Jammu & Kashmir High Court - Srinagar Bench
Irfan Ahmad Bhat And Ors vs Skuast & Ors on 10 August, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
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HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no: Date of decision: 10.08.2018
SWP no.721/2017
MP no.01/2017 & IA no.01/2018
Irfan Ahmad Bhat & ors. v SKUAST & ors.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearance:
For Petitioners: Mr. Nissar Ahmad Bhat, Advocate.
For Respondent(s): Mr. M. Y. Bhat, Advocate, for 1 to 3;
Mr. S. A. Makroo, Advocate, for no.4; and Mr. Anees-ul-Islam, Advocate, for 5 to 12; and Mr. Moomin Khan, Advocate, for no.13.
___________________________________________________________________________________________
i) Whether to be approved for law journal: YES/No
ii) Whether to be approved for press/ media: YES/No
1. The petitioners have filed this petition with the prayers to quash advertisement notice no.01 of 2017 dated 31.03.2017 issued by the Sher- e-Kashmir University of Agricultural Sciences and Technology, Kashmir, (hereinafter the respondent-university) insofar as it prescribes Ph. D as the qualification for the post of Assistant Professor-cum-Junior Scientist in the Faculty of Fisheries. They have also prayed for issuance of certiorari to quash the Statute of the respondent-university, insofar as the same prescribe qualifications for the post of Assistant Professor. Consequentially, the petitioners have prayed for a mandamus to direct the respondents to re-advertise the posts of Assistant Professors in the Faculty of Fisheries by incorporating the qualifications for the said posts as per norms prescribed by the Indian Council for Agricultural Research and University Grants Commission.
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2. The petitioners are stated to have done Post-graduation / Master's in Fisheries Science and have qualified the National Eligibility Test (NET) conducted by the Agricultural Scientists Recruitment Board. Their case is that the qualifications for the post of Assistant Professor prescribed by the UGC is Master's with, at least, 55% marks (or an equivalent grading in point scale wherever grading system is followed) at the Master's level in the relevant subject or an equivalent degree from an Indian or Foreign University. Besides fulfilling the above qualification, it is stated, the candidates must have cleared NET for Lecturers conducted by the UGC / CSIR etc. It is averred that in terms of communication dated 09.03.2017, the Indian Council of Agricultural Research (Agricultural Research Division), New Delhi, read with the notification published by the UGC in the Gazette of India on 11.07.2017, the NET essentiality vis-a-vis the candidates who have done Ph. D prior to 11.07.2009 is exempted subject to certain conditions mentioned therein, and for other candidates the NET qualification is compulsory to be eligible for the post of Assistant Professor.
3. The grievance of the petitioners is that despite the aforesaid position, the respondent-university in the impugned advertisement notice no.01 of 2017 dated 13.03.2017 has prescribed such qualifications as do not commensurate with the qualifications prescribed by the UGC. The petitioners state that the qualifications mentioned by the respondent- university in the advertisement notice as well as those prescribed in the Statutes framed by the respondent-university, insofar as the same relate to the posts of Assistant Professor, are derogatory of the UGC norms. The petitioners are, therefore, aggrieved of the same and have challenged
3|Page the advertisement notice and the University Statutes having bearing on the matter on the grounds taken in the petition.
4. Respondents 1 to 3 in their reply have stated that the regulatory bodies like UGC, MCI etc. only lay down the minimum standards, and that the employer can set higher standards of qualification. It is averred that the qualification for the post of Lecturer recommended by the UGC, as pointed out by the petitioner, is the minimum eligibility criteria, and that the qualification fixed by the respondent-University for the post of Assistant Professor-cum-Junior Scientist is not less than the minimum eligibility suggested by the UGC. It is further stated that the qualifications prescribed in the advertisement notice strictly conform to the minimum qualifications prescribed under S. No.10 of Schedule-I to Chapter-II of the University Statutes. According to the respondents, the mandatory functions of teachers in the respondent-University warrants high standard eligibility requirement but, at the same time, the same should not be less than the norms suggested by the UGC or any other agency recognised for such purpose under law. It is also stated that the candidates possessing Ph. D are exempted from the requirement of NET. It is the stand of the respondent-University that the petitioners have no locus to challenge the University Statutes and seek change of these Statutes according to their personal suitability, especially so when such Statutes have been framed by the authorities prescribed in the Sher-e- Kashmir Universities of Agricultural Sciences and Technology Act, 1982 (SKUAST Act) and that the Statutes are not in derogation of UGC guidelines, but provide for a higher standard, which is permissible.
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5. In their reply, the UGC, respondent no.4, has stated that in terms of Clause 1.1.1 of UGC Regulations, 2010, for teachers in the Faculty of Agriculture and Veterinary Science, the norms/Regulations of Indian Council of Agricultural Research (ICAR) are applicable. The said respondent has quoted Clause 1.1.1 of the UGC Regulations, 2010, in their reply which would be referred to later in this judgment. It is stated in the reply that the contention of the petitioner is misplaced and that the writ petition is liable to be dismissed.
6. It may be mentioned here that respondents 5 to 13 were arrayed as party respondents in the petition in terms of order dated 10.11.2017 at their instance. They have adopted the reply filed on behalf of the respondent-University.
7. Heard learned counsel for the parties and considered the matter.
8. At the hearing of the case, the learned counsel for the petitioners raised several arguments. His first submission was with regard to the qualification obtained by petitioners at graduate level. According to him the graduate degree of Bachelors of Fisheries Science (B. F. Sc.) is a professional degree and cannot be equated with B. Sc in Biosciences or other Bachelors of Science. According to him, the other candidates who have submitted their forms and are Ph. D holders, like the private respondents, have simple B. Sc. to their credit and thus it is not possible that they could have obtained the qualification of M. F. Sc. According to the learned counsel a professional Master's degree cannot be obtained without a professional degree at graduate level. Once that is so, the Master's degree of private respondents cannot be equated to the Master's
5|Page degree of the petitioners and as such it is the petitioners alone who meet the eligibility criterion of Master's in Fisheries. He submitted that in order to defeat the rightful claim of the petitioners to the posts in question, on account of their valid professional Master's degree, the SKAUST advertised the posts with Ph. D as the minimum qualification, nullifying their superior Master's degrees. The learned counsel argued that the respondent-university could not have laid down the qualification of Ph. D contrary to the UGC Regulations of 2010. At the hearing the learned counsel, however, referred to, and read out, only the first two sub-clauses of Clause 4.4.1 of the Regulations, which deals with direct recruitment of candidates on the post of Assistant Professor, and submitted that since the qualifications prescribed by the Statue of SKAUST are violative of the minimum qualifications prescribed by UGC, the same need to be quashed and consequently, the advertisement notice, based on the said qualifications, too, is liable to be quashed. In this connection, the learned counsel further submitted that, as a matter of fact, the UGC Regulations of 2010 have been adopted by ICAR and the same is evident from the 2017 communication which endorses the petitioners' case that NET is essential for the post of Assistant Professor. He argued that exemption from NET essentiality is only for those candidates who have completed their Ph. D before 2009.
9. Referring to the UGC Act, 1956, the learned for the petitioner submitted that it has overriding effect over all other Central, State and other laws and Statutes. He submitted that it is more true in view of the fact that the Act is enacted under Entry 66 of the Concurrent list. Therefore, the eligibility criteria as prescribed by the Statues of
6|Page SKAUST framed under SKAUST Act being in contravention to the UGC Regulations framed under the UGC Act, the former has to give way to the latter, and on this ground the Statutes prescribing a higher qualification as well as the advertisement notice are liable to be quashed. In this connection, the learned counsel further submitted that the respondent-University comes under UGC. Therefore, it cannot be claimed by the respondent-University or, for that matter, by any of the respondents that SKUAST, by virtue of it having been enacted under a separate Act, has the power to prescribe higher qualification. The learned counsel in this connection cited and relied upon the judgment of the Supreme Court in Annamalai University v. Secy. to Govt., 2009 (4) SCC 590 paras 42 to 45.
10. Referring to the judgment of the Supreme Court in P. Suseela v. University Grants Commission, 2015 (8) SCC 129, the learned counsel submitted that NET has been laid down to be an essential qualification. He submitted that the judgment also states the reasons why NET is an essential qualification.
11. Mr. M. Y. Bhat, learned counsel for respondents 1 to 3, submitted that ICAR has adopted the UGC Regulations, 2010. However, by communication no.23(46)2010-EQR(Edn.) dated 26.12.2011 issued by the ICAR to the Vice Chancellors of all SAUs, CAUs, DUs and the Central Agricultural Universities with Agricultural Faculty, it was clarified that NET essentiality could be waived off for the candidates having Ph. D in accordance with 2009 UGC Regulations and then lately, vide communication no.Edn.23/46/2010-EQR(Pt) dated 09.03.2017, issued in partial modification of the earlier communication dated
7|Page 26.12.2011, the ICAR informed all these Vice Chancellors that the Competent Authority in ICAR, consequent to the notification of UGC published in the Gazette of India on 11.07.2016 for NET exemption to the candidates registered for Ph. D. programme prior to 11.07.2009, had approved that NET essentiality for recruitment to the post of Assistant Professor and equivalent in the disciplines in which NET was conducted, for the candidates registered for Ph. D. prior to 11.07.2009 shall be exempted subject to certain conditions mentioned therein. The learned counsel further submitted that the regulations give the floor and not the ceiling. SKAUST is obliged not to lay down a lower qualification and there is no bar to prescribe a higher qualification.
12. The learned counsels appearing on behalf of the private respondents adopted the arguments advanced by Mr. Bhat.
13. Going by the grievance raised by the petitioners and the averments made by them in their writ petition coupled with the arguments advanced at the hearing on their behalf, the real issue involved in the petition is whether for the post of Assistant Professor the respondent-University could prescribe qualifications higher than those mentioned in the minimum qualifications contained in the UGC Regulations 2010, as adopted by the ICAR? A similar question was involved in another writ petition, SWP no.1558/2017, titled Tanveer Ahmad Khan v. SKUAST & ors., which was heard in tandem with the present writ petition and decided on 09.08.2018. Adverting to the point in issue, the Court, in that petition, answered the above question in affirmative and dismissed the writ petition. I think it would be appropriate to quote hereunder the relevant paragraphs of that judgment:
8|Page "22. It is seen that the UGC Regulations, 2010, have been framed by the University Grants Commission in exercise of the powers conferred on it under clauses (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956 and in pursuance of the MHRD OM no.F.23-7/2008-IFD dated 23.10.2008 read with Ministry of Finance (Department of Expenditure) O. M. no.F.1-1/2008-IC dated 30.08.2008 and in terms of MHRD Notification no.1-32/2008-U.II/U.1(1) dated 31.12.2008. Sub-
section (1) of Section 26 of the Act is extracted hereunder for facility of reference:
'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,--
(a) ...;
(b) ...;
(c) ...;
(d)...;
(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....;
(h) ...;
(i) ...;
(j) ...' In exercise of the power thus vested in it, the University Grants Commission has made the Minimum Qualifications for Appointment of Teachers and Other
9|Page Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010, as amended from time to time.
Regulation 2 thereof says as under:
'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 these Regulations'.
(underlining supplied)
23. The Preamble of the annexure appended to the Regulations reads thus:
'These Regulations are issued for minimum qualifications for appointment and other service conditions of University and College Teachers, Librarians, Directors of Physical Education and Sports for the maintenance of standards in higher education and revision of pay scales.' (underlining supplied)
24. Two things are manifest from a plain reading of the aforesaid Preamble: first that these Regulations are issued for minimum qualifications for appointment of such teachers etc; and second, that such minimum qualifications are issued for maintenance of standards in higher education. The object of these Regulations, therefore, is not to lay down or prescribe the maximum qualifications, but to set a minimum slab below which no University or College in the country can prescribe any qualification and other requirements for appointment of teachers. It be seen that Section 26 of the Act gives to the UGC a power of defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the 10 | P a g e University. The word 'define' according to the Concise Oxford Dictionary, Tenth Edition (Indian) means '1. state or describe exactly the nature, scope or meaning of; give the meaning of (a word or phrase); 2. Mark out the limits of'. Obviously, in the context it has been used in the provision of the Act, it would not attract the first meaning; instead, the second meaning befits the object of the provision as is, ultimately, also carried by the Regulations so framed by the UGC, i.e., to mark out the boundaries or limits of. The UGC, however, as per its wisdom, has thought it advisable only to mark out the minimum limits of such qualifications, inasmuch as the Regulations specifically use the words 'minimum qualifications'.
25. It be further seen that Clause 3.2.0 under the heading Recruitment and Qualifications of these Regulations provides that the minimum qualifications required for the post of Assistant Professors, Associate Professors and Professors, etc. will be those as prescribed by the UGC in the Regulations. Then under Clause 4.0.0., 'Direct Recruitment' after the posts of Professor, Principals and Associate Professor, at sub- clause 4.4.0., occurs the post of Assistant Professor. In relation thereto, the following is provided:
'4.4.0 Assistant Professor 4.4.1 Arts, Humanities, Sciences, Social Sciences, Commerce, Education, Languages, Law, Journalism and Mass Communication i. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an 11 | P a g e equivalent degree from an accredited foreign university.
ii) Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET.
iii) Notwithstanding anything contained in sub-clauses (i) and (ii) to this Clause 4.4.1. candidates, who are or have been awarded a Ph. D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedures for Award of Ph. D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institution.
iv. NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted.' From a plain reading of sub-clause (i) of Clause 4.4.1, it become axiomatic that it does not, ipso facto, lay down Master's as the minimum qualification for appointment to the post of Assistant Professor; it only lays down the minimum percentage of marks at Master's level. This requirement of percentage of marks at Master's level is not relaxable even if a candidate possesses Ph. D. Now, it be borne in mind that clause (e) of Sub-Section (1) of Section 26 of the UGC Act gives the UGC the power to define the qualifications that should ordinarily be required of any 12 | P a g e person to be appointed to the teaching staff of the University. As is seen, sub-clause (i) of Clause 4.4.1., says 'good academic record as defined by the concerned university' and then, sets the lower limit of percentage of marks at Master's level, meaning thereby that the UGC, while fixing the minimum percentage of marks at Master's level, in its turn, has left it to the discretion of the university concerned to define "good academic record" and, in that relation, however, the UGC has itself only set the minimum requirement as to the percentage of marks at the Master's level at 55%, below which, obviously, no candidate would be eligible to apply for the post. So, the intention of the Regulations, clearly is, to leave it to the university concerned to fix not only the higher percentage of marks at the Master's level, but also to mark out the higher limit of educational qualification for a post. This clause, therefore, cannot be read in a sense that it prescribes Master's degree as the requisite qualification and/or that a university is bound to prescribe Masters as the requisite qualification for appointment on the post in question, or that it cannot prescribe any higher qualification. The Regulations make it abundantly clearly that the right to define the good academic record has been left to the discretion of the Universities, which is to set the boundaries or extent of qualifications. This, however, would not preclude a University to prescribe only Masters as the requisite qualification.
26. Then sub-clause (iii) of Clause 4.4.1 of the Regulations makes the things further clearer. It is seen that this sub-clause starts with a well understood word 'notwithstanding'. Ordinarily, the meaning and the intent of this clause can clearly be understood by the words following it, which are 'anything contained in sub-clauses (i) and (ii) to this Clause 4.4.1'. Thus, as literally as it can be read, the meaning and intent of this non-obstante clause is plain and clear, which is that whatever is said in sub-clauses (i) and (ii) has to 13 | P a g e be excluded. However, the sub-clause conspicuously further qualifies the non-obstante clause by saying that candidates, who are or have been awarded a Ph. D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedures for Award of Ph. D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institution. This part of the sentence does not say anything about the minimum qualification mentioned in sub-clause (i), though by implication of the non-obstante clause, the minimum standard mentioned in sub-clause (i) would automatically get excluded. This appears to be so because a candidate possessing Ph. D. would necessarily have the Master's degree at his credit and, therefore, the non-obstante part of the sub-clause (iii) would not exclude the minimum standard set in sub- clause (i) of the Regulation which is 55% marks at Master's level. Therefore, even if a candidate holds Ph. D. Degree, for appointment to the post of Assistant Professor, he is required to fulfill the requirement of such percentage of marks at Master's level. And the fact remains that sub-clause (iii) of Clause 4.4.1 speaks of what would be the requirement in case of a candidate possesses Ph. D., meaning thereby that the UGC has been conscious that it is leaving the discretion to define the good academic record to the universities and that it has visualized the possibility of a university prescribing Ph. D., as the required qualification for the post. Viewed thus, the answer to the question that this Court is faced with, which is whether the respondent-university could prescribe Ph D. as the qualification for appointment to the post of Assistant Professor, from the scheme of things, discussed above, has to be yes; because, in any case, the UGC Regulations only define the minimum standards. Therefore, for the sake of maintaining 14 | P a g e excellence and high quality in the standard of education, the respondent-university would be within its powers to prescribe a higher qualification, like Ph. D., if the University Statutes / Rules / Regulations or any law governing it, permit so, and if that be so, the candidates would be exempted from possessing the minimum eligibility condition of NET/SLET/SET.
27. It may also be mentioned here that, as is expressly stated in the Preamble, the object of the Regulations is to issue minimum qualifications for the maintenance of standards in higher education. In Dr. Preeti Srivastava v. State of M. P., (1999) 7 SCC 120, the Constitution Bench of the Supreme Court was faced with almost a similar question arising vis-à-vis the Medical Council of India Regulations. The issue before the Supreme Court was whether apart from providing reservation for admission to the postgraduate courses in Engineering and Medicine for special category candidates, it was open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission under the reserved category? The said issue had arisen in the background of developments in the States of U. P. and M. P. in respect of admission to postgraduate degree/diploma courses in medicine through the Postgraduate Medical Entrance Examination (PGMEE). The States had progressively reduced the minimum qualifying marks for reserved category candidates appearing in the PGMEE. The constitutionality of the Government order, ordinance and Act concerned were impugned before the Supreme Court. The Constitution Bench, per majority decision, held that while prescribing the criteria for admission to the institutions for higher education, including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I, and that, 'of course, there can be rules for admission which are consistent with or do not 15 | P a g e affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of Lit I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutions of higher education...' (emphasis supplied)
28. So, going by the above ratio laid down by the Constitution Bench of the Supreme Court, prescribing higher standards of qualifications than the minimum qualifications defined by the UGC, by a State or a University would be consistent with the object of the Regulations in question of maintenance of standards in higher education.
29. In the context of the same MCI Regulations, a Coordinate Bench of this Court in Dr. Rajiv Gupta v State of J&K, SWP no.188 of 2011, decided on 07.05.2013, has held that MCI Regulations have overriding effect and that the law, rules, regulations or government instructions made by the State Government on the subject are to give way to the MCI Regulations to the extent such law, rules and Government Instructions, regulations are in conflict with MCI Regulations, unless the State law, rules or regulations provide for higher standard of qualifications and experience as compared to Indian Medical Council Act or MCI Regulations. It would be appropriate to quote hereunder para 25 of the said judgment:
'25. It is therefore well settled that MCI Regulations have overriding effect and the law, rules, regulations or government instructions made by the State government on the subject, are to give way to the MCI 16 | P a g e Regulations to the extent such law, rules, and Government Instructions regulations are in conflict with MCI Regulations unless the State law, rules or regulations provide for higher standard of qualification and experience as compared to Indian Medical Council Act or MCI Regulations. We have to be alive to the object and purpose of Indian Medical Council Act 1956 and MCI Regulations. The purpose obviously is to provide high and uniform standards in all the medical institutions in India as the medical education because of its importance does not admit of any compromise on the standards in teaching, infrastructure, composition of courses / syllabi, etc. However, where the State law, rules or regulations prescribe higher standards than one prescribed under Indian Medical Council Act or MCI Regulations, such higher standard is to be followed as the Indian Medical Council Act 1956 and the MCI Regulations provide the floor and not the ceiling. The Regulations of 1998, as pointed out earlier, have been made by MCI in exercise of powers available under Section 33 Indian Medical Council Act 1956 with the previous sanction of the central government. The Regulations therefore have statutory flavour and are to be followed by the Medical Institutions imparting medical education.' (Emphasis supplied)
30. On the same analogy, therefore, even if it be assumed, for a moment, that the UGC Regulations have an overriding effect on the law, rules, regulations framed by the State or a university concerning the subject, yet, if such law, rules or regulations of the State or a university provide a higher standard of 17 | P a g e qualifications than the one prescribed by the UGC, the same cannot be said to be in conflict with the UGC Regulations; instead such rules or regulations would maintain the object of the UGC Regulations of maintaining standard in education and would, therefore, be permissible.
31. Coming to the law, Statutes and Regulations governing the respondent-University, it is the creation of the Sher-e-Kashmir University of Agricultural Sciences and Technology Act, 1982. Section 6 thereof deals with the functions and powers of the University and says that the University shall have the functions and powers delineated thereunder. Sub-section (11) thereof reads: 'to determine qualification for teachers and to recognize persons as qualified to give instructions or to carry out research and extension education in Agriculture'. Section 39 of the Act, under Chapter-VII captioned 'Statutes and Regulations' provides for Statutes. It says that subject to the provisions of the Act, the Statutes of the University may provide for any matter connected with the affairs of the University and shall, in particular, as provided thereunder, which, in terms of sub-section (4) includes classification, qualification and manner of appointment, terms and conditions of services and duties of teachers and other non-teaching staff of the University. Then Section 40 of the Act provides for how statutes are to be made. The University has made its Statues which stand notified vide notification no.06 of 1983 dated 10.11.1983.
32. Chapter-II of the Statutes so framed by the University, deals with appointment of officers and teachers of the University. Statute 6 deals with the method of recruitment and clause (b)(i) thereof says that the Vice Chancellor shall have a post advertised indicating therein the requisite qualifications to be passed by a candidate prescribed in the Schedule. In terms of clause (v) of the Statute 5, 'Schedule' has been defined to mean the Schedule annexed to the said 18 | P a g e Chapter. The Schedule-I to Chapter-II concerns the appointment of officers and teachers of the University.
The post of Assistant Professor/Jr. Scientist/ Subject Matter Specialists (SMS) figures at serial no.10 of the Schedule. Under column 3, captioned qualification for direct recruitment, it mentions as under:
'Essential
i) Master's degree with minimum 55% marks or equivalent grade in OGPA or equivalent postgraduate qualification in the concerned subject.
ii) Ph. D degree (with course work) in concerned subject as prescribed by the UGC Regulations 2009 (Ph. D is relaxable for candidates holding Post-graduation Degree in Veterinary Sciences / M. Tech degree in relevant field of Agricultural Engineering, alongwith one publication in NAAS rated referred Journal and NET).
iii) NET or at least two full length publications having a NAAS rating not less than 4, on the last date of submission of application.
OR
i) Master's degree with 55% marks or equivalent grade in OGPA or equivalent postgraduate qualification in the concerned subject.
ii) Ph. D degree (without course work)
in the concerned subject.
iii) NET
19 | P a g e
Note (1): NET essentiality for
recruitment to the post of Assistant
Professor and equivalent in the disciplines in which NET is conducted, for the candidates registered for Ph. D prior to July 11, 2009, shall be exempted subject to the conditions that:
a) Ph. D degree of the candidate is awarded in regular mode only;
b) Evaluation of the Ph. D thesis is done by at least two external examiners;
c) Open Ph. D viva-voce of the candidate has been conducted;
d) Candidate has published two research papers from his/her Ph. D work, out of which at least one must be in referred journal;
e) Candidate has made at least two presentations in conference/seminar, based on his/her Ph. D work.
(a) to (e) as above are to be certified by the Vice-Chancellor/Pro-Vice Chancellor / Dean (Academic Affairs) / Dean (University Instructions)....' It is thus seen that the respondent-university has in its Statutes provided a higher standard of qualifications than the one prescribed by the UGC in their Regulations, 2010, as amended from time to time, and these Statutes have been framed in exercise of the power vested in the University in terms of the relevant provision(s) of an Act of the State Legislature. The same qualifications have been provided by the respondent-University in the advertisement notice under challenge. Going by the ratio of the judgment of the Constitution Bench of the Supreme Court in Dr. Preeti 20 | P a g e Srivastava v. State of M. P. (supra), read with the decision of the Coordinate Bench of this Court in Dr. Rajiv Gupta v State of J&K (supra), the qualifications prescribed by the respondent-University cannot be said to be contrary to, or in conflict with, the UGC Regulations, 2010.
33. In view of all what has been discussed above, it is held that the qualifications mentioned in the UGC Regulations 2010, as amended from time to time, are the minimum qualifications below which no University or Institution can go, but at the same time, with a view to maintaining the excellence in the standard of education, a University or an institution can prescribe higher qualifications than such minimum qualifications mentioned in the UGC Regulations, 2010; provided that the law, Rules, Statutes or the Regulations framed by the State and/or the University/Institution provide for, or prescribe such higher qualifications."
14. In light of the above decision rendered by this Court in the other writ petition, I do not think there remains anything more to be considered and gone into in this case, except to advert to the two judgments of the Supreme Court cited and relied upon by the learned counsel for the petitioners in Annamalai University v. Secy. to Govt., 2009 (4) SCC 590 paras 42 to 45, and P. Suseela v. University Grants Commission, 2015 (8) SCC 129.
15. So far as Annamalai University v. Secy. to Govt. (supra) is concerned, the point and the subject of controversy involved therein is mentioned in the very first paragraph of that judgment. It would be advantageous to extract the para hereunder. It reads thus:
"Interpretation and application of the University Grants Commission (the Minimum Standards of Instruction for the Grant of the First Degree Through Non-Formal/Distance 21 | P a g e Education in the Faculties of Arts, Humanities, Fine Arts, Music, Social Science, Commerce and Sciences) Regulations, 1985 (for short 'the 1985 Regulations') framed by the University Grants Commission (for short 'UGC') in exercise of its powers conferred by clause (f) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956 (for short 'the UGC Act') vis-a-vis the provisions of the Indira Gandhi National Open University Act, 1985 (for short 'the Open University Act') is in question in threes appeals..."
The point in issue herein concerns the Regulations adopted by the ICAR relating to the minimum qualifications defined in the University Grants Commission Regulations of 2010, not with regard to the Minimum Standards of Instruction for the Grant of the First Degree Through Non- Formal/Distance Education in the Faculties of Arts, Humanities, Fine Arts, Music, Social Science, Commerce and Sciences Regulations, 1985. Even so, in para 42 of the judgment, the Supreme Court has clearly said that in the matter of higher education, it is necessary to maintain minimum standard. The case of the respondent-University is that they have not framed any Statute or prescribed any qualifications below or less than the minimum standard adopted by the ICAR; instead, they have prescribed higher qualifications to maintain high quality education in the university. In that view of the matter, the judgment is not attracted to the facts of the case.
16. So far as the judgment of the Supreme Court in P. Suseela v. University Grants Commission (supra) is concerned, it would suffice to say that therein the question raised related to the powers of the University Grants Commission in so far as the minimum qualifications defined by the UGC were challenged on the ground of violation of 22 | P a g e fundamental rights of the petitioners therein. In the case at hand, the university-respondent states that it is abiding by the minimum qualifications adopted by the ICAR. That apart, it is clearly stated in clause 1.1.1 of the UGC Regulations 2010 that for teachers in the Faculties of Agriculture and Veterinary Science, the norms/Regulations of Indian Council of Agricultural Research shall apply. It is true that the ICAR has adopted the UGC Regulations, but that fact by itself would not attract any annunciation made by the Supreme Court vis-à-vis the powers of UGC to the powers of ICAR. Furthermore, strictly speaking the judgment supports the stand taken by the respondent-University, insofar as in para 21 of the judgment, while referring to an earlier judgment in UGC v. Sadhana Chaudhary, (1996) 10 SCC 536, the Supreme Court has said that a legitimate expectation must always yield to the larger public interest and that the larger public interest is nothing less than having highly qualified Assistant Professors to teach in UGC institutions. Para 21 of the judgment is quoted hereunder:
"21. In University Grants Commission v. Sadhana Chaudhary, (1996) 10 SCC, 536, it is true that in paragraph 22, some of the very appellants before us are referred to as having a legitimate expectation in the matter of appointment to the post of Lecturer in Universities/Colleges, but that case would have no direct application here. There a challenge was made to exemptions granted at that time to Ph.D. holders and M. Phil. degree holders. It was found that such exemption had a rational relation to the object sought to be achieved at that point of time, being based on an intelligible differentia. An Article 14 challenge to the said exemption was, therefore, repelled. Even assuming that the said judgment would continue to apply even after the 2009 Regulations, a legitimate expectation must always yield to the larger public interest. The larger public interest in the present case is
23 | P a g e nothing less than having highly qualified Assistant Professors to teach in UGC Institutions. Even if, therefore, the private appellants before us had a legitimate expectation that given the fact that the UGC granted them an exemption from the NET and continued to state that such exemption should continue to be granted even after the Government direction of 12th November, 2008 would have to yield to the larger public interest of selection of the most meritorious among candidates to teach in Institutions governed by the UGC Act."
(emphasis added) In light of the above, the judgment does not help the petitioners.
17. Lastly, the petitioners have sought a writ of certiorari for quashing of the Statutes framed by the respondent-University. Admittedly, the Statutes have been framed by the respondent-University in exercise of the powers conferred on it by Section 6 of the SKUAST Act, and, therefore, the same constitute subordinate legislation. Section 39 of the SKUAST Act also confers such power on the respondent-University. It would suffice to say that subordinate legislations cannot be quashed by issue of a writ of certiorari. A subordinate legislation can, at best, be declared as ultra vires the Constitution or the enabling enactment and struck down accordingly. It is not the case of the petitioners that the impugned Statutes, which have been framed by the respondent- university in exercise of the power conferred on it by the relevant provision of the SKUAST Act, are ultra vires the Constitution or the enabling enactment on any count, whatsoever. Therefore, the relief sought cannot be granted.
18. For all what has been said and discussed above, the grievance sought to be raised in this petition is held to be untenable. The petition, 24 | P a g e therefore, deserves to be dismissed and is, as such, hereby dismissed together with the connected miscellaneous petition(s), vacating the interim direction, if any, subsisting as on date.
19. No order as to costs.
(Ali Mohammad Magrey) Judge Srinagar, 10.08.2018 Syed Ayaz, Secretary.