Delhi High Court
All India Researchers??? Coordination ... vs Union Of India & Ors. on 6 December, 2010
Author: Manmohan
Bench: Chief Justice, Manmohan
#33&34
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
33.
+ W.P.(C) 13689/2009
ALL INDIA RESEARCHERS‟ COORDINATION
COMMITTEE & ORS. ..... Petitioners
Through: Mr. Amit Kumar, Advocate with
Mr. Ashish Kumar, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Neeraj Chaudhari, Mr. Khalid
Arshad and Mr. Bhagat Singh,
Advocates for UOI.
Mr. Amitesh Kumar, Advocate for
UGC.
Mr. Mohinder J.S. Rupal, Advocate
with Mr. Sonam Gupta, Advocate
for respondent No.3.
AND
34.
+ W.P.(C) 2780/2010
SARIKA CHAUDHARY ..... Petitioner
Through: Ms. Sonia Mathur, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. B.V. Niren, Advocate for UOI.
Ms. Maninder Acharya, Advocate
for University of Delhi.
Mr. Amitesh Kumar, Advocate for
UGC.
Reserved on: 23rd September, 2010
% Date of Decision: 06th December, 2010
W.Ps.(C) 13689/2009 & 2780/2010 Page 1 of 25
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
MANMOHAN, J :
1. Present writ petitions have been filed under Article 226 of the Constitution of India challenging the constitutional validity of the Regulations dated 11th July, 2009 framed by the University Grants Commission (in short, "UGC") namely, UGC (Minimum qualifications required for the appointment and career advancement of Teachers in Universities and Institutions affiliated to it) (3rd Amendment), Regulation, 2009 ( in short, "Regulations 2009"). The relevant portion of the impugned Regulations, 2009 reads as under:-
"NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions.
Provided, however, that candidates, who are or have been awarded Ph.D. Degree in compliance of the "University Grants Commission (minimum standards and procedure for award of Ph.D Degree), Regulation 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions.
2. The petitioners are aggrieved by the aforesaid Regulations, 2009 inasmuch as it does away with the exemption from compulsory W.Ps.(C) 13689/2009 & 2780/2010 Page 2 of 25 NET/SLET examination for appointment as Lecturers in Universities. The said exemption was earlier provided by the UGC vide UGC (Minimum qualifications required for the appointment and career advancement of Teachers in Universities and Institutions affiliated to it) (2nd Amendment), Regulations, 2006 (hereinafter referred to as, "Regulations 2006"). The relevant portion of Regulations 2006 is as under:-
"NET shall remain the compulsory requirement for appointment as Lecturer for those with Post Graduate Degree. However, the candidates having Ph.D. degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phil Degree in the concerned subject are exempted from NET for UG level teaching only."
3. Mr. Amit Kumar, learned counsel for the petitioners submitted that the power to frame Regulations had been exclusively conferred under the UGC Act, 1956 (hereinafter referred to as, "Act") on the UGC and the Union of India (for short "UOI") could not have interfered with the said power. According to him, the impugned Regulations framed by the UGC pursuant to direction by UOI vide letter dated 12th November, 2008 was abdication of statutory power by the UGC. It was submitted by the learned counsel that when a particular act is prescribed to be done in a particular manner under any statute, then the act must be done in that manner or not at all. To emphasise the said submission, reliance was placed on the decisions of the Supreme Court in Rao Shiv Bahadur Singh Vs. State of U.P. AIR 1954 SC 322; Deep Chand Vs. State of Rajasthan AIR 1961 SC 1527 W.Ps.(C) 13689/2009 & 2780/2010 Page 3 of 25 and State of U.P. Vs. Singhara Singh AIR 1964 SC 358 wherein the rule laid down in Nazir Ahmed Vs. King Emperor AIR 1936 PC 253 was upheld that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
4. Mr. Amit Kumar further submitted that the direction given by the Government to the UGC to bring out the said Regulations, 2009 could not have been upheld in law as the exercise of power conferred on UOI under Section 20 of the Act was a general provision, which could not override Section 26(1) of the Act which was a special provision. It was submitted that it is well settled law that between special clause and general clause in the same statute, the special clause will prevail. The learned counsel for petitioners relied on a decision of Supreme Court in J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. The State of Uttar Pradesh and Ors. 1961 (3) SCR 0185 wherein it was stated that the rule is that whenever there is a particular enactment and a general enactment in the same statute, the latter taken in its most comprehensive sense would overrule the former.
5. Mr. Amit Kumar further submitted that it had been the consistent policy of UGC and the Government to grant exemption to those who had obtained M.Phil and Ph.D degree before the cut-off date. A similar exemption was also provided by Regulations 2006 which had given rise to legitimate expectation that a person having M.Phil/ Ph.D degree would be eligible for the post of Lecturer without anything more and created an impression that they would not have to pass NET. It was W.Ps.(C) 13689/2009 & 2780/2010 Page 4 of 25 submitted that in view of the exemptions provided by earlier Regulations, a vested right had accrued in favour of petitioners for consideration for appointment to the post of Lecturer. However, with the introduction of the impugned amendment, the said right had been extinguished and M.Phil and Ph.D degrees holders would now have to pass NET examination to become eligible for the post of Lecturer.
6. It was also submitted by Mr. Kumar that the direction of the Government of India to reject the recommendations of UGC was an arbitrary exercise of power as the reason given by the Ministry of Human Resource and Development for making NET mandatory was that there is a wide variation in the procedure adopted by the Universities in awarding M.Phil and P.hd Degrees. The said reason, according to Mr. Kumar, was legally untenable as all the Universities in India were regularly checked by UGC for their academic standards.
7. Mr. Amit Kumar lastly submitted that Section 25(3) of the UGC Act categorically stated that no retrospective rule can be framed by UGC which would prejudicially affect the interest of any person to whom such rule may be applicable. Therefore, according to him, the impugned amendment is violative of Section 25(3) of the Act and liable to be declared void.
8. Mr. Neeraj Chaudhury, learned counsel for the Union of India submitted that the Central Government has been empowered under Section 20(1) of the Act to give directions to UGC on questions of policy relating to national purpose. Hence, it is within the domain of W.Ps.(C) 13689/2009 & 2780/2010 Page 5 of 25 the Central Government to issue directions to UGC to frame regulations to give effect to the improvement of standards in teaching by prescribing an entry level qualification. According to him, Regulations 2009 were issued by UGC to comply with the intent of the policy directive dated 12th November, 2008 issued by the Central Government.
9. Mr. Chaudhari further submitted that UGC had been entrusted with the duty of maintenance of standards of teaching, examination and research in universities. UGC on the basis of recommendations made by Professor R.C. Mehrotra Committee and the Vice Chancellor‟s conference held in 1989 had decided to hold a comprehensive National Test to determine the eligibility for Lecturer with reference to a common yardstick. The Supreme Court in University of Delhi Vs. Raj Singh, (1994) Suppl. 3 SCC 516 had observed that the purpose of conducting a test like NET was to categorically evaluate the standard of candidates for the post of Lecturer, where two post graduate applicants were available from different universities.
10. Mr. Chaudhari also submitted that it was necessary to have a test to judge the abilities and standard of innumerable candidates who wish and aspire to secure the job of a Lecturer in colleges and universities. Keeping this objective in mind, the retention of NET/SLET as a compulsory requirement was insisted upon for appointment to the post of Lecturer for both undergraduate and post graduate level, irrespective of the candidate possessing M.Phil or Ph.D degree. It was submitted by Mr. Chaudhari that the NET/SLET is not an examination for degree but W.Ps.(C) 13689/2009 & 2780/2010 Page 6 of 25 an eligibility test to determine the merit in an objective manner and the Regulations, 2009 were issued in this background.
11. Mr. Chaudhari further submitted that as the salaries and other allowances for teachers were higher than those of the Group „A‟ civil servants, the Pay Review Committee had recommended that in order to justify the high salaries paid to the teachers in colleges and universities, the eligibility condition should be tightened and qualifications should be of a high order and the persons to be employed as teachers be assessed by means of an objective mechanism in the form of NET/SLET.
12. Mr. Amitesh Kumar, learned counsel for UGC submitted that UGC had been statutorily entrusted with the duty to take such steps as it may think fit for promotion and coordination of university education and for the determination and maintenance of standards of teaching, examinations and research in universities. Section 26 of the Act empowered the UGC to make regulations consistent with the Act amongst others for defining the qualifications that should ordinarily be required by any person to be appointed to the teaching staff of the university.
13. It was submitted by Mr. Amitesh Kumar that the Ministry of Human Resource and Development, Government of India had constituted a Committee to review the NET examination and the said Committee in its report had recommended as under:
"NET should be retained as a compulsory requirement for appointment of lecturer for both undergraduate and post W.Ps.(C) 13689/2009 & 2780/2010 Page 7 of 25 graduate level, irrespective of candidate possessing M.Phil and Ph.D. degree."
14. Consequently, according to him, the Ministry of Human Resource and Development, Government of India had issued an order dated 12th November, 2008 to UGC under Section 20(1) of the Act to take steps for implementing the recommendations of the report. It was further submitted that under Section 20 of the Act the Central Government was empowered to issue directions to UGC on questions of policy relating to national purposes and such directions are binding on UGC. In pursuance of the policy direction issued by the Government of India, the UGC in exercise of its power conferred by Section 26(1)(e) and (g) read with Section 14 of the Act had framed the Regulations, 2009.
15. Mr. Amitesh Kumar also submitted that the UGC‟s power to frame Regulations under Section 26 was subject to the same being consistent with the Act and rules made thereunder by the Central Government under Section 25.
16. Further, it was submitted that UGC had framed the impugned Regulations, 2009 in exercise of its power conferred by Section 26(1)(e) and (g) read with Section 14 of the Act. Hence, the contention that the UGC has not acted in the manner it is required to act under the provisions of the Act, is wholly unfounded.
17. He lastly submitted that a similar petition challenging the vires of the impugned Regulations 2009 had been dismissed on 26 th April, 2010 W.Ps.(C) 13689/2009 & 2780/2010 Page 8 of 25 by the Madras High Court in G. Sinthaiah Vs. University Grants Commission, W.P. 7116/2010.
18. Having heard the rival contentions and on a perusal of the record, we are of the opinion that UGC was established by an Act of Parliament passed by virtue of power conferred under Entry 66 List 1, VII Schedule of the Constitution of India. The said Entry gives power to the Union of India to ensure that required standard of higher education in the country are achieved and maintained at the highest level. It is the responsibility of the Central Government to coordinate and determine the standards of higher education. This power includes the power to evaluate, harmonize and improve educational standards. In pursuance of the above objective, the Parliament enacted the Act.
19. The Union of India is empowered by Section 20(1) of the Act to give policy directions in relation to national purpose. Section 20 of the Act is reproduced hereinunder :-
"20. (1) In the discharge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government.
(2) If any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final."
(emphasis supplied) W.Ps.(C) 13689/2009 & 2780/2010 Page 9 of 25
20. It is pertinent to mention that UGC made the NET examination compulsory for appointment to the post of teachers and lecturers in the universities for the first time by way of Regulations in 1991. The 1991 Regulations were based on the recommendations of Expert Committees appointed by the Union of India from time to time for evaluation, upgradation and maintenance of the standards of higher education in the country.
21. The Union of India constituted a Review Committee on NET under the Chairmanship of Prof. Bhalchandra Mungekar, Member Planning Commission (Education). The said Committee in its final report recommended as under:-
"Based on the intensive and extensive deliberations throughout the country and near unanimity among academics scientists, administrators, Vice Chancellors and potential candidates, most of whom would be teachers and particularly in view of the floodgates being opened for the registration of M.Phil and Ph.D. degrees resulting only into a further deterioration of the quality of these degrees, and consequently making easy entry of the teaching profession of such degree holders, the Committee recommends that NET should be retained as a compulsory requirement for appointment of lecturer for both undergraduate and postgraduate level, irrespective of candidate possessing M.Phil. or Ph.D. degree"
22. In view of the recommendations of the final report of Mungekar Committee, the Union of India gave policy directions vide letter dated 12th November, 2008 to UGC to issue regulations to make NET compulsory for appointment of teachers/lecturers in universities. The relevant portion of the said directions are reproduced hereinunder:- W.Ps.(C) 13689/2009 & 2780/2010 Page 10 of 25
"Now, therefore, in exercise of the powers, conferred by sub- section (1) of Section 20 of the University Grants Commission Act, 1956, the Central Government hereby directs that (1) the UGC shall, for serving the national purpose of maintaining standards of higher education, frame appropriate regulations within a period of thirty days from the date of issue of this Order prescribing that qualifying in NET/SLET shall generally be compulsory for all persons appointed to teaching positions of Lecturer/Assistance Professor in higher education, and only persons who possess degree of Ph.D. after having been enrolled/admitted to a programme notified by the Commission, after it has satisfied itself on the basis of expert opinion, as to be or have always been in conformity with the procedure of standardization of Ph.D. prescribed by it, and also that the degree of Ph.D. was awarded by a University or Institution Deemed to be University notified by the UGC as having already complied with the procedure prescribed under the regulations framed by the Commission for the purpose.
(2) the UGC shall notify the date or dates from which exemption from qualifying in NET/SLET in respect of Universities/Institutions Deemed to be Universities as well as the discipline for which such exemption is being granted only on the recommendations of a Committee of Experts to be constituted by the Commission and that the experts therein shall be persons of high eminence in the respective disciplines for which the persons possessing Ph.D. are considered for exemption from qualifying NET/SLET.
(3) The UGC shall not give any blanket or general exemption from NET/SLET to any University/Institution Deemed to be University unless the degree of Ph.D. awarded by it in all disciplines or programmes meet the same level of rigour in terms of standards and quality as laid down by the Commission for each discipline under the regulations for the purpose, and that exemption from NET/SLET in respect of Ph.D. awarded by any University/Institution Deemed to be University or to one or more of its programmes/disciplines in respect of such Ph.D. shall be further subject to the University/Institution continuing to comply with the regulations of the UGC and shall be open to review or reconsideration by the Commission; and, such exemption shall be withdrawn in any or all disciplines or in respect of an award of Ph.D. to any person or persons, where the Commission has, on the basis of recommendation by the Committee of experts or on the basis of any inquiry conducted by it suo moto, reasons to believe that there has been deviation from or violation of the procedure prescribed by Commission."W.Ps.(C) 13689/2009 & 2780/2010 Page 11 of 25
23. In pursuance of the aforesaid policy direction given by the Union of India, the UGC in exercise of its powers conferred by Clause (e) and
(g) of sub-Section 1 of Section 26 read with Section 14 of the Act, made the impugned Regulation, 2009 whereby qualifications were prescribed for teaching posts in the Universities and in any of the institutions affiliated to it. In our opinion, the quality of teaching in higher education is a matter of great concern and in order to position India as a powerhouse in the knowledge economy, the standards of education in Universities and other institutions of higher learning have to be improved substantially. The prescription of NET as an entry bar for being considered for appointment as a teacher has been placed in order to ensure a certain modicum of quality screening so that persons of quality enter the academic profession. Consequently, prescription of NET examination cannot be called to be arbitrary.
24. The contention of the learned counsel for the petitioners that the impugned Regulations framed by the UGC in pursuance of the directions by the Central Government is an abdication of its statutory powers, cannot be sustained as the abovesaid directives by the Central Government are with regard to policy relating to national purpose and, consequently, not only contemplated by the Act but also binding upon the UGC in terms of Section 20(1) of the Act.
25. Further, we are of the considered view that UGC‟s power to frame Regulations under Section 26 of the Act is not a stand-alone W.Ps.(C) 13689/2009 & 2780/2010 Page 12 of 25 power but is subject to other provisions of the Act. Also the Regulations so framed under Section 26 of the Act have to be in consonance with the rules as framed by the Central Government under Section 25 of the Act. The UGC in discharge of its functions under the Act has to necessarily follow the policy directions issued to it by the Central Government as mandated by Section 20(1) which has been reproduced above. In our view, it cannot be said that Section 26 is special in nature and other provisions of the Act including Section 20 are general in nature or otherwise. Consequently, it cannot be held that Section 26 of the Act is special in nature and has overriding effect over the other provisions of the Act including Section 20.
26. The submission of learned counsel for petitioners that exemption granted by the Regulations 2006 has given rise to legitimate expectation that such policy would be continued and the impugned Regulation 2009 be quashed on ground of hardship insofar as it does not grant exemption to the petitioners, does not impress us. It has been time and again held by the Supreme Court that a Rule or a Regulation cannot be declared void on the ground of hardship. In this connection, we may refer to the Supreme Court‟s judgment in State of Tamil Nadu & Anr. Vs. P. Krishnamurthy & Ors., (2006) 4 SCC 517 wherein the Apex Court has held as under:-
"Whether the Rule is valid in entirety?
15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well W.Ps.(C) 13689/2009 & 2780/2010 Page 13 of 25 recognised that a subordinate legislation can be challenged under any of the following grounds:
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).
16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity.
17. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India this Court referred to several grounds on which a subordinate legislation can be challenged as follows:
(SCC p.689, para 75) "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary."
(emphasis supplied) W.Ps.(C) 13689/2009 & 2780/2010 Page 14 of 25
18. In Supreme Court Employees‟ Welfare Assn. v. Union of India this Court held that the validity of a subordinate legislation is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or is so arbitrary or unreasonable that no fairminded authority could ever have made it. It was further held that the Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to be unauthorised and/or violative of the general principles of law of the land or so vague that it cannot be predicted with certainty as to what it prohibited or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith.
19. In Shri Sitaram Sugar Co. Ltd. v. Union of India a Constitution Bench of this Court reiterated: (SCC pp. 251-52, para 47) "47. Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be „reasonably related to the purposes of the enabling legislation‟. See Leila Mourning v. Family Publications Service. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, court might well say, „Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires‟:
per Lord Russel of Killowen, C.J. in Kruse v. Johnson."
20. In St. John‟s Teachers Training Institute v. Regional Director, NCTE this Court explained the scope and purpose of delegated legislation thus: (SCC p. 331, para 10) "10. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations.
The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up W.Ps.(C) 13689/2009 & 2780/2010 Page 15 of 25 details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes."
(emphasis supplied)"
27. Further, it is not the case of the petitioners that there has been any violation of the provisions of the enabling act or of any provisions of the Constitution of India. In State of M.P. & Anr. Vs. Bhola Alias Bhairon Prasad Raghuvanshi, (2003) 3 SCC 1 the Supreme Court has held under:-
"20. A delegated legislation can be declared invalid by the court mainly on two grounds: firstly, that it violates any provision of the Constitution and secondly, it is violative of the enabling Act. If the delegate which has been given a rule- making authority exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act but where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive as its delegate, the delegated legislation cannot be held to be in violation of the enabling Act."
(emphasis supplied)
28. Moreover, legitimate expectation is a species of principle of estoppel and it is settled position of law that there cannot be any estoppel against statute. In this regard, the Constitution Bench of Supreme Court in Electronics Corpn. of India Ltd. v. Secy., Revenue Deptt., Govt. of A.P. (1999) 4 SCC 458 observed as under :- W.Ps.(C) 13689/2009 & 2780/2010 Page 16 of 25
"20............It was contended by learned counsel that the appellant Company had acted upon this promise. Accordingly, the State Government was bound by its promise and was estopped from going back upon it.
21. There are two short answers to this contention. In the first place, there can be no estoppel against a statute. In the second place, the letter dated 17-10-1967 needs to be carefully read. It says that no notification was required for exempting the land from payment of non-agricultural assessment "so long as the units are run by the Government of India in public sector". The appellant Company is a separate and distinct legal entity that runs its own industry. The letter dated 17-10-1967 cannot be read as promising exemption to companies, though their shares be held wholly by the Union of India."
(emphasis supplied)
29. Further, the Regulations made under statute are a part of the statute itself and have the same statutory force and effect. The Supreme Court in St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 following the decision of its Constitution Bench in Sukhdev Singh and Ors. Vs. Bhagatram Sardar Singh Reghuvanshi and Anr., AIR 1975 SC 1331 held as under :-
"10. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to W.Ps.(C) 13689/2009 & 2780/2010 Page 17 of 25 special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the statutes to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the statute. The process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being overburdened and the needs of the modern-day society being complex, it cannot possibly foresee every administrative difficulty that may arise after the statute has begun to operate. Delegated legislation fills those needs. The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi.)"
(emphasis supplied)
30. In view of the above, the principle of estoppel is not applicable in the present facts of the case. Consequently, the contention that the earlier exemption has created a legitimate expectation and UGC is estopped from doing away with the said exemption is without any merit.
31. Further the contention that there has been an arbitrary exercise of power in issuing the impugned Regulations is misconceived on facts and untenable in law. In fact, from the aforesaid it is apparent that various expert committees have concluded that there is a wide variation in the grant of Ph.D./M.Phil. degrees in various universities in terms of the procedure of enrolment/admission to the said programmes and the non-mandatory nature of course work, absence of external evaluation or non insistence of full time enrolment by several universities in respect W.Ps.(C) 13689/2009 & 2780/2010 Page 18 of 25 of their Ph.D. and M.Phil. programmes. This, in our view, makes the results of exams conducted by various examination bodies vary from university to university and they are therefore neither reliable nor comparable. Consequently, to attain the objective of common national yardstick in terms of qualification for every candidate who aspires to be a lecturer and that the quality of education in higher education is maintained at the highest level, the impugned Regulations 2009 were issued.
32. We are of the considered opinion that confining the exemption to only those Ph.D. degree holders who had been awarded the Ph.D. degrees in compliance with University Grants Commission (Minimum Standards and Procedure for Award of Ph.D Degree), Regulation, 2009 and not extending the same to M.Phil. degree holders and every Ph.D. degree holder has a rational relation with the objective that the impugned Regulations seek to achieve and, therefore, the impugned Regulations, 2009 are neither arbitrary nor irrational and, therefore, are not violative of Article 14 of the Constitution of India. Consequently, in the present case the classification is based upon an intelligible differentia and it has a rational nexus with the differentia and the object sought to be achieved by the impugned Rules/Regulations. For this, we also find support from the decision of Supreme Court in Satyawati Sharma v. Union of India, (2008) 5 SCC 287 wherein the Apex Court has held as under :-
W.Ps.(C) 13689/2009 & 2780/2010 Page 19 of 25
"16. Article 14 declares that the State shall not deny to any person equality before the law or the equal protection of the laws. The concept of equality embodied in Article 14 is also described as doctrine of equality. Broadly speaking, the doctrine of equality means that there should be no discrimination between one person and another, if having regard to the subject-matter of legislation, their position is the same. The plain language of Article 14 may suggest that all are equal before the law and the State cannot discriminate between similarly situated persons. However, application of the doctrine of equality embodied in that Article has not been that simple. The debate which started in 1950s on the true scope of equality clause is still continuing. In last 58 years, the courts have been repeatedly called upon to adjudicate on the constitutionality of various legislative instruments including those meant for giving effect to the directive principles of State policy on the ground that same violate the equality clause. It has been the constant refrain of the courts that Article 14 does not prohibit the legislature from classifying apparently similarly situated persons, things or goods into different groups provided that there is rational basis for doing so. The theory of reasonable classification has been invoked in large number of cases for repelling challenge to the constitutionality of different legislations.
17. In Ram Krishna Dalmia v. Justice S.R. Tendolkar this Court considered the interplay of the doctrines of equality and classification and held: (AIR p. 547, para 11) "5. ... It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of [Supreme Court] that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
Speaking for the Court, S.R. Das, C.J. enunciated some principles, which have been referred to and relied on in all subsequent judgments. These are: (AIR pp. 547-48, para 11) W.Ps.(C) 13689/2009 & 2780/2010 Page 20 of 25 "11. ... (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be resumed (sic presumed), if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."
(emphasis supplied)
33. Moreover, we are of the considered opinion that it is not for the Court to question the wisdom of the policy directive of the Ministry of Human Resource and Development (UOI), when it is based on the recommendations of an expert committee (Mungekar Committee) and there has been no violation of the enabling Act or that of any provision W.Ps.(C) 13689/2009 & 2780/2010 Page 21 of 25 of the Constitution. We are of the view that the Courts should not venture into academic arena which is best suited for academician and experts. We may refer with profit to the decision of the Supreme Court in P.M. Bhargava v. University Grants Commission,(2004) 6 SCC 661 wherein it has held as under:-
"13. The counter-affidavit filed on behalf of UGC shows that UGC constituted a nine-member Committee which after discussion and deliberations recommended opening of the departments of "Jyotir Vigyan" in universities for award of degrees. The Committee has recommended to create such courses only in 20 out of 41 universities which had applied for the same and the degrees which would be awarded will be BA/BA (Hons.)/MA/PhD. The decision to start the course has been taken by an expert body constituted by UGC. The courts are not expert in academic matters and it is not for them to decide as to what course should be taught in universities and what should be their curriculum. This caution was sounded in University of Mysore v. C.D. Govinda Rao wherein Gajendragadkar, J. (as His Lordship then was) speaking for the Constitution Bench held that it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. In this case challenge was made to certain appointments and the Bench held that what the High Court should consider is whether the appointment made by the Chancellor on the recommendation of the Board had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should show due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted. This principle was reiterated in J.P. Kulshrestha (Dr.) v. Chancellor, Allahabad University3 wherein it was held as under:
(SCC p. 426, para 17) While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system, are bound by the rule of law and cannot be law unto themselves. If the Chancellor or any other authority lesser in level decides an academic matter or an educational question, the court keeps its hands off; but where a provision of law has to be read and understood, it is not fair to keep the court out."
(emphasis supplied) W.Ps.(C) 13689/2009 & 2780/2010 Page 22 of 25
34. The above mentioned principle has been upheld by the Supreme in a catena of judgments. (See Rajender Prasad Mathur Vs. Karnataka University & Anr., AIR 1986 SC 1448, Chairman, J & K State Board of Education Vs. Feyaz Ahmed Malik & Ors., (2000) 3 SCC 59, Varanaseya Sanskrit Vishwavidyalaya & Anr. Vs. Dr. Rajkishore Tripathi & Anr., (1977) 1 SCC 279, Medical Council of india Vs. Sarang & Ors., (2001) 8 SCC 427).
35. In addition, we find that the validity of NET examination, when first imposed by Regulations of 1991, was upheld by the Supreme Court in University of Delhi Vs. Raj Singh (supra) wherein it observed as under:-
20. The ambit of Entry 66 has already been the subject of the decisions of this Court in the cases of the Gujarat University and the Osmania University. The UGC Act is enacted under the provisions of Entry 66 to carry out the objective thereof.
Its short title, in fact, reproduces the words of Entry 66. The principal function of the UGC is set out in the opening words of Section 12, thus:
"It shall be the general duty of the Commission to take ... all such 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 ...."
It is very important to note that a duty is cast upon the Commission to take "all such steps as it may think fit ... for the determination and maintenance of standards of teaching". These are very wide-ranging powers. Such powers, in our view, would comprehend the power to require those who possess the educational qualifications required for holding the post of lecturer in Universities and colleges to appear for a written test, the passing of which would establish that they possess the minimal proficiency for holding such post. The need for such test is demonstrated by the reports of the commissions and committees of educationists referred to W.Ps.(C) 13689/2009 & 2780/2010 Page 23 of 25 above which take note of the disparities in the standards of education in the various Universities in the country. It is patent that the holder of a postgraduate degree from one University is not necessarily of the same standard as the holder of the same postgraduate degree from another University. That is the rationale of the test prescribed by the said Regulations. It falls squarely within the scope of Entry 66 and the UGC Act inasmuch as it is intended to co-ordinate standards and the UGC is armed with the power to take all such steps as it may think fit in this behalf. For performing its general duty and its other functions under the UGC Act, the UGC is invested with the powers specified in the various clauses of Section 12. These include the power to recommend to a University the measures necessary for the improvement of University education and to advise in respect of the action to be taken for the purpose of implementing such recommendation [clause (d)]. The UGC is also invested with the power to perform such other functions as may be prescribed or as may be deemed necessary by it for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions [clause (j)]. These two clauses are also wide enough to empower the UGC to frame the said Regulations. By reason of Section 14, the UGC is authorised to withhold from a University its grant if the University fails within a reasonable time to comply with its recommendation, but it is required to do so only after taking into consideration the cause, if any, shown by the University for such failure. Section 26 authorises the UGC to make regulations consistent with the UGC Act and the rules made thereunder, inter alia, defining the qualifications that should ordinarily be required for any person to be appointed to the teaching staff of a University, having regard to the branch of education in which he is expected to give instruction [clause (e) of sub-section (1)]; and regulating the maintenance of standards and the coordination of work or facilities in Universities [clause (g)]. We have no doubt that the word „defining‟ means setting out precisely or specifically. The word „qualifications‟, as used in clause (e), is of wide amplitude and would include the requirement of passing a basic eligibility test prescribed by the UGC. The word „qualifications‟ in clause (e) is certainly wider than the word „qualification‟ defined in Section 12- A(1)(d), which in expressly stated terms is a definition that applies only to the provisions of Section 12-A. Were this definition of qualification, as meaning a degree or any other qualification awarded by a University, to have been intended to apply throughout the Act, it would have found place in the definition section, namely, Section 2."
(emphasis supplied) W.Ps.(C) 13689/2009 & 2780/2010 Page 24 of 25
36. Further, we find that Regulations 2009 are in no way retrospective in nature. In fact, they are prospective inasmuch as they apply to appointments made or proposed to be made after the date of notification and do not apply to appointments made on regular basis prior to the said date.
37. Consequently, the present writ petitions, being bereft of merit, are dismissed but with no order as to costs.
MANMOHAN, J
DECEMBER 06, 2010 CHIEF JUSTICE
js/rn/ms
W.Ps.(C) 13689/2009 & 2780/2010 Page 25 of 25