Doctrine Of Necessity Can Be Invoked To Prevent Administrative Exercise From Becoming Futile: Allahabad High Court

The Allahabad High Court has held that the doctrine of necessity is not limited to situations involving bias and can be invoked wherever an administrative exigency in the discharge of a public duty threatens to leave a vacuum and render an entire exercise futile.

Law permits certain things to be done as a matter of necessity, which it would otherwise not countenance on the touchstone of judicial propriety.

Applying the doctrine, the Court upheld the declaration of the select list for the post of Principal by the Chairman of the U.P. Secondary Education Services Selection Board sitting alone, every other Member of the Board having retired by the time the panel came to be published.

Justice Siddharth Nandan held,

“… the doctrine of necessity cannot be curtailed, to have its applicability only when there is a facet of bias; but it has also to be seen in a proper spectrum, when in cases of administrative exigencies and in performance of a public duty by any authority, a situation arises when there is a possibility of a vacuum and the entire administrative exercise to be rendered as a futile exercise, in order to save the process, the doctrine of necessity can very well be invoked”

Section 4 of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 provides that the Board shall consist of a chairman and ten members appointed by the State Government. Section 9(d) places the making of recommendations regarding the appointment of selected candidates within the powers and duties of the Board.

Regulation 4(6) of the U.P. Secondary Education Services Selection Board (Procedure and Conduct of Business) (First) Regulations, 1998 fixes the quorum for a meeting at one half of the total number of members for the time being.

The batch of writ petitions arose from Advertisement No. 3 of 2013, by which the Board invited applications region-wise for the posts of Principal and Headmaster. The last date for applications under the amended advertisement was 25.02.2014. The selection was held up by litigation for years. A corrigendum dated 01.01.2022 shifted the process online and required candidates to verify their particulars and record their institutional preferences on the portal by 08.01.2022.

A further corrigendum dated 02.01.2022 fixed the last date for submission of applications as the date on which eligibility would be judged. The second corrigendum was itself challenged and was approved in Mohan Singh v. State of UP. The interview schedule was notified on 22.02.2022 and the interviews were held in March 2022. The select list was published region-wise on 11.11.2022 and 13.11.2022.

The petitioners were senior-most lecturers of intermediate colleges officiating as Principals of their institutions. Their names are forwarded to the Board by the management under Rule 11(2)(b) of the U.P. Secondary Education Service Selection Board Rules, 1998, and the proviso to Rule 12(6) requires the two senior-most teachers of an institution to be called for interview in addition to the candidates shortlisted on quality point marks. All of them appeared at the interview and none was selected.

The respondents raised a preliminary objection that the petitioners, having taken part in the selection without demur, were estopped from attacking the procedure. Rejecting it, the Court held that the grievance rested on guidelines framed by the Commission which a Division Bench had approved in Indra Raj Singh Yadava v. UP Madhyamik Shiksha Sewa Ayog, and until that question was examined the petitioners could not be thrown out at the threshold.

On the validity of the declaration, the petitioners argued that the Board is a multi-member body which acts only through meetings, there can be no meeting of a single person, and that the declaration by the Chairman alone therefore breached the Act and the Regulations. They further argued that the doctrine of necessity is available only where bias disqualifies every authority competent to act.

The Commission and the private respondents relied on a co-ordinate Bench decision in Deepak Kumar Agarwal v. State of U.P., where the Chairman alone had acted at a time when no other Member stood appointed to the Board. They submitted that the Members had sat on the interview boards and that declaring the result on the basis of those interviews was a ministerial act.

The Court accepted that the quorum prescribed by the Regulations is one half of the total membership and that nothing in the Regulations contemplates a meeting with the Chairman as the only person present, but found no bar either.

“there exist no provision under the Statute or the Regulation, containing a negative clause, to prevent the Chairman alone to act as a Board when there exists no other Member appointed to the Board”

Had the doctrine not been invoked, the Court observed, the exercise begun in 2013 and sought to be concluded in 2022 would have come to nothing, the Members admittedly not being in place.

“the declaration of the result by the Chairman alone, cannot be said to be beyond the spectrum of the doctrine of necessity; and any interpretation to the contrary may hamper the vital functionary of the States”

The involvement of the Commission's officers in the exercise made no difference, the Court held, “merely the presence of ministerial and administrative staff, alone would not vitiate the entire exercise”

Further, the petitioners argued that the guidelines approved in Indra Raj Singh Yadava required five candidates from the top of the graded list for each institution to be interviewed along with the two senior-most teachers of that institution, the senior-most teacher standing selected if he topped that group of seven and the institution being thrown open to direct applicants only if he did not. In the selection under challenge no such pool was prepared; an overall merit list of all candidates was drawn up instead, with the result that few or no senior-most teachers found places in the select panels, and in the Aligarh division not one was selected.

The Commission replied that the guidelines had been framed to fill gaps in the Rules, 1983, which prescribed neither quality point marks nor interview criteria, and that the Rules, 1995 and the Rules, 1998 had since laid down a complete procedure, their validity having been upheld in Balak Singh Kushwaha v. State of U.P. and, up to the Supreme Court, in Balbir Kaur v. U.P. Secondary Education Services Selection Board.

The Court agreed and held that Rule 12(8) requires the panel for the post of Principal or Headmaster to be prepared institution-wise in order of merit, after giving due regard to the preference expressed by a candidate for a particular institution. It held that

“restricting the panel to the top five candidates in the graded list would be contrary to, and in contravention of, the mandate of Rule 12(8) of the Rules, 1998”

It rejected the apprehension that forwarding the names of the two senior-most teachers would be left meaningless if they were ranked on merit alone. It observed that their candidature is considered whether or not they exercise a preference for the institution, and nothing prevents them from applying as direct candidates against three preferences.

“..no preference can be accorded vis-a-vis the direct applicants, for the said preference contrary to the Rule 12 of the Rules, 1998 as claimed by the petitioners, who are amongst the two senior-most Lecturers and any interpretation to the contrary shall do violence to the statutory provision..”

Since the guidelines considered in Indra Raj Singh Yadava belonged to a selection governed by the Rules, 1983, and the present selection is governed by the Rules, 1998, the Court held that the challenge could not be sustained and that no case was made out for interference under Article 226 of the Constitution of India.

The Court recorded that the petitioners in the first of the three groups into which the batch was divided were not eligible on 25.02.2014, the last date for applications, and therefore had no cause of action to assail the select list, an objection their counsel did not refute. Those in the second group had attained the age of superannuation during the pendency of their petitions and, on the authorities cited for the respondents, had no vested right to continue in office or to be appointed thereafter.

Accordingly, the entire batch of petitions was dismissed, with the direction that the selection initiated in 2013 be brought to its logical end.