Kerala High Court
Dr.Vijayalekshmi vs University Grants Commission
Author: A.K.Jayasankaran Nambiar
Bench: Antony Dominic, A.Hariprasad, P.B.Suresh Kumar, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY,THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937
WP(C).No. 29512 of 2012 (L)
----------------------------
PETITIONER(S):
--------------------------
DR.VIJAYALEKSHMI,
W/O.DR.BALACHANDRAN, ASSOCIATE PROFESSOR
CHEMISTRY DEPARTMENT, DEVASOM BOARD COLLEGE
THALAYOLA PARAMBU, KOTTAYAM DISTRICT
RESIDING AT IX/533-D, DIVINE VALLEY
RAJAGIRI VALLEY P.O., KAKKANAD, ERNAKULAM.
BY ADV. SRI.B.MOHANLAL
RESPONDENT(S):
----------------------------
1. UNIVERSITY GRANTS COMMISSION
BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002
REPRESENTED BY ITS SECRETARY.
2. THE TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY,NANTHANCODE P.O.
THIRUVANANTHAPURAM, PIN-695002.
3. THE UNIVERSITY OF KERALA
REPRESENTED B ITS REGISTRAR, PALAYAM P.O.
THIRUVANANTHAPURAM-695001.
4. THE MAHATMA GANDHI UNIVERSITY
REPRESENTED BY ITS REGISTRAR, P.D.HILLS P.O.
ATHIRAMPUZHA, KOTTAYAM-695121.
5. DR.S.SIVA KUMAR
PRINCIPAL, DEVASWOM BOARD COLLEGE, THALAYLAPARAMBU
KOTTAYAM-695131.
6. DR.K.P.BALACHANDRAN
PRINCIPAL, D.B.COLLEGE, PAPRUMALA P.O.
PATHANAMTHITTADISTRICT, PIN-689626.
7. DR.C.BHUVANACHANDRAN
PRINCIPAL, D.B.COLLEGE, SASTHAMKOTTA
KOLLAM-691002.
WPC.29512/12
2
8. JAYACHANDRAN
PRINCIPAL, SREE AYYAPPA COLLEGE, ERAMALLIKKARA
KOLLAM-691021.
R1 BY ADV. SRI.S.KRISHNAMOORTHY, CGC
R3 BY ADV. SRI.PAUL JACOB,SC,KERALA UTY.
R2 BY ADV. SRI.M.V.S.NAMBOOTHIRI,SC,TDB
R4 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY
R5,R 7 & 8 BY ADV. SRI.S.MUHAMMED HANEEFF
R5,R 7 & 8 BY ADV. SRI.R.KRISHNA KUMAR
R6 BY ADV. SRI.K.B.PRADEEP
R6 BY ADV. SRI.ASHOK SURESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-02-2016,
ALONG WITH WPC.29253/12 AND CONNECTED CASES, THE COURT ON 23.02.2016
DELIVERED THE FOLLOWING:
APPENDIX IN WPC.29512/12
PETITIONER(S) EXHIBITS
EXHIBIT P1: TRUE COPY OF THE APPROVAL ORDER NO.AC.F.IV-1-2627/81 DATED
ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER
EXHIBIT P2: TRUE COPY OF THE ORDER NO.AC.BV/2/530-03 DATED 9/3/2004 ISSUED
BY THE 4TH RESPONDENT TO THE PETITIONER
EXHIBIT P3: TRUE COPY OF THE PH.D CERTIFICATE OF THE PETITIONER
EXHIBIT P4: TRUE COPY OF THE RANK LIST ORDER ROC NO.12047/08/2011 DATED
02/05/2009
EXHIBIT P5: TRUE COPY OF THE JUDGMENT DATED 1/7/2011 IN WP(C)NO.15405/2009
OF THIS HON'BLE COURT.
EXHIBIT P6: TRUE COPY OF THE COMMON JUDGMENT DATED 8/8/2012 OF THIS
HON'BLE COURT.
EXHIBIT P7: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DATED 12/10/2012 THROUGH PROPER CHANNEL
EXHIBIT P8: TRUE COPY OF THE ORDER ROC NO.12047/2009/COLL. DATED 30/11/2012
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9: THE TRUE COPY OF THE APPLICATION DATED 20.3.2013 SUBMITTED BY
THE PETITIONER BEFORE THE PRESIDENT TRAVANCORE DEVASWOM BOARD
AND THE 2ND RESPONDENT AND ITS POSTAL RECEIPT.
EXHIBIT P10: THE TRUE COPY OF THE ORDER ROC NO.2924/13/COLL. DATED
30.3.2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P11: THE TRUE COPY OF THE RODER ROC NO.2924/13/COLL. DATED
23.4.2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P12: TRUE COPY OF THE PROPOSAL ROC NO.2924/13/COLL. DATED 23.4.2013
FORWARDED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R3(a): TRUE COPY OF THE ORDER NO.AC.F.III/2/58088/2012 DATED
17.12.2012.
EXHIBIT R3(b): TRUE COPY OF THE ORDER NO.AC.F.III/2/58189/2012 DATED
14.12.2012.
/TRUE COPY/
PS TO JUDGE
A.K.JAYASANKARAN NAMBIAR, J.
........................................................
W.P.(C).No.29512 of 2012, W.P.(C).No.29253 of 2012, W.P.(C).No.30711 of 2012, W.P.(C).No.15739 of 2013, W.P.(C).No.16220 of 2013 & W.P.(C).No.17148 of 2013 ......................................................... Dated this the 28th day of November, 2014 REFERENCE ORDER The issue involved in all these writ petitions is the same in that what is impugned is the selection conducted by the Travancore Devaswom Board, to the post of Principal in the various colleges falling under its management and affiliated to the Kerala University and the Mahatma Gandhi University (hereinafter referred to as 'the University for short). The selection to the post of Principal is made on the basis of seniority-cum-fitness from among qualified selection grade lecturers. One of the grounds on which the selection is challenged is that the Devaswom Board had, in respect of those colleges that were affiliated to the MG University, insisted on candidates possessing a PhD qualification for consideration to the post of Principal. In respect of those colleges that were affiliated to the Kerala University however, the said PhD qualification was not insisted upon. The differential stipulation of PhD qualification by the Devaswom Board was on account of the fact that, while the MG university had decided to adopt the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic W.P.(C).No.29512 /12 & con.cases 2 Staff in Universities and Colleges and Measures for the maintenance of Standards in Higher Education, 2010 (hereinafter referred to as 'the UGC Regulations' for short) that mandated the possession of a PhD qualification by those seeking appointment to the post of Principal in colleges affiliated to Universities, the Kerala University had chosen not to adopt the said Regulations during the relevant period. A question that arises for consideration in these cases, however, is whether, irrespective of any adoption by the Universities in question, the UGC Regulations of 2010, to the extent they stipulate a minimum qualification to be possessed by a candidate seeking promotion to the post of Principal, would automatically apply to the selection that was conducted by the Devaswom Board.
2. The Statutory Provisions under the Kerala University Regulations Relating to Qualifications of Teachers, which have been adopted by the MG University, and the UGC Regulations of 2010 that deal with the qualifications for the post of principal are as follows:
"KERALA UNIVERSITY REGULATIONS RELATING TO QUALIFICATIONS OF TEACHERS ***** PART III-TEACHERS OF NON-PROFESSIONAL COLLEGES W.P.(C).No.29512 /12 & con.cases 3 (1) Principal
(i) A first class Master's Degree or a Second Class Masters Degree with not less than 55% marks.
(ii)Appointment to the post of Principal shall be made from among the holders of post of Lecturers (Selection grade) or Readers in the college or all the colleges in the case of Corporate Management, Desirable: Research Degree or published work of high standard.
Note: In the case of teachers who are in permanent service as on the date of coming into force of this amendment, they shall be deemed to be qualified if they did possess the minimum qualifications, prescribed by the Regulation in force at the time of their appointment."
"UGC REGULATIONS 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, 2010 *****
3.0.0.RECRUITMENT AND QUALIFICATIONS ***** 3.2.0. The minimum qualifications required for the post of Assistant Professors, Associate Professors, Professors, Principals, Assistant Directors of Physical Education and Sports, Deputy Directors of Physical Education and Sports, Directors of Physical Education and Sports, Assistant Librarians, Deputy Librarians, Librarians will be those as prescribed by the UGC in these Regulations.
***** 4.0.0 DIRECT RECRUITMENT W.P.(C).No.29512 /12 & con.cases 4 ***** 4.2.0.PRINCIPAL:
(i) A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed ) by a recognized University.
(ii)A Ph.D. Degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance.
(iii) Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education.
(iv) A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges."
3. The brief facts in the various writ petitions are as follows:
In W.P.(C).15739 of 2013, the petitioner was appointed a lecturer in a Government college with effect from 12.10.1981. He was later appointed as a lecturer, in a college under the management of the Travancore Devaswom Board, with effect from 16.12.1981. The said appointment was approved by the MG University, to which the college was affiliated. He was placed in the senior scale with effect from 12.10.1989, and thereafter in the selection grade with effect from 12.10.1997. In the writ petition, W.P.(C).No.29512 /12 & con.cases 5 the petitioner is aggrieved by the appointment of Dr. P. Chandrasekhara Pillai as the Principal of DB College, Pampa, Parimala. It is his case that the said appointment was effected overlooking his seniority among Selection Grade Lecturers and for the sole reason that he did not possess a PhD qualification.
4. In W.P.(C).Nos.29253 of 2012 and 17148 of 2013, the petitioner joined service as a Junior Lecturer in DB College, Pampa, Perumala with effect from 27.06.1983. He was placed in the selection grade with effect from 27.06.1998. Thereafter, he obtained his M.Phil Degree in 2001 and his PhD in Economics in 2004. In the writ petition, he is aggrieved by the appointments effected to the post of Principal in the various colleges under the management of the Travancore Devaswom Board, and falling under the administrative jurisdiction of MG Universty and Kerala University. While it is his case that the appointments can be effected only of those selection grade lecturers who have a PhD qualification, as mandated by the UGC Regulations, 2010, it is also his case that the seniority of selection grade lecturers should be determined by maintaining a common seniority list of selection grade lecturers, coming under the administrative jurisdiction of both the Universities and the practice adopted by the Travancore Devaswom Board of determining seniority separately, based on the W.P.(C).No.29512 /12 & con.cases 6 University Area covered by Kerala University and MG University, is wrong. It is also contended that the Travancore Devaswom Board has not prepared any seniority list of selection grade lecturers in connection with the appointment of Principals to the various colleges under its management and, further, the petitioner's candidature was not considered despite a direction to that effect by the Court in the interim order dated 31.05.2013 in I.A.No.2714 of 2013 in W.P.(C).No.29253 of 2012. While in W.P.(C).No.29253 of 2012, the selection done vide order dated 30.11.2012 is impugned, in W.P.(C).No.17148 of 2013, it is the selection done vide order dated 31.05.2013 that is impugned.
5. In W.P.(C).Nos.30711 of 2012 and 16220 of 2013, the petitioner was appointed on regular basis as Lecturer with effect from 20.06.1991. He was, thereafter, granted Senior scale with effect from 24.07.1997 and Selection grade with effect from 24.03.2000. He obtained his PhD qualification in 2004 and was promoted as Reader on 31.03.2005. The post of Reader was subsequently re-designated as Associate Professor with effect from 01.01.2006. Pursuant to the notification dated 16.01.2009, he was promoted as Principal of Sree Ayyappa College, Eramalikkara, that was affiliated to the Kerala University, with effect from 04.05.2009. The said appointment was, however, set aside by this Court by W.P.(C).No.29512 /12 & con.cases 7 judgment dated 01.07.2011 in W.P.(C).No.15405 of 2009. Although the petitioner challenged the said judgment through W.A.No.975 of 2011, a Division Bench of this Court dismissed the same. An SLP filed before the Supreme Court was also dismissed. Thereafter, in the selection process that followed, the petitioner was not selected for the post of Principal and he was reverted to the post of Associate Professor. The selections effected by the respondent Travancore Devaswom Board vide orders dated 30.11.2012 and 31.05.2013 are impugned in W.P.(C).Nos.30711 of 2012 and 16220/2013, respectively. It is the specific case of the petitioner that the appointments to the post of Principal can be effected of only those selection grade lecturers who have a PhD qualification, as mandated by the UGC Regulations, 2010.
6. In W.P.(C).No.29512 of 2012, the petitioner was appointed as a Junior Lecturer with effect from 14.08.1990 in DB College, Mannar, affiliated to Kerala University. She was thereafter granted Senior grade and thereafter, selection grade with effect from 13.09.1998. She obtained her PhD in 1995 from Andhra University. In the selection done vide order dated 30.11.2012, she was not selected for the post of Principal. This led her to file the writ petition challenging the said selection. During the pendency of the writ petition, however, to a vacancy that arose with effect from W.P.(C).No.29512 /12 & con.cases 8 01.04.2013, she was appointed as Principal of DB College, Talayolaparambu, affiliated to the MG University. She has since retired on superannuation on 31.05.2013. She now confines her prayer in the writ petition to a direction to the authorities of the MG University to approve her appointment as Principal.
7. As already noticed, an issue that arises for consideration in these writ petitions is with regard to the effect of the UGC Regulations 2010 on the appointments to the post of Principal in Private colleges that are affiliated to the Kerala University or MG University. On an earlier occasion, a Division Bench of this Court in S.N.College v N. Raveendran - 2001 (3) KLT 938 - took the view that, while the UGC may make Regulations stipulating the eligibility requirements for persons to be appointed to teaching staff in the colleges affiliated to Universities which receive grant from it, the non-compliance with the said Regulations could only expose the University concerned to a possible forfeiture of its grant from the UGC. As far as the Universities were concerned, it was entirely for them to regulate their affairs and to decide whether or not to incorporate the eligibility requirements, prescribed by the UGC, in their statutes. It was held, therefore, that the UGC Scheme does not become applicable because of any statutory mandate making it obligatory for the University to follow the same. It was W.P.(C).No.29512 /12 & con.cases 9 for the State Government and the University authorities to take steps to carry out necessary amendments in the University Act and Statutes and issue orders accordingly and that until such amendments were carried out in the University Act and Statutes, the said eligibility requirements would not govern selections conducted by the managements of private colleges affiliated to the said University. The said decision follows the decision of the Supreme Court in University of Delhi v Raj Singh & Ors - AIR 1995 SC 336, where the Court took a similar view.
8. It is apparent from a reading of the said decisions that the issue was examined from the point of view of the power available to the Commission under the UGC Act, to disburse funds to Universities for any general or specified purpose consistent with the objects of the Act. This power was read along with the allied power under S. 14 of the Act that enabled the Commission to withhold grants to the University in case it failed to comply with any Regulation made under clauses (e), (f) or (g) of S. 26 of the Act. The decisions aforementioned proceed on the basis that the statutory prescription, as regards the consequences of non- compliance with the Regulations of the UGC, being limited to a withholding of grant to the University, there could not be any further consequence of a non-compliance with the said Regulations. W.P.(C).No.29512 /12 & con.cases 10 In my view, the said decisions do not consider a crucial aspect of the UGC Act namely, that under the said Act, the functions of the Commission are not limited to a mere funding of Universities but extend to other areas as well such as taking, in consultation with the Universities, all steps as it may think fit for the promotion and co-ordination of University Education and for the determination and maintenance of standards of teaching, examination and research in Universities. This is apparent from a reading of S. 12 of the UGC Act. Further, S. 26 (e) of the Act enables the UGC, to make Regulations, consistent with the Act and Rules made thereunder, 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 instructions. It is, in exercise of the said power that the University Grants Commission (Minimum Qualifications required for the appointment and career advancement of teachers in Universities and Institutions affiliated to it) Regulations 2010 were framed by the UGC. The issue to be considered, therefore, is whether the Regulations framed by the UGC would have a binding effect on Universities established or incorporated by a State Act, to which the Regulations state that they shall apply. For the answer, one has to look to the Constitution of India, to determine the scope and extent of the UGC Act and whether it could be seen as a W.P.(C).No.29512 /12 & con.cases 11 Central legislation that covers the field of "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" referred to in Entry 66 of List I of the Seventh Schedule to the Constitution of India. This is especially so because the Universities within the State are constituted in terms of State Legislations that trace their validity to the power of the State legislature to legislate in respect of the subjects enumerated in Entry 25 of List III of the Seventh Schedule to the Constitution of India that deals with "Education, including technical education, medical education and universities, subject to the provisions of Entries 63,64,65 and 66 of List I; vocational and technical training of labour".
9. Part XI of the Constitution of India deals with Relations between the Union and the States and Chapter I thereof, which covers Arts. 245 to 255, deals with Legislative Relations. In the context of legislations on the subject of Education, the Supreme Court in Gujarat University v Krishna Ranganath Mudholkar - AIR 1963 SC 703 observed as follows, while dealing with a contention with regard to alleged repugnancy between the provisions of a State enactment and a Central enactment in the matter of prescription of syllabi and courses of study as also the medium of instruction in educational institutions; W.P.(C).No.29512 /12 & con.cases 12
"(24) The State has the power to prescribe the syllabi and courses of study in the institutions named in Entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co-ordination of such standards either on an All India or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable. It is not possible to lay down any general test which would afford a solution for every question which might arise on this head. On the one hand, it is certainly within the province of the State Legislature to prescribe syllabi and courses of study and, of course, to indicate the medium or media of instruction.
On the other hand, it is also within the power of the Union to legislate in respect of media of instruction so as to ensure co-ordination and determination of standards, that is, to ensure maintenance or improvement of standards.
The fact that the Union has not legislated, or refrained from legislating to the full extent of its powers does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnacy and paramountacy which may have to be resolved on the application of the "doctrine of pith and substance" of the impugned enactment. The validity of the State legislation on University education and as regards the eduction in technical and scientific institutions not falling within Entry 64 of List I would have to be judged having regard to whether it impinges W.P.(C).No.29512 /12 & con.cases 13 on the field reserved for the Union under Entry 66. In other words, the validity of State legislation would depend upon whether it prejudicially affects co-ordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art.254(1); even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid".
10. Thus, if the prescription of a higher qualifications for appointment to the post of Principal in the UGC Regulations of 2010 is viewed as part of a central legislation on the subject of determination and maintenance of standards of teaching in Universities, then by virtue of it being a legislation under Entry 66 of List I of the VIIth Schedule to the Constitution, it would prevail over the provisions of the State legislation that prescribes lower qualifications for such appointments.
11. In the context of Medical and Technical Education, where the Indian Medical Council Act and the AICTE Act exist as central legislations that trace their validity to the power of Parliament to legislate in respect of the subjects enumerated in Entry 66 of List I, the Supreme Court had occasion to consider the interplay between W.P.(C).No.29512 /12 & con.cases 14 the said enactments and State legislations enacted in exercise of powers under Entry 25 of List III. In Dr. Preethi Sreevastava and Anr v State of M.P and Ors - 1999 (7) SCC 120, a Constitutional bench of the Supreme Court held as follows in the context of medical education at postgraduate level:
"55. We do not agree with this interpretation put on Section 20 of the Indian Medical Council Act, 1956. Section 20(1)(set out earlier) is in three parts. The first part provides that the Council may prescribe standards of postgraduate medical education for the guidance of universities. The second part of sub-section (1) says that the Council may advise universities in the matter of securing uniform standards for postgraduate medical education throughout. The last part of sub-section (1) enables the Central Government to constitute from amongst the members of the Council, a Postgraduate Medical Education Committee. The first part of sub-section (1) empowers the Council to prescribe standards of postgraduate medical education for the guidance of universities. Therefore, the Universities have to be guided by the standards prescribed by the Medical Council and must shape their programmes accordingly. The scheme of the Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council. For example, the medical qualifications granted by a university or a medical institution have to be recognised under the Indian Medical Council Act, 1956. Unless the qualifications are so recognised, the students who qualify will not be able to practise. Before granting such recognition, a power is given to the Medical Council under Section 16 to ask for information as to the courses of study and examinations. The W.P.(C).No.29512 /12 & con.cases 15 universities are bound to furnish the information so required by the Council. The Postgraduate Medical committee is also under Section 17, entitled to appoint Medical Inspectors to inspect any medical institution, college, hospital or other institution where medical education is given or to attend any examination held by any university or medical institution before recommending the medical qualification granted by that university or medical institution. Under Section 19, if a report of the committee is unsatisfactory the medical council may withdraw recognition granted to a medical qualification of any medical institution or university concerned in the manner provided in Section 19. Section 19-A enables the Council to prescribe minimum standards of medical education required for granting recognised medical qualifications other than postgraduate medical qualifications by the universities or medical institutions, while Section 20 gives a power to the Council to prescribe minimum standards of postgraduate medical education. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act. We, therefore, disagree with and overrule the finding given in Ajay Kumar Singh v. State of Bihar to the effect that the standards of postgraduate medical education prescribed by the Medical Council of India are merely directory and the universities are not bound to comply with the standards so prescribed."
Similarly, in State of Tamil Nadu v S.V.Bratheep - 2004 (4) SCC 513, it was held as follows in the context of technical education.
"Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an W.P.(C).No.29512 /12 & con.cases 16 exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in Exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by AICTE. It is, no doubt, true that AICTE prescribed two modes of admission - one is merely dependent on the qualifying examination and the other, dependent upon the marks obtained at the common entrance test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by AICTE, can it be said that it is in any manner adverse to the standards fixed by AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other had, if we proceed on the basis that the norms fixed by AICTE would allow admission only on the basis of the marks obtained in the qualifying examination, the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been W.P.(C).No.29512 /12 & con.cases 17 prescribed by AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr.Preeti Srivastava case. It is no doubt true, as noticed by this Court in Adhiyaman case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not a very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by a series of decisions of this Court including Dr.Preeti Srivastava case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.
In this view of the matter, we think these appeals deserve to be allowed in part and the order of the High Court stands modified to the extent of stating that it is permissible for the State Government to prescribe higher qualifications for purposes of admission to the engineering colleges than what had been prescribed by AICTE and what has been prescribed by the State and considered by us is not contrary to the same but is only complementary or supplementary to it."
12. It might also be apposite to refer to the decision of the Supreme Court in the case of Annamalai University rep. by Registrar v Secretary to Government, Information and W.P.(C).No.29512 /12 & con.cases 18 Tourism Department and Ors - 2009 (4) SCC 590, wherein in the context of a conflict between the UGC Act and the Open University Act, the binding nature of the provisions of the UGC Act to all Universities was stated in the following terms:
"40. The U.G.C. Act was enacted by Parliament in exercise of its power under Entry 66 of List I of the Seventh Schedule to the Constitution of India whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III thereof. The question of repugnancy of the provisions of the said two Acts, therefore, does not arise. It is true that the statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalise educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible.
41. Was the alternative system envisaged under the Open University Act in substitution of the formal system, is the question. In our opinion, in the matter of ensuring the standard of education, it is not. The distinction between a formal system and an informal system is in the mode and manner in which education is imparted. The UGC Act was enacted for effectuating co-ordination and determination of standards in universities. The purport and object for which it was enacted must be given full effect.
42. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of clauses (e),
(f), (g), and (h) of sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of W.P.(C).No.29512 /12 & con.cases 19 instructions are required to be defined by UGC.
The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC under Sections 26(1)(f) and 26 (1)(g) are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed hereinbefore that the functions of UGC are all- pervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12-A and clauses (a) and (c) of sub-section (2) thereof".
13. In University Grants Commission and Anr v Neha Anil Bobde (Gadekar) - 2013 (10) SCC 519, while dealing with the powers of the UGC to fix final qualifying criteria, for those who had obtained minimum marks in all papers of the UGC (NET) examination, before final declaration of the results, the Supreme Court observed as follows with regard to the powers of the UGC under the UGC Act.
"4. The U.G.C.Act, 1956 was enacted by Parliament under the provisions of Schedule VII List I Entry 66 to the Constitution, which entitled it to legislate in respect of "coordination and determination of standards in institutions for higher education or research and scientific and technical education".
5. For the said purpose, the Act authorised the Central Government to establish a commission, by name, the University Grants Commission, Chapter III of the Act deals with the powers and functions of the Commission. Section 12 states that it shall be the general duty of the Commission to take, in consultation with the universities or other bodies concerned, all such W.P.(C).No.29512 /12 & con.cases 20 steps as it may think fit for the promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research in universities, and for the purpose of performing its functions under the Act, the Commission has been bestowed with certain powers under the Act.
6. Clause (j) of Section 12 reads as under:
12. (j). perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions".
7. Section 26 (1) of the UGC Act confers powers on it to make regulations consistent with the Act and Rules, Clauses (e)(f) and (g) of Section 26 are of some relevance and are given below:-
"26. Power to make regulations:- (1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder -
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(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) defining the minimum standards of instruction for the grant of any degree by any W.P.(C).No.29512 /12 & con.cases 21 university;
(g) regulating the maintenance of standards and the coordination of work or facilities in universities",
8. UGC, in exercise of its powers conferred under clauses (e) and (g) of Section 26 (1) of the UGC Act and in supersession of the University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to It Regulations, 2000, issued the University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010. Regulation 2 states that the minimum qualifications for appointment and other service conditions of university and college teachers, librarians and Directors of Physical Education and Sports as a measure for the maintenance of standards in higher education, shall be as provided in the annexure to the above Regulations.
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22. We have elaborately referred to various statutory provisions which would clearly indicate that UGC as an expert body has been entrusted by the UGC Act the general duty to take such steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the universities. It is also duty -bound to perform such functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India. UGC has also got the power to define the qualification that should ordinarily be required for any person to be appointed to the teaching staff of the university and to regulate W.P.(C).No.29512 /12 & con.cases 22 the maintenance of standards and coordination of work and faculties in the universities".
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25. UGC, in exercise of its powers conferred under clauses (e) and (g) of Section 26 (1) of the UGC Act, issued the UGC (Minimum Qualification of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for Maintenance of Standards of Higher Education) Regulations, 2010. Regulation 3.3.1 of the Regulations specifically states that NET shall remain the minimum eligibility condition for recruitment and for appointment of Assistant Professors in the universities/colleges/institutions. Regulation 4.4.1 stipulates that before fulfilling the other prescribed qualifications, the candidates must have cleared the National eligibility Test conducted by UGC. Therefore, the power of UGC to prescribe, as it thinks fit, the qualifying criteria for maintenance of standards of teaching examination, etc. cannot be disputed, It is in exercise of the above statutory powers, UGC has issued the notification for holding NET on 24-6-2012.
31. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the university. For attaining the said standards, it is open to UGC to lay down any "qualifying criteria", which has a rational nexus to the object to be achieved, that is, for maintenance of standards of teaching, examination and research."
14. In the light of the judgments referred to above, I am of the view that the issue as to whether the minimum qualifications prescribed for appointment to the post of Principal under the UGC W.P.(C).No.29512 /12 & con.cases 23 Regulations 2010 would have to be read in to the provisions of the Kerala University Act and the MG University Act, inasmuch as the prescription is one of minimum qualifications that are found necessary to maintain standards of teaching in colleges affiliated to the Universities in question, requires to be examined by a Division Bench of this Court. Apart from the fact that the consequences, of taking a view contrary to the one taken earlier by the Division Bench of this Court in S.N.College v N. Raveendran - 2001 (3) KLT 938, would be far reaching in nature, it is my view that the said decision does not consider the issue in the legal perspective indicated in the later judgments of the Supreme Court referred to above.
I would therefore direct the Registry to place the matter before the learned Acting Chief Justice for orders in the matter.
A.K.JAYASANKARAN NAMBIAR JUDGE mns/