ petitions. The advertisement, itself, indicated that on notification of the vacancies, the selection may be made for more posts. However, we found that the Commission has only selected fifteen candidates ; seven from general, five of OBC and three Schedule Caste, hence it cannot be said that the selection made by U. P. Higher Education Services Commission was vitiated. If ft is assumed that the selection suffered from any infirmity, same could have been assailed in proper court of law, but under the provisions contained in Section 2 of the Corporation Act, neither the process of selection could be stopped by the State Government, nor any enquiry in the matter of selection could be initiated by the State Government, because no such power has been vested to the State Government.

18. Although the State Government has appointed Divisional Commissioner to hold the enquiry into the matter, but learned standing counsel failed to produce the report of the enquiry. We are of the view that neither the State Government was vested with the power to stop the statutory function of the Commission, nor can interfere into the manner in which the selection was made by the Commission and it has unnecessarily dragged on the appointment of the petitioners without any justifiable reasons.

19. In view of what has been indicated hereinabove, writ petition succeeds and is allowed. A writ in the nature of certiorari quashing the Government Order dated 1.4.1997 contained in Annexure-3 to the writ petition as well as notification dated 11.4.1997 contained in Annexure-8 to the writ petition, is issued. Respondents are directed to implement and give effect to the selection of the petitioners as notified by the Commission on 9.4.1997 contained in Annexures-4, 5, 6 and 7 to the writ petition, and issue letters of appointment to the petitioners for the posts for which they have been selected, forthwith.