JUDGMENT By the Court.—This batch of writ petitions has been filed by the petitioners for quashing the guidelines framed by the U.P. Higher Education Service Commissioner (in short, the Commission) for selection on the posts of Lecturers in Degree Colleges and Post Graduate Colleges in the State of U.P. in pursuance to Advertisement No. 41 of 2007, and further to direct the Commission to hold the interviews of the petitioners in the writ petitions. 2. The Commission published the Advertisement No. 41 in the year 2007 in national newspapers inviting applications for appointments on a large number of posts of Lecturers in Degree Colleges and Post Graduate Colleges in the State in different disciplines. The petitioners applied for the posts in their respective subjects. The Commission, in view of the large number of applications received for each post has prepared the guidelines for shortlisting the candidates for interview. These guidelines framed by the Commission in the year 2008 under Section 11 (a) of the U.P. Higher Education Service Commission Act, 1980, provided for award of screening index marks for ‘teaching experience’ as additional qualification for shortlisting of eligible candidates under Clause (i) of the Proviso to Sub-Regulation (1) of Regulation 6. The guidelines provided for 5 marks out of the total of 50 marks for experience. 3. The Division Bench hearing the writ petition Nos. 3336 of 2009, Gaurav Tripathi v. State of U.P. and others and Writ Petition No. 6733 of 2009, Dr. Abha Pandey v. State of U.P. and another, 2009(4) ADJ 648 (DB) : 2009(3) ESC 1486 (All) (DB), found that there is a conflict in the views taken by the Division Benches of the Court, to include ‘teaching experience’ for preliminary screening and shortlisting of candidates to be called for interview. In Writ Petition No. 52271 of 2000, Dr. Smt. Sushma Chauhan v. State of U.P., decided on 6.12.2000; Writ Petition No. 49621 of 2002, Dr. Rajendra Prasad Dubey v. U.P. Higher Education Service Commission, decided on 28.11.2002; Writ Petition No. 52020 of 2002, Smt. Upasana Sharma v. U.P. Higher Education Service Commission, decided on 4.12.2002, the guidelines were upheld by the Court. Smt. Sushma Chauhan v. State of U.P., decided on 6.12.2000; Writ Petition No. 49621 of 2002, Dr. Rajendra Prasad Dubey v. U.P. Higher Education Service Commission, decided on 28.11.2002; Writ Petition No. 52020 of 2002, Smt. Upasana Sharma v. U.P. Higher Education Service Commission, decided on 4.12.2002, the guidelines were upheld by the Court. The Division Bench disagreed with the reasons given in the aforesaid decisions for including ‘teaching experience’ as one of the factors for preliminary screening and shortlisting of the candidates and was of the opinion that in view of the Clause (i) of the Proviso to Sub-Regulation (1) of Regulation 6 of the Teachers Selection Regulation, or in view of the Regulation 3 of Teachers Selection Regulation it was not permissible for the Commission to provide in the guidelines ‘teaching experience’ as one of the factors for preliminary screening and shortlisting. The Division Bench referred 2009(4) ADJ 648 (DB) : 2009(3) ESC 1486 (All) (DB) the following question for consideration of Larger Bench : “Where in view of the provisions of the U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, particularly, Regulations 3 and 6 thereof, the Guide-lines framed by the U.P. Higher Education Services Commission in the year 2008 in regard to the selection pursuant to Advertisement No. 41 of 2007, wherein “teaching experience” has been provided as one of the factors for preliminary screening and short-listing the candidates to be called for interview for the post of teachers/ lecturers are valid.” 4. A Full Bench of three judges was constituted with the then Chief Justice presiding the Bench. It heard the matter at length and that by judgment dated 11th December, 2009 (Reported in 2010(1) ADJ 61 (FB)] the question was answered as follows : “ANSWER TO QUESTION REFERRED: In view of the above discussion our answer to the question referred is as under: In view of the provisions of the U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, particularly, Regulations 3 and 6 thereof, the Guide-lines framed by the U.P. Higher Education Services Commission in the year 2008 in regard to the selection pursuant to Advertisement No. 41 of 2007, wherein “teaching experience” has been provided as one of the factors for preliminary screening and short-listing the candidates to be called for interview for the post of teachers/ lecturers are invalid. The Writ Petitions will now be placed before the appropriate Division Bench with the above answer for consideration of the writ petitions. Dated:11th December, 2009 Sd/- (C.K. Prasad, C.J.) Sd/- (R.K. Agrawal, J.) Sd/- (S.P. Mehrotra, J.)” 5. The reasoning given by the Full Bench in answering the question referred to and discussed on point No. (ii), is that the academic qualifications for appointment as teachers was provided in the First Statute of the Universities made under the U.P. State Universities Act, 1973. The Statutes of the Agra University, University of Meerut, University of Kanpur, University of Kumayun, University of Bundelkhand and Gorakhpur University provided for ‘academic record’. They do not refer to consideration of ‘teaching experience’ for appointment to the post of Lecturers in the Degree Colleges and Post Graduate Colleges. The Full Bench held that ‘academic record’ and ‘teaching experience’ are two distinct concepts. The academic record is the record of academic achievements of a person. On the basis of academic record one enters into teaching profession and gets teaching experience, hence teaching experience cannot be treated as part of academic record. It was further held that the guidelines are framed by the Commission in exercise of its powers under Clause-A and Section 11 of the Service Commission Act, for supplementing the Regulations framed in exercise of powers under Section 31 of the Service Commission Act so as to provide details, where the Regulations are in general terms. Such guidelines cannot be inconsistent with and cannot run counter to or come in conflict with the Regulations. If the guidelines are inconsistent with the Regulations, then such guidelines are invalid to the extent of inconsistency. The Full Bench held in its opinion at page 53 : “Therefore, the impugned Guide-lines in-so-far as these provide for taking into account “teaching experience” as one of the factors for preliminary screening and short-listing for the post of teachers/ lecturers and allocate Screening Index Marks for the same, are invalid being inconsistent with clause (i) of the proviso to sub-regulation (1) of Regulation 6 of the Teachers Selection Regulations.” 6. On 15.4.2010 we heard the arguments, and prima facie found that on the answer given by the Full Bench the entire selections may not be held to be invalid. The Commission placed before us a detailed chart and the number of vacancies in the 35 subjects, in different categories of reservation. On 15.4.2010 we heard the arguments, and prima facie found that on the answer given by the Full Bench the entire selections may not be held to be invalid. The Commission placed before us a detailed chart and the number of vacancies in the 35 subjects, in different categories of reservation. It was submitted that against each vacancy eight candidates were called for interview, and that their number increased, wherever there were more than one candidate on the last mark secured by the candidates called for interview. If the marks given for ‘teaching experience’ for shortlisting the candidates, for calling them for interviews is excluded, only one of the selected candidate belonging to SC category in the entire selections in 35 subjects appointed in the subject of ‘Physics’ will be affected. 7. We have allowed the U.P. Higher Education Service Commission to give the details with regard to the number of petitioners in 20 writ petitions before us, who would have been called for interviews, if the marks of ‘teaching experience’ were excluded, to consider whether the petitioners before us should be given an opportunity to appear in the interviews and to find out whether they could be selected. Our order dated 15.4.2010 is quoted as below : “In this writ petition and 19 other connected writ petitions the petitioners have challenged the selections for appointment of Lecturers in the respective subjects by the U.P. Higher Education Service Commission on the ground that Regulations 3 and 6 of the Guidelines framed by the U.P. Higher Education Service Commission in the year 2008 in regard to selections pursuant to Advertisement No. 41 of 2007, providing for ‘teaching experience’ as one of the factors for preliminary screening and shortlisting as invalid and ultra vires Articles 14 and 16 of the Constitution of India and the provisions of the Act. By an order dated 10.4.2009 passed in Writ Petition No. 3326 of 2009, Gaurav Tripathi v. State of U.P. and Writ Petition No. 6733 of 2009, Dr. By an order dated 10.4.2009 passed in Writ Petition No. 3326 of 2009, Gaurav Tripathi v. State of U.P. and Writ Petition No. 6733 of 2009, Dr. Abha Pandey v. State of U.P., the Division Bench had referred the following questions to the Larger Bench : “Whether in view of the provisions of the U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, particularly, Regulations 3 and 6 thereof, the Guide-lines framed by the U.P. Higher Education Services Commission in the year 2008 in regard to the selection pursuant to advertisement No. 41 of 2007, wherein “teaching experience” has been provided as one of the factors for preliminary screening and short-listing the candidates to be called for interview for the post of teachers/ lecturers are valid”. The Full Bench by its judgment dated 11.12.2009 has answered the question as follows : “In view of the provisions of the U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, particularly, Regulations 3 and 6 thereof, the Guidelines framed by the U.P. Higher Education Services Commission in the year 2008 in regard to the selection pursuant to Advertisement No. 41 of 2007, wherein “teaching experience” has been provided as one of the factors for preliminary screening and short-listing the candidates to be called for interview for the post of teachers/ lecturers are invalid.” All these writ petitions have come back to us with the answer as above to be decided in accordance with law. It is submitted by Shri P.S. Baghel that on the points involved and framed in Para 20 and decided by Full Bench the entire selection falls and should be quashed. We have heard Shri P.S. Baghel and Smt. Arti Raje for the petitioners; Shri H.N. Singh for the U.P. Higher Education Service Commission and the other counsels appearing for the selected candidates. We are unable to appreciate the contention that on the answer given by the Full Bench the entire selections will be vitiated. The U.P. Higher Education Service Commission has placed before us a detailed chart and the number of vacancies in the 35 subjects in different categories of reservations. It is submitted that against each vacancy 8 candidates were called for interview and that the number increased as there were many candidates on the last mark secured by the candidates called for interviews. It is submitted that against each vacancy 8 candidates were called for interview and that the number increased as there were many candidates on the last mark secured by the candidates called for interviews. For example in Political Science as against 35 posts 295 (is more than the prescribed ratio) candidates were called for interviews in the ratio of 1 : 8. The Commission has thereafter given details of those candidates, who could find their place in interviews by adding their marks for experience and has given a positive statement before us that only one candidate belonging to SC appointed in Physics out of 36 vacancies (in all the 35 subjects) was actually given appointment after having received the benefit of marks given on the experience. The aforesaid details were available before the Full Bench. These details are not helpful in determining as to how many candidates were not called for interviews, if the marks for experience are excluded for all the candidates. The Full Bench has held that the principle of prospective overruling can be applied only by the Supreme Court under Article 141 of the Constitution of India. We are, therefore, required to consider the effect of the answers to the question referred to the Full Bench on the selection. Taking into account the enormity of the exercise taken by the Commission and the number of vacancies and the fact that there was no interim order except in Writ Petition No. 5232 of 2009 dated 13.2.2009 to the effect that newly impleaded respondent No. 4 was not permitted to join in the college, and the fact that 207 persons have been given appointment letters with the condition that their appointments are subject to the result of the writ petition, it is neither just nor proper to cancel the entire selections. The entire guidelines were not in question before the Court nor any other submission was found sufficient to cancel the selection. The observations made by the Full Bench in para 269 cannot be interpreted to mean that the benefit of experience in the interviews would vitiate the entire selection. In the present case we are faced with the situation where only fraction of candidates were called for interviews on the basis of award of marks for experience out of which only one of them got selected. In the present case we are faced with the situation where only fraction of candidates were called for interviews on the basis of award of marks for experience out of which only one of them got selected. It is, therefore, necessary for us to examine whether the selections are going to be affected by declaration that Regulation 3 and 6 providing for award of marks for taking experience for preliminary screening is invalid. On the facts and circumstances, we fix the date on which the reference was made to the Larger Bench i.e. 10.4.2009 as the cut off date. No other candidate will be given benefit of the judgment. Let the U.P. Higher Education Service Commission give us the details with regard to the number of petitioners in these 20 writ petitions, who would have been called for interviews, if the marks for taking experience were excluded. It is only, thereafter, we will consider whether the petitioners before us should be given an opportunity to the interviews to find out whether they could be selected. It is pointed out by Shri Ashok Khare and Shri R.N. Singh that in respect of some subjects no challenge was made by any candidate. Shri H.N. Singh informs us that 279 selected candidates out of 486 are awaiting appointments. We direct the Director of Education (Higher Education) U.P. to issue placement letters to the successful candidates (to be subject to the result of the pending writ petitions) in all those subjects in which the selections were not challenged in these writ petitions. In the other subjects in which there is challenge made by the petitioners in these writ petitions, the Director of Education (Higher Education) will withhold placement only for such number of recommendations by the Commission, which are equal to the number of petitioners in the subjects. The required affidavit will be filed by the U.P. Higher Education Service Commission by 26.4.2010. The petitioners may file reply by 3.5.2010. List on 3.5.2010.” 8. On 4.5.2010 while reserving the judgment we passed an order as follows : “We have heard Sri V.B.Upadhaya, Senior Advocate, Sri P.S.Baghel, Senior Advocate and Smt. Arti Raja for the petitioners. Sri R.V.Singh, Senior Advocate, Sri Ashok Khare, Senior Advocate, Sri A.R.Masoodi and Sri S.K.Rai appeared for the selected candidates. Sri H.N.Singh appears for the U.P. Higher Education Services Commission. On 4.5.2010 while reserving the judgment we passed an order as follows : “We have heard Sri V.B.Upadhaya, Senior Advocate, Sri P.S.Baghel, Senior Advocate and Smt. Arti Raja for the petitioners. Sri R.V.Singh, Senior Advocate, Sri Ashok Khare, Senior Advocate, Sri A.R.Masoodi and Sri S.K.Rai appeared for the selected candidates. Sri H.N.Singh appears for the U.P. Higher Education Services Commission. Sri V.K.Singh, Additional Advocate General appears for the State of U.P. Supplementary affidavits have been exchanged, giving details of the candidates who were called for interview. In the affidavit filed on behalf of the U.P. Higher Education Services Commission it is stated that even if the marks allocated for ‘teaching experience’, are excluded as held by the Full Bench, the petitioners could not have been called for interview. The judgment is reserved. Sri V.K.Singh, Additional Advocate General informs the Court that in terms of the order of the Court the Director, Higher Education has taken steps and that up till date 89 more placements have been made. We direct that until delivery of the judgment the Director, Higher Education may continue to make placements but that all such placements will be subject to the decision taken in these writ petitions.” 9. In the supplementary affidavit of Shri Krishna Kumar Gupta, Secretary, U.P. Higher Education Service Commission, Allahabad dated 25.4.2010 it is stated in paras 6, 7 and 8 as follows : “6. That total candidates in general category who have been called for interview giving the benefit of experience of permanent lecturer are seven in number whereas two have been called in O.B.C. Category and two in S.C./S.T. Category. Out of 7 candidates in general category giving benefit of experience 3 or such candidates would have been called for interview even if they have not been provided the benefit of experience of permanent lecturer but there are other 4 candidates in general category which could not have been called for interview and similarly in the case of 2 O.B.C. And 2 S.C./S.T. Who would not have been called for interview. 7. That had the four candidates of general category not been called for interview giving benefit of experience other four candidates whose screening index mark is 27.7. may have been called and not the petitioner whose screening index marks is 27.6. 7. That had the four candidates of general category not been called for interview giving benefit of experience other four candidates whose screening index mark is 27.7. may have been called and not the petitioner whose screening index marks is 27.6. In this connection true copy of detail charge showing the name of the candidates of General category, O.B.C., S.C./S.T. Category who have been called giving the benefit of experience for the interview, the detail of writ petitions filed in the subject of Political Science and screening index marks of the petitioners of all 4 writ petitions and detail of the candidates who would have been called had the candidates giving the benefit of experience have been called and they may not have been called if the experience benefit have not been given in Prapatra 1, 2 and 3 is being filed herewith and is marked as Annexure No. 1 to this affidavit. 8. That the candidates who could have been called in absence of the candidates who have been given the benefit of experience they have filed writ petition before this Hon’ble Court and they have challenged the selection in any manner and as such the right of the petitioner has not been affected in any manner as he was not entitled to be called for interview.” 10. Shri H.N. Singh appearing for the U.P. Higher Education Service Commission has also provided a detailed chart, giving the cut off marks of the petitioners and the other candidates, in the subjects in which they had applied separately in the categories of General, OBC and SC. The chart also gives the details of the number of candidates called after adding their marks of their teaching experience and the candidates, who could have been called, if the marks of teaching experience were excluded. The chart clearly demonstrates that the petitioners could not have been called for interview, even if the marks of those candidates, who were selected with the benefit of teaching experience in shortlisting are excluded. The chart also gives the names of the candidates, who could have been called for interview, if the marks awarded for teaching experience were excluded for shortlisting. The candidates, who could be called for interview, after excluding their marks for ‘teaching experience’ have not filed writ petitions challenging the guidelines or the selections. The chart also gives the names of the candidates, who could have been called for interview, if the marks awarded for teaching experience were excluded for shortlisting. The candidates, who could be called for interview, after excluding their marks for ‘teaching experience’ have not filed writ petitions challenging the guidelines or the selections. The chart signed and verified by the officers of the U.P. Higher Education Service Commission is taken on record. The petitioners have not disputed the allocation of marks given in the chart. 11. Shri V.K. Singh, Addl. Advocate General has provided to us the details of the steps taken by the Director, Higher Education till 2nd May, 2010 and the steps taken thereafter in compliance with the orders of the Court. He informs that prior to 2nd May, 2010, 225 placements were made in pursuant to the recommendation of the Commission and that thereafter 53 placements were made upto 2nd May. By 4.5.2010 out of remaining 255 placements, 89 placements were made by the Director, Higher Education. The instructions received by him are signed by Dr. Mian Jan, Director, Higher Education, U.P. Allahabad. These details given in the instructions are quoted as follows : “2. In compliance of Hon’ble Court’s aforesaid order the Director, Higher Education has taken following steps till 2nd May, 2010. i. Total number of subject in which select list has already been received from the Commission -28 ii. Total number of selected candidates -278 iii. Total number of seats not to be filled under the direction of the Hon’ble Court -23 iv. Total number of placement to be made -255 v. Upto 2nd May, 2010 number of placements made in following 13 subjects : a. Drawing Art b. Philosophy c. Music Vocal d. Music Tabla e. Music Sitar f. Physical Education g. Keet Vigyan h. Agricultural Economics i. Agricultural Chemistry j. Animal Husbandry and Dairy k. Plant Disease l. Sanskrit m. English .................... Total -53 .................... (These selected candidates of aforesaid subjects are those whose all the five options were not exhausted and placements were made as per their option and merit).” vi. Number of subjects in which placement of those candidates whose option would not be exhausted, shall be made within the next three days as per the procedure approved by Hon’ble Court in Writ Petition No. 17367 of 2009, Rama Shankar Rai v. State of U.P. and others -15 vii. Number of subjects in which placement of those candidates whose option would not be exhausted, shall be made within the next three days as per the procedure approved by Hon’ble Court in Writ Petition No. 17367 of 2009, Rama Shankar Rai v. State of U.P. and others -15 vii. For those candidates in all the subjects whose options have been exhausted or in lower merit then those whose options have already been exhausted by the candidates of higher merit shall be made through counseling on 17th and 18th May, 2010 as per Hon’ble Court’s direction in Rama Shankar Rai case. Dr. (Mian Jan) Director, Higher Education U.P., Allahabad” 12. Shri V.B. Upadhaya, Sr. Advocate, Shri P.S. Baghel, Sr. Advocate and Smt. Arti Arje appearing for the petitioners submit that the Court is not competent to make enquiries into the number of candidates, who were called for interview, after excluding their screening index marks for ‘teaching experience’ for shortlisting. The provisions of Regulation 3 and 6 of the U.P. Higher Education Service Commission (Procedure for Selection of Teachers) Regulation, 1983 and the guidelines framed by the Commission in the year 2008, wherein teaching experience has been provided as one of the factors for preliminary screening and short-screening were held to be invalid by the Three Judges’ Bench and thus the whole selections are to be set aside with directions to re-advertise the post or to call the candidates again, after excluding the marks of the ‘teaching experience’ for interviews. It is submitted by Shri V.B. Upadhyay and Shri P.S. Baghel that it is not open to us to make any further enquiries into the matter. The entire selections of necessity has to be set aside. They would further submit that the Three Judges’ Bench has apart from holding the guidelines invalid, did not agree with the submission that the doctrine of prospective overruling should be pressed into service and that equitable consideration should be called into aid to mold the relief. The argument to apply defacto doctrine was also rejected. 13. We have considered the opinion expressed in the judgment of the Three Hon’ble Judges carefully, and do not find any directions to set aside the entire selections. If the Three Judges’ Bench had so opined, it was not necessary to send the matter back to the Division Bench with answers to the referred question, for consideration of the writ petitions. We have considered the opinion expressed in the judgment of the Three Hon’ble Judges carefully, and do not find any directions to set aside the entire selections. If the Three Judges’ Bench had so opined, it was not necessary to send the matter back to the Division Bench with answers to the referred question, for consideration of the writ petitions. The Three Judges’ Bench has considered and answered all the questions of law. It did not have an occasion to pursue the material, which has been placed before us and which clearly demonstrates that the petitioners could not have been called for interview, even if the screening index marks for ‘teaching experience’ in respect of the candidates, who were called for interview in the prescribed ratio, were excluded. The candidates, who could be called for interview and was not selected have not chosen to challenge the selections. 14. Shri Baghel laid the great emphasis on the observations of the Court of the Full Bench that if the guidelines are invalid, the entire selections in pursuant to Advertisement No. 41 of 2007 was invalid. We find that the Three Judges’ Bench has categorically held that only one of the factors for preliminary screening and shortlisting namely ‘teaching experience’ in the guidelines framed by the Commission in the year 2008 is invalid. The entire guidelines were not declared to be invalid and thus if by exclusion of the beneficiaries of the screening index marks for ‘teaching experience’ the list of the candidates called for interview can be saved, except for only one candidate, the entire selections cannot be set aside. 15. The questions with regard to applicability of doctrine of prospective overruling; equitable considerations and applicability of defacto doctrine were decided with reference to the validity of the guidelines. The Three Judges’ Bench did not hold the entire guidelines to be invalid. The observation of the Court that if the entire guidelines are invalid, the selections would be invalid, is with reference to the arguments regarding the invalidity of the entire guidelines. 16. It was then submitted by Shri P.S. Baghel that the screening index marks awarded for research experience as Junior Research Fellow and Senior Research Fellow, was also not valid, in as much as such an experience can also not be counted, if the ‘teaching experience’ has to be excluded. 16. It was then submitted by Shri P.S. Baghel that the screening index marks awarded for research experience as Junior Research Fellow and Senior Research Fellow, was also not valid, in as much as such an experience can also not be counted, if the ‘teaching experience’ has to be excluded. The Three Judges’ Bench held that ‘teaching experience’ could not be counted and has to be excluded as it was not the essential qualification for the advertised post. The research experience as Junior Research Fellow and Senior Research Fellow, is not in the category of ‘teaching experience’. It is the experience gained by the candidate while pursuing research as JRF and SRF, which is one of the essential qualifications for appointment as Lecturer. The award of marks for such experience would fall in Column No. 3 of the screening index mark, providing for award of marks for NET/ SLAT/ M.Phil., M.D. and for Gold Medal/ Chancellor Medal for which one is provided. The marks for research experience are part of ‘academic record’ and not of ‘teaching experience’. 17. On the material placed before us by the U.P. Higher Education Service Commission, we are of the opinion that the petitioners in these writ petitions could not have been called for interview, even if the screening index marks for ‘teaching experience’ awarded to the candidates in their subjects and categories are excluded. The candidates, who could have been called for interview, after excluding their ‘teaching marks’, have not challenged the selections. There is only one candidate in SC category, who could be treated to be wrongly called for interview by adding his ‘teaching marks’ but that his selection in the subject of Physics, for which 8 seats were reserved for SC candidates has also not been challenged by any candidate in his category. 18. All the writ petitions are consequently dismissed. ————