The Allahabad High Court has directed the State Government to file an affidavit explanation as to why the Higher Education Service Selection Commission, Prayagraj should not be directed to conduct the selection and interview despite the non-fulfillment of the quorum under the doctrine of necessity.
A Single Bench of Justice Ajit Kumar passed this order while hearing a petition filed by Mahendra Singh and 3 Others.
The petitioners are seeking direction to expedite the selection process pursuant to advertisement for the post of Assistant Professors that were more than 900 in numbers.
On the last occasion, it was argued that even two members can constitute a valid commission as per Regulation 3 to proceed with the selection process and thus can hold selection and interview.
M.K Singh, Advocate appearing for the Board apprised the Court that as per the amended regulations notified in the year 2014, the quorum for the commission to function is that members should at-least there be in the commission to form a requisite quorum.
Counsel for the petitioner does not dispute the same, however, he submits that applying Doctrine of Necessity as has been discussed and deliberated in the judgment of Lalit Kumar Modi v Board of Control for Cricket in India and Others, 2011 (10) SCC 106, wherein the Court had held that the doctrine of necessity was a common law doctrine, and so be applied to tide over the situations where there were difficulties. The Court held that law did not contemplate a vacuum, and a solution was to be found out rather than allowing the problem to boil over .
The Supreme Court agreed with an argument advanced by Jethmalani in that case that if the situation was not arrested at the earliest, one would have to wait more than a year for the President to be elected.
The petitioner has also relied upon in an earlier case of Election Commission of India and Others v Dr Subramanian Swamy and Others, 1996 (4) SCC 104, wherein the Court held that there may be certain things required to be done as a matter of necessity which may otherwise not countenance on the touchstone of judicial propriety. The Court was of the view that the doctrine of necessity made it imperative for the authority to decide and considerations of judicial propriety must yield. The Court expressed the view that if the situation was going out of bound for certain difficulties arising in performance of statutory function , the doctrine of necessity should intervene and any restriction to avoid its full play in the matter, would rather impede the course of justice than advancing the cause.
In the case as Standing Counsel argued, the State Government does not intend to continue with the presently existing Commission of U.P Higher Education Service Selection Commission and U.P Secondary Service Selection Board constituted under two separate Acts passed by the State legislature and, therefore, intends to bring a comprehensive Body like commission to deal with all kinds of employments in recognized and aided institutions, be it Higher Education, Secondary Education or Primary Education but till date no such Act has seen the light of the day.
Majority of members whether of the U.P Secondary Education Services Selection Board or the U.P Higher Education Service Commission have completed their terms in office and so a situation has arisen where for want of requisite quorum the process of selection and recommendation pursuant to advertisement issued by the respective statutory bodies is not being undertaken.
The Standing Counsel submitted that the cabinet has already approved a draft bill for the said purpose and soon the Government will ensure enactment of such an Act.
The Court is of the view, a mere decision of the cabinet would not override an existing act and will not render statutorily constituted bodies defunct. The decision not to make appointments of members to the Commission and the Board may appear to be appropriate to the executive but for the Court of law that has to examine the powers given to the respective bodies under statutory provisions, a mere decision of the cabinet would have hardly any bearing. Cabinet decisions of the State Government fall in the category of policy decisions which are not enforceable in law until they result in an enactment by a competent legislature.
The Court observed that,
Counsel for the petitioner appearing in the connected matter Satyendra Tripathi has placed before the Court notification issued by the State Government on 22nd November, 2021 for making appointment to vacant post in the U.P Higher Education Service Commission, however, despite advertisement it is submitted that no further action has been taken by the State Government to make appointments.
In the circumstances, therefore, it becomes imperative to apply the doctrine of necessity in the light of the authorities cited above. Let the State Government, therefore, clarify its stand as to why applying the doctrine as discussed above , the commission in its existence form may not be directed to proceed with process of selection pursuant to advertisement issued.
In the circumstances, the Court directed the State to file an appropriate affidavit by the next date fixed when the Court will consider to proceed to pass appropriate directions to meet the situation that has arisen on account of non action on the part of the State Government to appoint members to the Commission/ Board.
The Court has fixed the next hearing of the petition on 16th May, 2023.