- (1.) By these proceedings which have been instituted in the form of a public interest litigation, a writ of quo warranto has been sought in regard to the appointment of the third respondent as Chairperson of the Uttar Pradesh Higher Education Services Commission, (Commission).
(2.) The third respondent was appointed in pursuance of a notification dated 15 July 2015. The petitioner seeks an appropriate direction or writ for setting aside the appointment of the third respondent on the ground that it was in violation of the provisions contained in Section 4(2)(b) of the Uttar Pradesh Higher Education Services Commission Act, 1980, Act (U.P. Act 16 of 1980). Section 4 of the Act provides for the composition of the Commission. Sub-section (1) contemplates that the Commission shall consist of Chairperson and Members. Members of the Commission shall be not less than two and not more than six. The appointment of the Chairperson and Members is made by the State Government. Section 4 provides as follows: "4. Composition of the Commission. - (1) The Commission shall consist of a Chairman and not less than two and not more than six other members to be appointed by the State Government. (2) No person shall be qualified for appointment as Chairman unless he- (a) is or has been a member of Uttar Pradesh Higher Judicial Service who has held the post of District Judge or any other post equivalent thereto; or (b) is or has been a member of the Indian Administrative Service who has held the post of a Secretary to the State Government or any other post under the State Government equivalent thereto; or (c) is or has been a Vice Chancellor of any University; or (d) is or has been a Professor in any University; or (e) is in the opinion of the State Government an eminent person having made valuable contribution in the field of education."
(3.) The controversy in the present case turns upon Section 4(2)(b). Section 4(2)(b) requires that to be eligible for appointment as a Chairperson, a person must either be or must have been a member of the Indian Administrative Service. The second requirement is that the person must have held the post of a Secretary to the State Government or any other post under the State Government equivalent thereto. The third respondent was promoted to the Indian Administrative Service on 28 November 2012 and for the purpose of seniority he was assigned the batch of 1999. By a notification dated 1 January 2015, he was promoted to the super time pay scale in pay band 4 of Rs.37400 - 67000 with the grade pay of Rs.10000/-. At the time when the notification was issued, the third respondent held the post of Collector and District Magistrate and was posted at Sitapur. The third respondent retired from service on 30 June 2015 as Collector. In anticipation of his retirement, a communication dated 12 June 2015 was issued by the Joint Secretary to the State Government in the Directorate of Pensions to facilitate the finalization of his pensionary benefits. The communication was addressed to the third respondent as 'IAS and Collector Sitapur'. Basically, two grounds form the substratum of the challenge to the appointment of the third respondent and for the relief which has been sought. The first ground is that the State Government has not followed any procedure in regard to the appointment of the third respondent. The second ground is that the appointment of the third respondent is contrary to the statutory provisions contained in Section 4(2)(b). Both the State Government and the third respondent have filed their counter affidavits in response to the writ petition. In the counter affidavit which has been filed by the State, it has been submitted that in the Indian Administrative Service, promotions are not made to the post of Secretary. Promotions are made, it is urged, in the super time scale under the Indian Administrative Service (Pay) Rules, 1954, as amended. Hence, it has been submitted that the pay scale, privileges and allowances of super time pay scale officers continue to be the same as of the post on which they are posted and, as such, these posts are equivalent to the post of Secretary under the State Government. The third respondent in his counter affidavit has submitted that: (i) A promotion is made in the Indian Administrative Services against a pay scale; (ii) A super time pay scale officer who is eligible for being posted as a Secretary and has been posted somewhere else shall not be treated as inferior to an officer who is posted against the post of Secretary to the State Government; (iii) The third respondent was working on the scale which is equivalent to the scale applicable to the post of Secretary; (iv) The post of Secretary is a super time scale post and where a super time scale officer is posted in any other post in the State Government that would be equivalent to the post of a Secretary; (v) A super time scale officer may be posted as a District Magistrate on account of the exigencies of service but this would not amount to an inferior posting and the post which is occupied "shall command upgradation on super time scale posts". We will deal with both the aspects of the challenge.;