Mandeep Singh vs State Of Punjab

2025 INSC 834 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S)._______________ OF 2025 [@ SPECIAL LEAVE PETITION (CIVIL) NO(S). 23141 OF 2024]

MANDEEP SINGH & ORS. …APPELLANTS Versus STATE OF PUNJAB AND ORS. …RESPONDENTS

WITH

CIVIL APPEAL NO(S)._______________ OF 2025 [@ SPECIAL LEAVE PETITION (CIVIL) NO(S). 23324 OF 2024]

AND CIVIL APPEAL NO(S)._______________ OF 2025 [@ SPECIAL LEAVE PETITION (CIVIL) NO(S). 907 OF 2025]

JUDGMENT

SUDHANSHU DHULIA, J.

1.Leave granted.

2.The appellants before this Court have challenged the judgment

dated 23.09.2024, of the Division Bench of Punjab and Signature Not Verified

Haryana High Court which has reversed the findings of the Digitally signed by Nirmala Negi Date: 2025.07.14 17:57:09 IST Reason:

learned Single Judge and has thereby upheld the selections

1 made by the State of Punjab for the posts of Assistant

Professors and Librarians in Government Degree colleges of

Punjab.

3.The brief facts of the case are as follows:

a. In January 2021, the State of Punjab had sent separate

requisitions to the Punjab Public Service Commission

(hereinafter referred to as ‘Commission’), for recruitment

of 931 Assistant Professors (dated 15.01.2021) and 50

Librarians (dated 29.01.2021), in Government Degree

Colleges in the State. Consequent to this and based on

correspondences exchanged, the Commission engaged 24

subject experts to prepare the syllabus for the

competitive examinations and honorarium was paid to

them.

b. Later, an additional 160 posts of Assistant Professors

and 17 posts for Librarians were created and sanctioned

for newly established colleges, and on 15.09.2021, the

State’s Department of Higher Education (hereinafter

referred to as ‘the Department’) sought Commission’s

consent to fill these posts through the Departmental

Selection Committee rather than the Commission. c. The Commission replied by letter dated 16.09.2021,

expressing their inability to respond on the ground of the

2 Chairman having retired and the new appointment

having not taken place. The Government then by a

memorandum dated 17.09.2021 approved the

recruitment of 160 and 17 posts of Assistant Professors

and Librarians respectively, through Departmental

Selection Committees which though had to follow the

University Grants Commission (hereinafter ‘UGC’)

guidelines or regulations.

d. A change in Government happened on 20.09.2021 after

which on 09.10.2021, the selection process was reviewed

in a meeting chaired by the Secretary, Department of

Higher Education. In this meeting, the entire process of

recruitment was changed and it was decided that

selection would now be made only on the basis of a

Written Test, which will be conducted by two separate

selection committees of two State Universities: (a) Punjab

University, Patiala, and (b) the Guru Nanak Dev

University, Amritsar. Further, it was decided that all the

1091 posts (931 plus 160 posts) of Assistant Professors

and 67 posts (50 plus 17 posts) of Librarians; and not

just the posts recently created, are to be filled through

3 these departmental selection committees. This decision

was placed for approval before the Chief Minister on

12.10.2021, with the observation that it shall

subsequently be placed for approval before the Council of

Ministers; latter approval was never obtained.

e. On 18.10.2021, Government issued a memorandum

conveying to Director Public Instructions (Colleges)

(hereinafter ‘DPI’) the decision for recruitment of 1091

Assistant Professors and 67 Librarians on the basis of

two departmental selection committees of two State

Universities. On 19.10.2021, advertisements for the

above posts were issued.

f. In a little over a month, the exam was conducted and the

result was announced on 28.11.2021. Meanwhile, in the

first week of November, Writ Petitions were filed before

the High Court, challenging the memorandum dated

18.10.2021 and advertisements dated 19.10.2021. On

26.11.2021 in CWP No. 22446 of 2021, before the results

were published, while issuing notice, it was clarified that

the selection shall be subject to the result of the writ

petition.

4 g. Vide order dated 08.08.2022, the learned Single Judge

allowed the Writ Petitions and quashed the entire

recruitment process for being in violation of law

inasmuch as the Commission not having been excluded

as per procedure prescribed and State having not

followed the UGC guidelines and adopting an arbitrary

process for the recruitment.

h. Against the order of the learned Single Judge, the State

of Punjab as well as the candidates who were

selected/appointed filed intra-court appeals. Vide the

impugned order dated 23.09.2024, the Division Bench of

the High Court allowed these intra-court appeals and

upheld the recruitment by quashing the order passed by

the learned Single Judge. Assailing the same, appellants

are before us.

4.Before the learned Single Judge, the Division Bench as well as

before this Court, the appellants’ have been consistent in

their submission that the recruitment process was vitiated

on more than one count. Most importantly the recruitment

was made in violation of UGC Regulations of 2010

(hereinafter ‘2010 UGC Regulations’) which were adopted by

the State of Punjab on 30.07.2013, and which mandated an

5 entirely different criterion and procedure for recruitment.

Further the selection to these posts ought to have been made

through the Commission, as admittedly these were the posts

within the purview of Commission [under Article 320 of the

Constitution of India read with Punjab Public Service

Commission (Limitation of Functions) Regulations, 1955

(hereinafter ‘the 1955 Regulations’)]. In any case, the entire

process is arbitrary and was followed not in the interest of

the State or for the cause of higher education but for narrow

political gains.

5.The State and the private respondents would though argue that

Article 320(3) is directory and not mandatory in nature. They

would submit that the State government is empowered to

decide its own method and procedure of recruitment for the

posts of Assistant Professors and Librarians in Degree

colleges under the State government; and it is not bound to

make these selections through the Commission.

6.We have heard Senior Advocates Mr. Raju Ramchandran, Mr.

Nidhesh Gupta, Mr. Preetesh Kapur and Mrs. Rekha Palli

appearing for the appellants, and Senior Advocates Mr. Kapil

Sibal, Mr. Rakesh Dwivedi and Mr. P.S. Patwalia for the

private respondents. We have also heard Mr. Shadan Farasat,

6 Additional Advocate-General appearing on behalf of the State

of Punjab.

7.It is first necessary to narrate the sequence of events and their

context as this would give us a better perspective. A large

number of posts of Assistant Professor and Librarians in

Degree Colleges remained unfilled for the last 20 years or so

in Punjab. The last selection to these posts was only made in

the year 2002, and this too got into trouble due to allegations

of corruption which led to a protracted litigation. Later,

another recruitment was attempted in the year 2008 for 265

posts which was again stuck in litigation for many years. The

issue of large unfilled vacancies in Punjab had come earlier

before this Court by the guest/part-time faculties where a

Three-Judge Bench of this Court vide its order dated

02.12.2014 had directed the Commission to fill the

sanctioned vacant posts as soon as possible. The relevant

portion of that order reads as under:

“4. We do not intend to keep these Special Leave Petitions on board. Accordingly, we dispose of the Special Leave Petitions with an observation that the Punjab Public Service Commission, Patiala will take all effective steps to fill up all the sanctioned posts of the

7 lecturers in the State of Punjab as expeditiously as possible, at any rate, within 12 months’ time from today.”

The argument of the State is that the main reason for these

vacancies remaining unfilled for all these years was that

these posts were within the purview of the Commission

which had failed to fill these posts and hence the decision

taken by the State to remove these posts from the purview of

the Commission and to expedite the process of selection was

in public interest.

8.The Commission has a duty to make selections for different

services in response to the requisition of the State

government. In the present case, in January 2021, the State

government had sent two requisitions for the recruitment of

931 Assistant Professors and 50 Librarians respectively, yet

no decision had been taken by the Commission.

9.Article 320(3) of the Constitution provides that the Commission

shall be consulted in the recruitment of different services.

The relevant portion of Article 320 of the Constitution reads

as follows:

“Article 320: Functions of Public Service Commissions-

(1)...

(2)...

8 (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted—

(a) on all matters relating to methods of recruitment to civil services and for civil posts;

(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;

(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;

(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government

9 of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them:

Provided that the President as respects the all- India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.”

Public Service Commission at the Union and at the State

levels are constitutional bodies. There is a purpose for which

these institutions have been created, which we shall discuss

in a while. All the same, it is not necessary that all posts in

the States or Union must be filled through Commission. It is

not mandatory. But there is a method prescribed under the

law to take out these posts from the purview of the

10 Commission. This has been violated in the present case; is

the argument. But first, for the role of the Commission.

10. Impartiality, fairness and recognition of merit while selecting

Public Servants are absolutely necessary in modern

democracies. The basic purpose of a Union Public Service

Commission or State Public Service Commission(s) for that

matter, is to remove impartiality and political influence while

making selection on Public Posts. It is necessary to have an

impartial Public Service Commission in a Democracy, or

everything will be reduced to a mere scramble for jobs 1. The

concept is not new. It goes back to the Government of India

Act, 1919, and even earlier to the pre 1857 era. The East

India Company, which had under its administration a vast

area, felt the need to replace the system based on

recommendations and nominations to a merit-based system,

which was also the recommendation of the Macaulay

Committee Report2. A Civil Service Commission was then

established in 1854 to conduct competitive examinations

which were held for the first time in the year 1855.

1 Dr. Naresh Chandra Roy, The Working of the Public Service Commission in Bengal, Indian Political Science Conference, Third Session, Mysore, Dec 1940, p.192. 2 See Macaulay Report on the Indian Civil Service 1854.

11 11. It was the Government of India Act, 1919 that formally

introduced the concept of Public Service Commissions in

India. Section 96C3 provided for the establishment of a

Central Public Service Commission in India. But the Public

Service Commission was not set up immediately till its need

was emphasized by the Lee Commission in its report of 1924:

“Wherever democratic institutions exist, experience has shown that to secure an efficient Civil Service it is essential to protect it so far as possible from political or personal influences and to give it that position of stability and security which is vital to its successful working as the impartial and efficient instrument by which Governments, of whatever political complexion, may give effect to their policies. In countries where this principle has been neglected, and where the “spoils system” has taken place, an inefficient and disorganized Civil Service has been the inevitable result and corruption has been rampant. In America a Civil Service Commission has been constituted to control recruitment of the Services, but, for the purposes of India it is from the Dominions of

3 Section 96C: Public Service Commission- (1) There shall be established in India a public service commission, consisting of not more than five members, of whom one shall be chairman, appointed by the Secretary of State in Council. Each member shall be removed before the expiry of his term of office, except by order of the Secretary of State in Council. The qualifications for the appointment, and the pay and pension (if any) attaching to the office of chairman and member, shall be prescribed by rules made by the Secretary of State in Council.

(2) The public service commission shall discharge, in regard to recruitment and control of the public services in India, such functions as may be assigned thereto by rules made by the Secretary of State in Council

12 the British Empire that more relevant and useful lessons can perhaps be drawn.

Canada, Australia and South Africa now possess Public or Civil Services Acts regulating the position and control of the Public Services, and a common feature of them all is the constitution of a Public Service Commission, to which the duty of administering the Acts is entrusted. It was this need which framers of the Government of India Act had in mind when they made provision in Section 96C for the establishment of a Public Service Commission to discharge “in regard to recruitment and control of the Public Services in India such functions as may be assigned thereto by rules made by the Secretary of State in Council”. Since the passing of the Act, a prolonged correspondence, extending over nearly four years, has been passed between the Secretary of State, the Government of India, and Local Governments, regarding the function and machinery of the body to be set up. No decisions have, however, been arrived at, and the subject has been referred to this Commission for consideration”4

12. It was based on the recommendation of the Lee Commission

that the Commission was formed as contemplated under the

Government of India Act, 1919. The Central Public Service

Commission was thus established in the year 1926, and its

functions were governed by the Public Service Commission

4 Report of the Royal Commission on Superior Civil Services in India, dated 27th March, 1924 at pp.13-14 and 16.

13 (Function) Rules, 1926. Till this stage, the role of a similar

Commission at Provincial level was not much in discussions.

13. It was only with the Simon Commission Report that we have

an official recommendation for the first time for the setting

up of Provincial Public Service Commissions. It is well-

known that the formation of the Simon Commission was

resented by the leaders of the Indian freedom struggle,

primarily because it had no Indian representative, and

because senior officials of the British Raj had questioned the

very ability of Indians to draft a Constitution. In response, an

all-party committee under the chairmanship of Congress

stalwart Motilal Nehru was formed, which was tasked with

drafting a Constitution for India. The report submitted by

this committee (which came to be known as the Nehru

Report) also favoured the creation of a Permanent Public

Service Commission to deal with issues such as the

recruitment, appointment, emoluments etc. of civil servants

in India.

14. Finally, a Federal Public Service Commission and Public

Service Commissions for Provinces were established under

Section 2645 of the Government of India Act, 1935 and their 5 264.Public Service Commission: (1) Subject to the provisions of this Section, there shall be a Public Service Commission for the Federation and a Public Service Commission for each Province.

14 functions were given in Section 266, which was pari materia

to Article 320 of the Constitution.

15. While the Constituent Assembly was busy in drafting the

Constitution for free India, the Public Service Commission at

the Centre and in some of the States were already

functioning.

16. During discussion on Public Service Commissions in the

Constituent Assembly Debates, Dr. P.S Deshmukh

highlighted the purpose and importance of the Public Service

Commissions in these words:

“...these Commissions are said to be a necessity of a modern State. These Commissions are primarily meant to keep appointments away from day to day politics, party preferences and influences and the attempt is made, by having recourse to these Commissions, that the appointments shall be as far as possible on merit and there shall be no interference in their choice or in their selection from day to day by the executive authorities of the State.”

(2) Two or more Provinces may agree-

(a) that there shall be one Public Service Commission for that group of Provinces; or

(b) that the Public Service Commission for one of the Provinces shall serve the needs of all the Provinces, and any such agreement may contain such incidental and consequential provisions as may appear necessary or desirable for giving effect to the purposes of the agreement and shall, in the case of an agreement that there shall be one Commission for a group of Provinces, specify by what Governor or Governors the functions which are under this Part of this Act to be discharged by the Governor of a Province are to be discharged.

(3) The Public Service Commission for the Federation, if requested so to do by the Governor of a Province, may, with the approval of the Governor-General, agree to serve all or any of the needs of the Province…

15

17. Our entire purpose here of giving this background to the

formation of Public Service Commission in India both at the

Union as well as State level, was to emphasize the purpose

for its establishment, which was to have an impartial and

autonomous body which should select the best possible

persons for Government posts, and to have fairness and

transparency in the procedure. The present dispute which is

before this Court reflects this concern.

18. Article 320(3)(a) of the Constitution, inter alia, states that the

State Public Service Commission “shall be consulted on all

matters relating to methods of recruitment to civil services and

for civil posts”. The provision appears to be mandatory as the

words “shall be consulted” suggest. All the same, the learned

counsel for the respondents would rely on a 1957

Constitution Bench decision of this Court in State of U.P v.

Manbodhan Lal Srivastava 1957 SCC OnLine SC 4 which

had laid down that the provision is not mandatory but merely

directory.

19. The above decision is binding on us. Yet, we must examine

the context in which the above judgment was rendered. The

context is important. Although the findings in the judgment

are generally worded, this Court in Manbodhan Lal

16 Srivastava was not dealing with Article 320(3)(a), as is the

case before us, but was concerned with Article 320(3)(c) i.e. a

disciplinary matter in an individual case. In Manbodhan Lal

Srivastava, a government servant who was posted as an

officer-on-special-duty in the Education Department from

1948 to 1951 was accused of giving favours to his friends

and relatives, while working in a Book Selection Committee,

as he had approved books written by his 14 year old nephew

and other publishers from whom he had taken certain money

on interest. In August 1952, he was suspended from service

and a departmental enquiry was conducted against him. On

the recommendations of the departmental enquiry report, the

Government issued a show cause notice under Article 311(2)

of the Constitution and finally, after hearing the concerned

employee, the Government issued a notification reducing his

rank and compulsorily retiring him. These were the facts of

the case before this Court.

20. Article 320(3) speaks of a variety of matters where the

Commission is to be consulted- (a) Recruitment in Service

and (c) disciplinary matters, being two such instances.

Whereas Article 320(3)(c) is generally concerned with

17 individual matters relating to disciplinary proceedings, Article

320(3)(a) deals with policy issues where an entire

recruitment process is at stake. Manbodhan Lal

Srivastava, was a case dealing with Article 320(3)(c), and

not with Article 320(3)(a), which is before us.

21. Another question in Manbodhan Lal Srivastava, was

whether Article 311 of the Constitution of India is subject to

Article 320(3)(c). Para 4 of the Judgment reads like this:

“Hence, the main question in controversy in Appeal No. 27 of 1955, is whether the High Court was right in taking the view that Article 311 was subject to the provisions of Article 320(3)(c) of the Constitution, which were mandatory, and as such, non-compliance with those provisions in the instant case, was fatal to the proceedings ending with the order passed by the Government on September 12, 1953.”

22. The judgment also restricts itself to the facts relating to

Article 320(3)(c). This is how it concludes :

“13. In view of these considerations, it must be held that the provisions of Article 320(3)(c) are not mandatory and that non-compliance with those provisions, does not afford a cause of action to the respondent in a court of law. It is not for this Court further to consider what other remedy, if any, the respondent has.

18 Appeal No. 27 is, therefore, allowed and Appeal No. 28 dismissed. In view of the fact that the appellant did not strictly comply with the terms of Article 320(3)(c) of the Constitution, we direct that each party bear its own costs throughout.”

23. Thus, it was in the background of the above facts that it was

held by this Court that consultation with the Commission to

be directory and not mandatory. Manbodhan Lal

Srivastava also emphasized the purpose of the proviso to

Article 320(3) of the Constitution which states that the

Governor of a State is empowered to make regulations

specifying the matters in which it is not necessary for the

State to consult the Public Service Commission. This is what

was said by this Court:

“7…Perhaps, because of the use of the word “shall” in several parts of Article 320, the High Court was led to assume that the provisions of Article 320(3)(c) were mandatory, but in our opinion, there are several cogent reasons for holding to the contrary. In the first place, the proviso to Article 320, itself, contemplates that the President or the Governor, as the case may be, “may make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted”.

19 The words quoted above give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the Commission need not be consulted. If the provisions of Article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary. If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate, in the terms in which it stands. That does not amount to saying that it is open to the Executive Government, completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services. It is, therefore, incumbent upon the Executive Government, when it proposes to take any disciplinary action against a public servant, to

20 consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.” (Emphasis Provided) Thus, even if, for arguments sake, consultation with

Commission is held to be directory then also there is no

doubt that once Regulations are framed these are to be

followed, “in letter and spirit”.

24. In other words, this Court in Manbodhan Lal Srivastava,

had recognised the importance of Regulations framed under

the proviso to Article 320(3) of the Constitution and had

cautioned against the casual bypassing of the Regulations. In

the case at hand, Regulations as contemplated under the

Proviso were already in existence in Punjab known as Punjab

Public Service Commission (Limitation of Functions)

Regulations, 1955. For our purposes, it is relevant to note

that with these Regulations the State had taken out certain

posts outside the purview of the Commission. Admittedly,

the posts of Assistant Professors and Librarians in Degree

Colleges were not amongst them. In other words, these posts

were within the purview of the Commission. Thus, selection

of these posts was within the purview of the State

21 Commission, and it was mandatory that it ought to be

consulted.

25. The respondents have tried to meet this deficiency by stating

that the State had amended the 1955 Regulations in March

2022 (by retrospective effect), by mentioning these posts in

the 1955 Regulations and these posts were then taken out

from the purview of Commission. All the same, we are unable

to accept this argument inasmuch as the amendment was

made after concluding the entire recruitment process and

giving appointment letters to the selected candidates. It was

hence a post facto exercise. The Government had already

made its selections on the posts which could only have been

done by the Commission under Article 320 of the

Constitution of India.

26. This apart, the 1955 Regulations prescribed a procedure

under which posts within the purview of the Commission

could be withdrawn. Part III-B and Part III-C of the

‘Regulations and Instructions Governing the Work of the

Punjab Public Service Commission’ provide a procedure for the

exclusion of posts/services from the purview of the

Commission. Regulation 20 reads as under:

22

“20. For exclusion of posts/services and other matters from the purview of the Punjab Public Service Commission, the following procedure is to be followed:

(i) Individual proposals for taking out posts from the purview of the Commission would be processed by the Administrative Departments concerned. After the Department had taken a tentative decision to take out certain posts from the purview of the Commission, the Department would obtain the views/comments of the Public Service Commission by making a self-contained reference to the Commission.

(ii) On receipt of the comments/views of the Commission, the matter would further be examined by the Department concerned keeping in view the comments/views so received and the advice of the Department of Personnel and Administrative Reforms. If the Department comes to a definite conclusion that the posts in question must be taken out of the purview of the Commission, the Department would take the matter to the Council of Ministers incorporating the advice of the Department of Personnel and Administrative Reforms in the Memorandum to be placed before the Council of Ministers.

(iii) After the proposal of the Administrative Department is approved by the Council of Ministers, necessary action to amend the Punjab Public Service Commission (Limitation of Functions) Regulations, 1955 would be taken by the Department of Personnel and Administrative Reforms.”

23

27. Further, Part III-C of the Regulations provides that in cases

where a difference of opinion between a Department of

Government and Public Service Commission arises then

what is to be done. Regulation 21 reads as under:

“21. In order to secure uniformity of practice in cases of difference of opinion between a Department of Government and the Commission and to ensure that the Commission is duly consulted in all cases in which such consultation is necessary, all cases, in which there is difference of opinion between a Department and the Commission, should be referred to the Chief Minister.

22. The procedure for submitting cases to the Chief Minister should be that whenever as department finds itself unable to arrive at an agreement with the Commission, the cases should be sent over to the Chief Secretary on an early stage, if possible before any decisive action is taken…”

28. It is admitted that in the present case the required

procedure was not followed. In relation to 160 posts of

Assistant Professor and 17 posts of Librarians, the

Department had sent a reference to take the posts out of

the purview of the Commission, but the Commission could

24 not take any decision, in the absence of its Chairperson; a

post which remained unfilled for long years. Meanwhile the

concerned department proceeded without the views of the

Commission. 931 posts of Assistant Professors and 50

posts of Librarians; admittedly with the Commission,

pending recruitment as requisitioned by the State itself,

and not taken out of the purview of the Commission, were

also added and the advertisement inviting applications for

the posts was issued on 19.10.2021. On the same day, the

Department wrote to Commission to return its requisition

sent to Commission for these posts. The Commission,

however, on 16.11.2021 wrote to the Department

disagreeing with the idea of taking the posts out of the

purview of the Commission since the action as required at

the end of the Government was not followed. Without any

further action, the examinations were conducted between

20th to 22nd November, 2022.

29. It was after the selection and appointments were made that

retrospectively on 26.03.2022 an amendment was made

taking out these posts out of the purview of the

Commission. The learned Single Judge has rightly

25 observed that the retrospective amendment to the 1955

Regulations, which was made much after the conclusion of

the recruitment process, was nothing but a response to the

Writ Petitions which had been filed by this time by the

appellants. The learned Single Judge also notes that in the

last 30 years, five advertisements had been issued for

filling of posts of Assistant Professors/Lecturers6 and these

selections were to be conducted by the Commission. The

State never took the recruitment for these posts in its

hands.

30. What was the need to bypass the Commission in the present

case? The learned counsel who appear for the appellants

would argue that a new Government was formed in Punjab in

September, 2021 which had to face elections in February,

2022 and the burning hurry to make selections and

appointments to more than 1000 such posts, on the eve of

State elections was an act of political pragmatism, and

nothing more.

31. In case the State government was dissatisfied with the

manner in which the Commission was conducting the

recruitment (an argument which appears to have found

6 Now the posts of Lecturers have been re-designated as Assistant Professors.

26 favour with the Division Bench), then it ought to have

followed the due procedure and withdrawn the posts from the

purview of the Commission in accordance with the 1955

Regulations. The case at hand is a prime example where

Commission’s role was totally eliminated in the recruitment

and well considered selection parameters, prescribed by an

expert body, like UGC, were replaced with a simple Multiple-

Choice Question type test, which is unheard of where

appointments for the posts of Assistant Professor in degree

colleges are concerned.

32. Let us for the moment keep aside the ground of political

expediency and look at what transpired leading to the volte

face insofar as the selection entrusted to the Commission as

early as in January 2021. At the risk of repetition, the

decision of the Council of Ministers on 17.09.2021, as

approved by the Chief Minister was to take out 160 posts of

Assistant Proffesors and 17 posts of Librarians from the

purview of the Commission, which were the freshly created

posts in the newly established Colleges. The selection

committee proposed for the said exercise was also to be

Chaired by a Former Chairman of the UGC. On 20.09.2021,

27 a new Government took over and on 09.10.2021, a committee

headed by the Secretary, Department of Higher Education

reviewed the earlier decisions and constituted two separate

Committees, each headed by the Vice-Chancellors of the two

Universities and the selection criteria was confined to a

written test. The proposal was put up before the Chief

Minister, with the observation that it shall subsequently be

placed before the Council of Ministers. Though the Chief

Minister accepted the proposal on 13.10.2021, it was never

placed before the Council of Ministers and a Memo was

issued on 18.10.2021 including the entire posts of Assistant

Professors and Librarians available, to be filled up. As noticed

above the decision to remove the said posts from the purview

of the Commission was taken much later, after the selection

process stood completed.

33. Let us also understand the scheme of UGC Regulations.

Entry 66 of List I of Schedule VII of the Constitution

empowers Union to make laws relating to “Co-ordination and

determination of standards in institutions for higher education

or research and scientific and technical institutions”. Under

this entry, the Parliament had enacted the UGC Act, 1956 28 setting up an expert body named UGC for the purposes of

the Act, which is clear from the Preamble of the UGC Act

which reads as follows:

“An Act to make provision for the co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission.”

34. Under provisions of the UGC Act, UGC frames Regulations

from time to time setting qualifications and other standards

for teaching and non-teaching staff. Under Section 26(1)(e)

and (g)7, the UGC (Minimum Qualifications for Appointment

of Teachers and Other Academic Staff in Universities and

Colleges and Measures for the Maintenance of Standards in

Higher Education) Regulations, 2010 were framed. These

Regulations set the minimum eligibility criterion for the

appointment to various posts including Assistant Professors

and Librarians. A method of selection to these posts is also

provided in the 2010 UGC Regulations which has not been 7 The Commission may, by notification in Official Gazette, make regulations consistent with this Act and the rules made thereunder-

(a) … (b) … …

(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instruction.

(f) …

(g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities.

29 followed in the present case. To this, the private respondents

as well as the State have taken the stand that these

Regulations are directory in nature and non-compliance of

these Regulations would not vitiate the recruitment.

35. The respondents would place reliance upon Kalyani

Mathivanan v. KV Jeyaraj & Ors. (2015) 6 SCC 363 to

contend that UGC Regulations are not binding on the State if

the State has not adopted the UGC Regulations 2018 which

were in force at the relevant time, as was the case here.

What were adopted by the State in the present case were the

2010 UGC Regulations, which stood superseded by this time

by the subsequent Regulations of 2018 of UGC which were

not adopted by the State till the completion of recruitment

process.

36. All the same, the adoption of 2010 UGC Regulations by the

State vide order dated 30.07.2013 was an adoption by

incorporation and not an adoption by mere reference. This

means that the 2010 UGC Regulations were in force in the

State of Punjab despite its repeal by the 2018 Regulations by

the UGC. This is clear from the intention and purpose of the

order dated 30.07.2013 where it was stated in no uncertain

terms that the 2010 Regulations are being adopted with a

30 view to raise the standard of Higher Education in the State,

with a specific mention of adoption of API Scores. Now API as

we know means Academic Performance Indicator which is a

method used in Higher Education to assess the quality and

merit of teachers in Higher Education which would include

teaching experience and research and academic contribution,

which are extremely relevant factors to judge the merit of a

teacher in Higher Education. The relevant part of the order

dated 30.07.2013 reads as follows:

“With a view to raise the standard of Higher Education in the State of Punjab, the Notification issued by the U.G.C dated 30.06.2010 and 14.06.2013 pertaining to governing the appointment and promotion of Principals/Professors/Associate Professors/Asst. Professors, the relevant API scores with modifications mentioned below are ordered to be applied in the Universities, Govt, aided and private colleges : -

1. The term/tenure of the Principal of a private college is raised from 5 to 10 years.

2. D.P.T. Punjab or his representatives will be associated with the selection committee constituted for the appointment of Principals/Asst. Professors (covered under Grant-in-aid posts) in private colleges.”

31

37. The distinction between adoption by incorporation as

opposed to reference has been explained by Bhagwati, J.,

speaking for a three-judge Bench of this Court in Mahindra

& Mahindra Ltd. v. Union of India, (1979) 2 SCC 529, in

the following terms:

“…It ignores the distinction between a mere reference to or citation of one statute in another and an incorporation which in effect means bodily lifting a provision of one enactment and making it a part of another. Where there is mere reference to or citation of one enactment in another without incorporation. Section 8(1) applies and the repeal and re-enactment of the provision referred to or cited has the effect set out in that section and the reference to the provision repealed is required to be construed as reference to the provision as re-enacted. Such was the case in Collector of Customs v. Nathella Sampathu Chetty [AIR 1962 SC 316 :

(1962) 3 SCR 786] and New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise [(1970) 2 SCC 820 : AIR 1971 SC 454 : (1971) 2 SCR 92] . But where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter. The effect of incorporation is as if the provision incorporated were written out in the incorporating statute and were a part of it.

Legislation by incorporation is a common legislative device employed by the legislature,

32 where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporation statute…”

38. The distinction here is that in case of adoption by

incorporation, the subsequent amendment or repeal of the

incorporated statute will be of no consequences on the

incorporation. The adoption then becomes frozen at the point

in time when the incorporation was made. But the question

whether a provision of law is adopted by reference or

incorporation also depends upon the language of the

order/statute in which such provision is being adopted. It

may also depend upon the conduct of the State and how it

has been recognised and accepted in that State. 2018 UGC

Regulations may have repealed the 2010 UGC Regulations

but still they were being considered and recognised in the

State of Punjab for all purposes, even after its repeal. We

33 have already referred above the order dated 30.07.2013

whereby the State Government had adopted 2010

Regulations and the reasons assigned by the State

Government in doing so which was to uplift the standard of

higher education.

39. Further the memorandum passed by Council of Ministers on

17.09.2021 makes it clear that the State of Punjab was still

referring to the 2010 UGC Regulations irrespective of the fact

that 2010 UGC Regulations had been repealed in 2018. In

this memorandum, the Council of Ministers has explicitly

mentioned the 2010 UGC Regulations and also admitted that

the 2010 UGC Regulations have to be followed strictly since

they were adopted by the State of Punjab. The relevant

portion of the said memo reads as under:

1.4 The UGC has already notified rules and regulations for recruitment of Assistant Professors and Librarians in its notification “UGC Regulation on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education” of 2010, which has been adopted by the Government of Punjab along with the subsequent amendments.

34 The Departmental Selection Committee will strictly follow the guidelines as per above UGC notification for recruitment of 160 Assistant Professors and 17 Librarians. The relevant portion of the notification for short listing”/appointment of candidates to the post of Assistant Professor and Librarians under the University System (in University and colleges) in Appendix III Table II-C is reproduced as under:

Selection a) Academic Record and Committe Research Performance e Criteria (50%) / b) Assessment of Domain Weightag Knowledge and Teaching e (Total Skills (30%) Weightag c) Interview e=100) Performance (20%)

40. Thus, officially the 2010 UGC Regulations were in force in

the State of Punjab as these were adopted by way of

incorporation and not by reference. The repeal of 2010

Regulations by the UGC Regulations of 2018 had no impact

insofar as applicability of 2010 Regulations in the State of

Punjab was concerned. Also, it is on record that after the

impugned order of the Division Bench, the State adopted the

2018 UGC Regulations. This shows that the State recognises

the importance of the UGC Regulations. The chief intention

35 of the G.O. dated 30.07.2013 is that while making selection

to the posts of Assistant Professors API Scores are to be seen.

This was the purpose; which negates a simple objective type

test.

41. Doing away with the 2010 Regulations was also a last minute

decision. In January 2021 requisition for recruitment of 931

Assistant Professors and 50 Librarians was sent by the State

government to the Commission. Then, a meeting of the

Council of Ministers was held on 17.09.2021 in relation to

the recruitment of additional 160 posts of Assistant

Professors and 17 posts of Librarians which had come up in

16 new Government Colleges where a decision was taken to

remove these posts from the purview of the Public Service

Commission so that recruitment can be made through a

Departmental Selection Committee, which we have already

mentioned above, but what is significant here is that till this

time the Government had all the intentions of following the

2010 Regulations as the memorandum dated 17.09.2021

inter-alia states :-

1.4 The UGC has already notified rules and regulations for recruitment of Assistant Professors and Librarians in its notification

36 “UGC Regulation on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education” of 2010, which has been adopted by the Government of Punjab along with the subsequent amendments.

The Departmental Selection Committee will strictly follow the guidelines as per above UGC notification for recruitment of 160 Assistant Professors and 17 Librarians. The relevant portion of the notification for short listing”/appointment of candidates to the post of Assistant Professor and Librarians under the University System (in University and colleges) in Appendix III Table II-C is reproduced as under:

Selection Academic Record Committee and Research Criteria / Performance (50%) Weightage (Total Assessment of Weightage=100) Domain Knowledge and Teaching Skills (30%) Interview Performance (20%)

(Emphasis provided)

Till 17.09.2021, therefore, the Government had full

intentions of following the 2010 Regulations. The decision

37 earlier was only to remove the posts out of the purview of

Commission.

42. In a more recent judgment of a Division Bench of this Court

in Gambhirdan K. Gadhvi v. State of Gujarat (2022) 5

SCC 179, it is held that UGC Regulations have a mandatory

character and are binding on all universities, State or

Central, that have opted to receive the financial assistance of

the UGC under its Scheme dated 31.12.2008 (which later

came to be incorporated as Appendix I of the 2010 UGC

Regulations). In that case, what weighed in the mind of the

Division Bench of this Court was the fact that the concerned

University had availed of the above-mentioned UGC Scheme,

and as part of the same, it had agreed to adhere to UGC

regulations (2010 and 2018 regulations, in that case). As a

result, the University was bound to follow the UGC

Regulations for the purposes of appointment of Vice-

Chancellors, and it had to amend the relevant rules/statutes

to bring them in line with the UGC Regulations. This is what

was said:

38

“29. It is not in dispute that the SP University is receiving Central financial assistance under the Scheme and it is included in the State Universities receiving Central financial assistance as per Section 12(b) of the UGC Act, 1956. Therefore, having adopted the UGC Scheme and implemented the same and getting Central financial assistance to the extent of 80% of the maintenance expenditure, the State Government and the SP University are bound by the UGC Regulations, 2010. The UGC Regulations, 2010 are superseded by the UGC Regulations, 2018. However, the eligibility criteria for the post of Vice- Chancellor and the constitution of the Search Committee for appointment of a Vice- Chancellor remains the same. Therefore, the State of Gujarat and the universities thereunder including the SP University are bound to follow UGC Regulations, 2010 and UGC Regulations, 2018.”

43. It was held that UGC Regulations became a part of the

parent Act i.e. the UGC Act, being a piece of subordinate

legislation that is laid before both Houses of Parliament. As a

result, these would prevail in case there is any inconsistency

between State legislation and UGC regulations, by application

of the doctrine of repugnancy:

“50. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and

39 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject “education” is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto.”

(Emphasis provided)

44. UGC Regulations are made under UGC Act which was

enacted by Parliament under Entry 66 of List I of the

Schedule VII, whereas State Governments exercise powers

under Entry 25 of the List III of the Schedule VII to make

laws relating to “education”. Further, it is to be noted that

Entry 25 of the List III is subject to Entry 66 of List I. Hence,

laws, including the subordinate legislations as in the present

case, made under Entry 66 of the Union List would prevail

over any law made under Entry 25 of the Concurrent List.

40

45. This Court in State of T.N. v. Adhiyaman Educational &

Research Institute, (1995) 4 SCC 104 while dealing with

Entry 66 and Entry 25 of the Union List and Concurrent

List, respectively, observed thus:

“41. What emerges from the above discussion is as follows:

(i) The expression ‘coordination’ used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make ‘coordination’ either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.

(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to

41 give effect to Entry 66 of the Union List, it would be void and inoperative.

(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.

(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case…”

(Emphasis provided)

46. In short, in the present case the UGC Regulations would be

binding particularly when the State of Punjab vide its order

dated 30.07.2013 had adopted 2010 UGC Regulations.

47. We may add here that what also weighed with the Division

Bench of the High Court was the fact that it was the Punjab

Educational Service (College Cadre) (Class II) Rules, 1976

(hereinafter ‘1976 Rules’) which were applicable, and not the

UGC Regulations. While it is true that the 1976 Rules were

applicable to the recruitment but a perusal of the same

shows that these only mandate that the recruitment to posts

of Assistant Professors and Librarians should be through

42 direct recruitment. It does not prescribe any mode or method

of recruitment. This aspect was rightly noticed by the learned

Single Judge. As discussed in detail above, the State of

Punjab itself adopted the standards and process laid down by

the UGC. Therefore, it was bound to follow these Regulations,

notwithstanding the 1976 Rules.

48. In short, we find that there is a total arbitrariness in the

present selection. The memo of Council of Ministers dated

17.09.2021 shows that State wanted to recruit only on 160

posts of Assistant Professors and on 17 posts of Librarians

through departmental selection committee on an urgent

basis as these were for the newly opened colleges. As we have

already stated, even in those cases, the recruitment was to be

made by following the UGC Regulations. Next, the 931 and

50 posts of Assistant Professors and Librarians, which were

lying vacant and in regard to which requisition had already

been sent to Commission, were added and it was decided

that the sole basis of the selection would be a single exam.

Moreover, a mere 45-day deadline was set for the

commencement and conclusion of the whole recruitment

process and ultimately within a span of two months, not only

43 was the recruitment process concluded, but even

appointment letters were issued. One cannot fail to notice the

burning haste with which this entire exercise was

undertaken by the powers that be. It has thus been

repeatedly pressed by the appellants that all this was

motivated by political exigency in the form of the impending

Assembly elections in the State of Punjab.

49. An attempt was made by the State and the private

respondents to argue that the selection process which was

ultimately adopted was in any case better than the one

prescribed by the UGC. The logic given is that a written test

would be impartial and will be same to all, whereas there are

always chances of abuse, favouritism, nepotism, even

corruption in a test based on API. Written test is also less

time consuming it was argued. However, we are not at all

convinced with this argument. The recruitment for teaching

posts in higher education on the basis of scores in an

objective type written test, on grounds that such a test is non

arbitrary whereas viva voce and appreciation of other

aspects such as academic work could be abused and could

be unfairly applied, is an argument which is puerile to say

44 the least. Abandoning a time tested and uniformly followed

method of selecting Assistant Professors in higher education

with Multiple-Choice Questions based written examination is

unacceptable; especially when the State itself has adopted

the selection process laid down by the expert body which is

also the apex statutory body, the UGC constituted under

Entry 66 in the Union List of the Seventh Schedule of the

Constitution.

50. The State cannot defend such an arbitrary practice in the

garb of a policy decision. We have to keep in mind that these

were the posts of Assistant Professors for which a specialized

body like UGC has prescribed a process for the selections,

which includes appreciation of academic work of a candidate,

his/her performance in viva-voce, amongst others. Just a

simple Multiple-Choice Question based written exam cannot

be sufficient to check the suitability of such candidates. Even

if it is, then also, in the present case, the sudden

replacement of a time tested recruitment process with a new

process, was not only arbitrary but was done without

following the due procedure, which vitiates the entire

process. Even if we ignore the argument of political

45 expediency, we cannot but notice the executive hegemony in

reversing a decision of the Council of Ministers, without

reference to the said body. It also undermines the quality of

selection, since there was no comprehensive exercise to

examine the merit of a candidate. The written test did not

challenge the innovative faculty of a candidate. One was not

required to give an elaborate answer to a question as is done

in a subjective type of test. Instead, it was an objective type of

test in which the correct answer was to be given from

multiple-choice of answers. The elimination of the viva-voce,

which is such a vital component in the overall appreciation of

merit of a candidate, who has to teach in a higher education

institute, was another grave error.

51. All this goes on to show that the intention of the authorities

was to conclude the exercise as quickly as possible; which

though sought to be justified on grounds of expediency in

filling up the posts, undermines the selection by reason of no

qualitative assessment of the candidates carried out. The

learned Single Judge rightly observed that this approach

casts serious doubts on the fairness of the process and the

impartiality of the selectors, who were likely to be under

46 pressure to complete the exercise within the timeline,

regardless of the quality of the selections. The selection

process is further impaired by the inclusion of posts already

requisitioned to the Commission, which as per the

Regulations were required to be filled up by the Commission

and the apparent deviation from the UGC Guidelines which

were adopted by the State and required to be followed, in this

very selection, by the Council of Ministers.

52. The State and its instrumentalities have a duty and

responsibility to act fairly and reasonably in terms of the

mandate of Article 14 of the Constitution. Any decision taken

by the State must be reasoned, and not arbitrary. This Court

has consistently held that when a thing is done in a post-

haste manner, mala fides would be presumed, and further

that anything done in undue haste can also be termed as

arbitrary and cannot be condoned in law. We may refer here

to a few judgments of this Court which lay down this

proposition.

53. In Fuljit Kaur v. State of Punjab (2010) 11 SCC 455, this

Court held that any State action undertaken in a hasty

manner could be arbitrary State action cannot be condoned

in law. This is what was said by this Court:

47

“25. Before parting with the case, it may be pertinent to mention here that the allotment had been made to the appellant within 48 hours of submission of her application though in ordinary cases, it takes about a year. The appellant had further been favoured to pay the aforesaid provisional price of Rs. 93,000 in four instalments in two years, as is evident from the letter dated 8-4-1987. Making the allotment in such a hasty manner itself is arbitrary and unreasonable and is hit by Article 14 of the Constitution. This Court has consistently held that “when a thing is done in a post-haste manner, mala fides would be presumed”. Anything done in undue haste can also be termed as “arbitrary and cannot be condoned in law”. [Vide S.P. Kapoor (Dr.) v. State of H.P. [(1981) 4 SCC 716 : 1982 SCC (L&S) 14 : AIR 1981 SC 2181] , M.P. Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain [(1995) 1 SCC 638 : 1995 SCC (L&S) 364 : (1995) 29 ATC 159] , Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia [(2004) 2 SCC 65 : AIR 2004 SC 1159] and ZenitMataplast (P) Ltd. v. State of Maharashtra [(2009) 10 SCC 388] .] Thus, such an allotment in favour of the appellant is liable to be declared to have been made in arbitrary and unreasonable manner. However, we are not inclined to take such drastic steps as the appellant has developed the land subsequent to allotment.”

(Emphasis provided) 48

54. In Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.

Kamalia (2004) 2 SCC 65, this Court reiterated the above

principle while dealing with a case where the change in the

office-bearer had resulted in a hasty and arbitrary change in

the policy, which is also the case here. The relevant

observations in the said judgment are as follows:

“24. The impugned order was preceded by a direction of the Home Minister on 7-9-1996. A change in the opinion came into being only upon change in the holder of the office and that too within a few days. Not only had the matter not been admittedly placed on the agenda of the meeting dated 25-7-1997, the same was considered showing undue haste.

25. In S.P. Kapoor (Dr) v. State of H.P. [(1981) 4 SCC 716 : 1982 SCC (L&S) 14 : AIR 1981 SC 2181] this Court held that when a thing is done in a post-haste manner, mala fide would be presumed, stating: (SCC p. 739, para 33) “33. … The post-haste manner in which these things have been done on 3-11-1979 suggests that some higher-up was interested in pushing through the matter hastily when the Regular Secretary, Health and Family Welfare was on leave.”

(Emphasis provided)

55. In Zenit Mataplast (P) Ltd. v. State of Maharashtra (2009)

10 SCC 388, this Court laid down the general principle that

49 State action should be grounded in sound principles and

should not be unpredictable or without basis. This Court

noted as follows:

“27. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principles and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G. Jaisinghani v. Union of India [AIR 1967 SC 1427] , AIR p. 1434, para 14 and Haji T.M. Hassan Rawther v. Kerala Financial Corpn. [(1988) 1 SCC 166 :

AIR 1988 SC 157] ).”

(Emphasis provided)

56. In the present case there are multiple deficiencies, as stated

above. The giving away of a rigorous criteria laid down in the

UGC regulations with a single, multiple-choice question

based written test, and the complete elimination of the viva-

voce, all establish the arbitrary nature of the exercise which

50 cannot pass the test of reasonableness laid down under

Article 14 of the Constitution. Hence, the learned Single

Judge had rightly struck down the entire selection process,

and the Division Bench of the High Court erred in interfering

with that conclusion.

57. Lastly we need to state that it is a settled principle that when

the law prescribes a thing to be done in a particular manner,

then it should be done in that manner alone. [See:

Cherukuri Mani v. Chief Secretary, Govt of Andhra

Pradesh & Ors. (2015) 13 SCC 722, Dharmin Bai

Kashyap v. Babli Sahu (2023) 10 SCC 461, Nazir

Ahmed v. King-Emperor (LR 63 IA 372), Babu Verghese &

Ors. v. Bar Council of India & Ors. (1999) 3 SCC 422]

58. True, the State is entitled to change its policy, yet a sudden

change without valid reasons will always be seen with

suspicion. Even in cases where there is no statutory

prescription of any particular way of doing a thing, the

executive must observe the long-standing practice, and a

deviation from such a practice would require passing the

muster of reasonableness, which is a facet of Article 14 of the

Constitution. In this regard, this Court in Bannari Amman

Sugars Ltd. v. CTO (2005) 1 SCC 625 observed that:

51

“9. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose…”

In the case at hand, the State did not adhere to UGC

Regulations and took the posts out of the purview of the

Commission without following the procedure prescribed

under the law. And this was done suddenly without any

valid reason and thus, it would amount to arbitrariness and

cannot be sustained in the eyes of law. In Sivanandan C.T.

v. High Court of Kerala (2024) 3 SCC 799, the

Constitution Bench of this Court observed that:

52 “45. The underlying basis for the application of the doctrine of legitimate expectation has expanded and evolved to include the principles of good administration. Since citizens repose their trust in the State, the actions and policies of the State give rise to legitimate expectations that the State will adhere to its assurance or past practice by acting in a consistent, transparent, and predictable manner. The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being regarded as arbitrary and therefore violative of Article 14.”

59. As far back as in the year 1979, this Court in Ramana

Dayaram Shetty v. International Airport Authority of

India, (1979) 3 SCC 489, speaking through Justice PN

Bhagwati, had said that government jobs are also a kind of

wealth and the State cannot distribute or withhold such

wealth on the basis of arbitrary principles. The relevant

portion from the said case law is as follows:

“11. Today the Government in a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights, etc. The Government pours forth wealth, money, benefits, services,

53 contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth…..The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largesse in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an especially stimulating article on “The New Property” in 73 Yale Law Journal 733, “that Government action be based on standards that are not arbitrary or unauthorised”. The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith…

12…It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from

54 such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.”

In the present case, the State has miserably failed to

justify the departure from the standard norms of the

recruitment process. It has failed to give any valid reason for

not adopting the UGC Regulations and avoiding the Public

Service Commission in the recruitment in question.

Moreover, as discussed earlier, the reason for this departure

were narrow political and clearly arbitrary.

60. Before parting, we would like to observe that we are aware of

the fact that quashing of the entire recruitment process may

cause hardships for the selected candidates, but at the same

time, there is no equity in the favour of selected candidates

as challenge to the recruitment was made during the

pendency of the process and appointments were subject to

the Court orders. A gross illegality like the present

recruitment cannot be ignored.

55

61. Thus, considering the entire facts of the case, we allow these

appeals and set aside the order dated 23.09.2024 passed by

the Division Bench of the Punjab and Haryana High Court

and quash the entire recruitment and direct the State to

initiate the recruitment process as per the 2018 UGC

Regulations which are now in force in the State of Punjab.

62. Pending application(s), if any, stand(s) disposed of.

………………………………J. [SUDHANSHU DHULIA]

………………………………J. [K. VINOD CHANDRAN]

NEW DELHI;

JULY 14, 2025.

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