Jammu & Kashmir High Court - Srinagar Bench
Irfan Ahmad Bhat And Others vs Skuast And Others on 7 December, 2019
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
LPASW no.118/2018
CM no.1027/2019 [01/2019]
IA no.01/2018
Reserved on: 04.11.2019
Pronounced on: 07.12.2019
Irfan Ahmad Bhat and others
....... Appellants(s)
Through: Mr Nissar Ahmad Bhat, Advocate
Versus
SKUAST and others
......Respondent(s)
Through: Mr Z.A.Shah, Senior Advocate
Mr AltafHaqani, Advocate
Mr M.Y. Bhat, Advocate
Mr S.A.Makroo, Advocate
Mr Anisul Islam, Advocate
Mr Momin Khan, Advocate
CORAM: HON'BLE MR JUSTICE TASHI RABSTAN, JUDGE
JUDGEMENT
1. At the very outset, let it be mentioned that on account of dissenting and divergent views expressed by two learned Judges of this Court, comprising Hon‟ble Mr Justice Sanjeev Kumar and Hon‟ble Mr Justice Rashid Ali Dar, in an Appeal, diarised and registered as LPASW no.118/2018, Hon‟ble the Chief Justice, has referred this Appeal, in exercise of Sub-Rule (2) of Rule 36 of the J&K High Court Rules, 1999, and that is how, this Single Bench is constituted to call upon to decide, determine and adjudicate upon the controversy in 2 LPA no.118/2018 hand. Hon‟ble Mr Justice Sanjeev Kumar has proposed to allow the Appeal and set-aside learned Writ Court judgement dated 10thAugust 2018, whereas Hon‟ble Mr Justice Rashid Ali Dar (now retired) proposed to dismiss the Appeal of appellants/writ petitioners.
2. The Hon‟ble Judges have come up with three questions for determination by the Third Judge, to be designated for the purpose by Hon‟ble the Chief Justice, which are:
(1) Whether Regulation 4.4.1 of the UGC Regulations on Minimum Qualification for Appointment of Teachers and other academic staff in Universities and Colleges and measures for the Maintenance of Standards in Higher Education, 2010, would be applicable for appointment of Assistant Professor-cum-Junior Scientist in SKUAST (Sher-
i-Kashmir University of Agricultural Sciences and Technology), notwithstanding Regulation 1.1.1 of the said Regulations and issuance of notifications/communications dated 26.12.2011 and 09.03.2017 issued by Indian Council of Agricultural Research, New Delhi (ICAR)?
(2) Whether the UGC Regulations, 2010, more particularly, Regulation 4.4.1, which lays down the Minimum Qualification for Appointment and other service conditions of the Universities and Colleges Teachers etc. for Maintenance of Standards of Higher Education, 2010, are applicable to the Faculty of Agriculture and Veterinary Science of the Agricultural Universities like SKAUST-K in view of the endorsement of these Regulations by the Govt. of India, Ministry of Agricultural vide its F.No. 1(01)/2009- Per-IV to the State Government to consider adopting and implementing the same in respect of the State Agricultural Universities?
(3) Whether the Statute of SKAUST-K providing eligibility qualification contrary to the one prescribed by the UGC Regulations duly endorsed by the Govt. of India, Ministry of Agricultural to all the Agricultural Universities to adopt and implement the same in respect of the Agricultural Universities in the State is sustainable in law and if not whether the same can be held to be bad even if there is no specific challenge laid to such Statute in the writ petition.
3. Though recapitulation of factual background would superfluously verbose this judgement, yet it is imperative to have bird‟s eye view of 3 LPA no.118/2018 the case set up by parties before learned Writ Court. Discourse on all minutiae and facets concerning instant case has been made by both, learned Single Bench and learned Division Bench.Nevertheless, difference of opinion of the Hon‟ble Judges of the Division Bench, who have made present Reference, is to be gone through and squared off here so as to have a majority view.
4. Sher-e-Kashmir University of Agricultural Sciences & Technology of Kashmir, Main Campus, Shalimar, Srinagar, (for succinctness "SKUAST") by an Advertisement Notice no.01 of 2017 dated 13th March 2017, invited applications in the prescribed format from eligible candidates for filling up the posts of Assistant Professors- cum-Junior Scientists in the Fish Endocrinology, Toxicology, Limnology, Aquaculture, Fish Breeding, PHT, Fish Biochemistry, Fish Parasitology, Gear & Craft, Sericulture, Vegetable Science, Statistics, Forestry. The essential qualification, as is noticeable from Advertisement Notice, is:
"I.
i) Master degree with minimum 55% marks or equivalent grade in OGPA or equivalent postgraduate qualification in the concerned/related subject.;
ii) PhD degree (with course work) in concerned/related subject as prescribed by the UGC (MSP) 2009 Regulations.
iii) NET or at least two full length publications having a NAAS rating or not less than 4, on the last date of submission of application.
OR II.
i) Master‟s degree with 55% marks or equivalent grade in OGPA
or equivalent postgraduate qualification in the
concerned/related subject.
ii) PhD degree(without course work) in the concerned/related
subject for candidates having completed their Ph.D prior to implementation of UGC (MSP) 2009 Regulation.
iii) NET 4 LPA no.118/2018 (NET or at least two full length publications having NAAS rating not less than 4, on the last date of submission of application instead of NET at II(iii) above for the discipline of Sericulture) NET shall be exempted for the candidates registered for Ph.D prior to July 11, 2009 subject to the condition that:
a. Ph.D degree of the candidate awarded in regular mode only; b. Evaluation of the Ph.D thesis by at least two external examiners;
c. Open Ph.D viva-vice of the candidate had been conducted; d. Candidate has published two research papers from his/her Ph.D work out of which at least on must be in referred Journal; e. Candidate has made at least two presentations in conference/seminars, based on his/her Ph.D work. f. To (e) as above are to be certified by the Vice-Chancellor/Pro- Vice Chancellor/Dean (Academic Affairs)/Dean(University Instructions)"
4.1 Advertisement Notice no.01 of 2017 also envisagedthe applicants to produce/attach with their application formsthe Certificate of having completed Ph.D. Degree programme according to UGC (Minimum Standards and Procedure for award of Ph.D. Degree) 2009 Regulations, (for brevity "UGC Regulationsof 2009") from Universities, wherefrom degrees had been obtained or in default Ph.D. Degree would not be taken into consideration for eligibility/selection.
5. Aggrieved of Advertisement Notice no.01 of 2017 dated 13 th March 2017,to the extent that prescribed Ph.D. Degree as qualification for the post of Assistant Professor-cum-Junior Scientist in the Faculty of Fisheries, the appellants/writ petitioners preferred a writ petition, being SWP no.721/2017 titled Irfan Ahmad Bhat and others v. SKUAST and others.
5.1 The case set up by the writ petitioners/appellant before learned Writ Court, as is apparent from the record,is that they have qualified B.F.Sc and have also done Post Graduation Degree in Fisheries, viz. Masters of Fisheries Science. They have also passed National 5 LPA no.118/2018 Eligibility Test (for short "NET") conducted by Agricultural Scientists Recruitment Board. Their claim is that Bachelors in Fisheries Science, done by them is Four Years‟ Course and as such a Professional Degree as clarified by Indian Council of Agricultural Research (for brevity "ICAR") and the said Degree is altogether different from the Degrees having Three Years‟ Course. 5.2 Appellants/writ petitioners also maintain in their writ petition that qualification prescribed for the post of Assistant Professor by University Grants Commission(for short "UGC") is good academic record with at least 55% marks (or an equivalent grading in point scale wherever grading system is followed) at the Master‟s Degree Level in the relevant subject or an equivalent degree from an Indian Foreign University, besides fulfilling the qualification, the candidates must have cleared NET for Lecturers conducted by UGC, CSSIR or similar test conducted by UGC. In contradiction to qualification prescribed by UGC, writ petitioners assert that SKUAST, while issuing Advertisement Notice no.03 of 2016 dated 10th October, 2016, invited applications for filling up the posts in Faculty of Fisheries, Rangil, Ganderbal, including Assistant Professor-cum-Junior Scientist, has laid different qualifications therefor. 5.3 It is also assertion of appellants/writ petitioners in their writ petition that they represented against Advertisement Notice no.03 of 2016 dated 10th October 2016 before Deputy Director General (Fisheries Science), KrishiAnusandhanBhawan-II, New Delhi. That apart, writ petitioners also claim to have represented to respondent no.1 and as a 6 LPA no.118/2018 sequence of which, Corrigendum dated 25th October 2016 was issued, deleting post of Assistant Professor-cum-Junior Scientist from Notification no.03 of 2016 dated 10th October 2016. ICAR vide letter dated 9th March 2017 is stated to have informed Vice Chancellors of all Universities that competent authority in ICAR, consequent upon Notification of UGC published in the Gazette of India on 11 th July 2016 for NET exemption to the candidates registered as Ph.D. Programme prior to 11th July 2009, approved NET essentiality for recruitment to the post of Assistant Professor and equivalent in disciplines, in which NET is conducted, for candidates registered for Ph.D. Degree prior to 11th July 2009, shall be exempted subject to the condition that Ph.D. Degree of a candidate is awarded in regular mode only; evaluation of Ph.D. thesis by, at least, two external examiners; open Ph.D. Viva Voce of candidate had been conducted; candidate has published two research papers from his/her Ph.D. work out of which at least one must be in referred journal; candidate has made two presentations in conference/seminars, based on his/her Ph.D. work. According to writ petitioners, aforesaid Notification has been issued only qua those candidates who qualified Ph.D. prior to 11 th July 2009 and for other candidates NET is compulsory to be qualified for being eligible for the post of Assistant Professor. Nevertheless, SKUAST, it is asserted, invited applications vide Advertisement Notice no.01 of 2017 dated 13th March 2017, for the post of Assistant Professor in different disciplines of Aquatic Environmental Management/Fisheries Science. According to writ petitioners, qualification prescribed by 7 LPA no.118/2018 SKUAST and Rules relating to Assistant Professor, are in derogation to UGC norms, with an intention to accommodate some blue-eyed persons against post in question.
5.4 Grounds of challenge made use of by writ petitioners/appellants in their writ petition are that: qualification of NET is compulsory for candidates applying for the post of Lecturers and Assistant Professors and Ph.D. would be equated only to those, who have qualified it prior to 11th July 2009 and thus candidates, who have applied for the post in question have to be NET qualified and same cannot be equated with any other Degree and NET cannot be equated with any other speciality or publication; Advertisement Notice has been issued aiming at to accommodate some blue eyed persons and so many options have been put including a huge number of candidates, who are not qualified in terms of norms prescribed by UGC/ICAR and that it is Master‟s Degree in concerned subject with NET, which is a basic component for the post; Master‟s Degree in any discipline cannot be equated for the post of Assistant Professor in Fisheries Science and that General Master‟s Degree cannot be equated with candidates having Master‟s in Fisheries Science; petitioners are eligible to the post of Assistant Professor but they have been excluded from the zone of consideration, by incorporation of qualification by SKUAST, which is in contravention to UGC guidelines and rules; UGC Act comes within the purview of Entry 66 of List-I of 7th Schedule to the Constitution of India; UGC Act was enacted for coordination and determination of standards in Universities and for that purpose UGC 8 LPA no.118/2018 was established in terms of Section 4 of UGC Act and the powers and functions of UGC have been laid down in the Act; UGC Act has been enacted by the Parliament in terms of Entry 66 of List-I of 7th Schedule of the Constitution of India, which will always prevail over University Acts; the minimum qualifications prescribed by UGC for any post or any minimum academic qualification cannot be deviated by any University and once any University acts in derogation thereof, such act is unconstitutional; the standards are requirements laid down by UGC and have to be followed by all State authorities and SKUAST is following Statute for appointing Assistant Professors, which is not in consonance with UGC norms; UGC Act prevails over any Act of University and Statute of SKUAST is in direct conflict with UGC Act and Regulations; Subordinate legislation must be reasonable and in consonance with legislative policy; Statute of SKUSAT provides that a candidate must be Ph.D. with coursework as prescribed by UGC Regulations of 2009 and Ph.D. is relaxable for candidates holding P.G. in Veterinary Science/M.Tech in relevant field of Agricultural Engineering, along with one publication in NAAS rate referred journal and NET, the said condition has not been incorporated by SKUAST in impugned notification, and that B.Sc. Bioscience is also not prescribed in the Statute of SKUAST which clearly shows that impugned notification has been issued only to shower undue benefits on their blue eyed candidates. 5.5 SKUAST filed its objections in opposition to writ petition before learned Writ Court. Their assertion is that SKUAST has never 9 LPA no.118/2018 derogated from UGC standards, but, it has prescribed higher qualification that is within their rights and discretion and that UGC guidelines do not ipso facto apply to the States as same are first of all to be incorporated by respective States and in view of admissions made by writ petitioners, no case for interference is made out as writ petitioners are seeking enforcement of UGC guidelines directly. It is also averred by SKUAST in their objections that appellants/writ petitioners actually beseech to confine zone of consideration for advertised posts to their sphere only while as SKUAST is at liberty to expand zone of consideration which is in consonance with Articles 14 and 16 of the Constitution of India. SKUAST has also asserted that petitioners want application of criteria fixed by UGC for selection process when it is settled position of law that regulatory bodies, like, UGC, MCI, only lay down minimum standards and employer concerned can set higher stands than minimum prescribed by the said body and, therefore, the SKUAST has every right to set higher standard inasmuch as same is in consonance with SKUAST Statute. 5.6 SKUAST insists that as per Statutes governing eligibility requirement for appointment to the post of Assistant Professor-cum-Junior Scientist (Fisheries Science), candidate with B.Sc. (Bioscience) are eligible for the post subject to the condition that candidate must have completed requisite remedial/deficiency course(s) during Post Graduation in Fisheries Science and, therefore, the Post Graduate Degree obtained by a candidate with Graduation Level qualification of B.Sc (Bioscience) after having successfully completed requisite 10 LPA no.118/2018 remedial/deficiency course(s) at Post Graduation level, is to be considered equal to Post Graduate Degree obtained by a candidate with graduation level qualification of B.F.Sc for determining eligibility for the post in question unless otherwise provided in the Statutes. The qualification for the post of Lecturer recommended by UGC as pointed out by writ petitioners/appellants in writ petition is minimum eligibility criteria suggested by UC whereas eligibility criteria for appointment by selection to the post in question fixed by SKUAST is not less than minimum eligibility suggested by UGC as and when advertisement for posts is floated by SKUAST so that satisfactory number of intending applicants with Ph.D. qualification in the concerned subject and NET do turn up with their application and that there does not seem any dearth of Ph.D. Degree holders with NET qualification and the accusation of writ petitioners against SKUAST are baseless inasmuch as SKUAST has not in any way compromised with minimum eligibility qualification for appointment of well qualified, talented and deserving candidates. unlike other academic institutions/universities in the State, SKUAST does not appoint Lecturers and as per SKUAST Act 1982, a Teacher means Assistant Professor-Junior Scientist and above, which infers that he/she appointed on the said post is simultaneously a Teacher as well as a Scientist (Researcher) and extensionist because a Teacher in SKUAST is mandated with triple functions of teaching, research and extension education. The mandatory functions of Teachers in SKUAST warrants standard eligibility requirement, but, it should not 11 LPA no.118/2018 be less than the norms suggested by UGC or any other agency recognised for such purpose.
5.7 The requirement of NET, as is stated by SKUSAT in its objections before learned Writ Court, has been dispensed with qua the candidates who have qualified Ph.D. prior to 2009. This was done when the candidates possessing Ph.D. prior to 2009 raised hue and cry and many of them even committed suicide as they were compelled to produce NET certificates while competing for the post of Assistant Professor. It was in this behalf that UGC formed Nigvekar Committee, which recommended that since Ph.D. holders prior to 2009 could not be asked to complete Ph.D. in accordance with UGC Regulations of 2009, they deserved a special exemption. The same was implemented. There has been no deviation from SKUAST statutory provisions governing appointment to post in question while issuing advertisement notice therefor inasmuch as writ petitioners/appellants have no locus standi to challenge SKUAST Statutes according to their personal suitability. Writ petitioners must provide their merit in selection process by competing with all meritorious candidates, who approach for appointment in terms of Advertisement Notice and the Statute is not in derogation of UGC guidelines, but, provide for a higher standard, which is admittedly permissible and is discretion of employer. SKUAST cannot change prescribed qualifications as laid down in the Statutes to suit interests of a particular group (petitioners) only. The SKUAST Statutes have been framed after passing through requisite statutory channels, which 12 LPA no.118/2018 include Academic Council, Board of Management, University Council. The current statutory provisions under which posts in question have been advertised have undergone the said procedure before becoming the Statutes. Besides, NET is not an indispensable requirement inasmuch as Advertisement Notice is in accordance with and not contradicts UGC guidelines. NET is dispensed with only when a candidate has Ph.D. in accordance with MSP Regulations of 2009, which are provided by the UGC. The qualifications for the post existing in other Universities have no relevance with the case as the qualifications for various posts across the country vary from University to University.
5.8 University Grants Commission (UGC) also filed its Reply Affidavit before learned Writ Court. Its categoric statement is that norms/regulations of ICAR shall apply to the present case. 5.9 Writ respondents 5 to 13 were arrayed as party respondents before learned Writ Court by order dated 10th November 2017. They adopted Reply of the SKUAST.
6. Learned Writ Court, after hearing both parties at length and considering all facets of the matter, passed a lucid and eloquent judgement on 10th August 2018. There against present the appellants preferred Letters Patent Appeal bearing LPASW no.118/2018.
7. The grounds of challenge in the Appeal, as have been reiterated by learned counsel for appellants as well, are that: the appellants after participating in the Common Entrance Test, were selected to undergo Bachelors in Fisheries Science (B.F.SC) and they successfully 13 LPA no.118/2018 qualified the said course and thereafter participated in the Entrance Test in All India Level and were selected for undergoing Master‟s Degree in Fisheries Science (M.F.Sc.); the appellants successfully qualified Master‟s Degree and also qualified NET conducted by ICAR/UGC; they were waiting for the posts to be advertised by SKUAST, but, they were astonished when they came to know about Advertisement Notice dated 10th October 2016, by which basic qualification prescribed by the University was in derogation of UGC norms as well as Rules being followed by the Universities in this regard; the appellants immediately filed a representation before ICAR as also before respondent no.1 or looking into the matter insofar as qualification prescribed for post of Assistant Professor was concerned and that respondent no.1, after giving a thoughtful consideration to appellants‟ representation, issued Corrigendum dated 25th October 2016, deleting advertised post of Assistant Professor from Notification dated 10th October 2016; thereafter, the appellants and other qualified fisheries professionals were waiting for fresh advertisement in tune with UGC guidelines as well as Rules prescribed in the Universities insofar as post of Assistant Professor is concerned, but, the SKUSAT again issued Advertisement Notice no.01 of 2017 dated 13th March 2017, showing qualification therein in derogation of the Rules; in the Advertisement Notice, Master‟s Degree with 55% marks has been shown to be qualification for the post of Assistant Professor, which, in any case, cannot be equated with Master‟s Degree obtained by candidates after qualifying their 14 LPA no.118/2018 B.F.Sc Degree inasmuch as said Degree has been declared as professional degree by ICAR and same cannot be qualification for the post of Assistant Professor in Fisheries Science; the appellants challenged aforesaid Advertisement Notice as well as Statute as same were in conflict with the norms and guidelines prescribed by the UGC Act; learned Writ Court, in impugned judgement, mentioned that according to learned counsel for writ petitioners/appellants, the Graduate Degree of Bachelors of Fisheries Science (B.F.Sc.) is a professional degree and cannot be equated with B.Sc. in Bioscience or other Bachelors of Science, but, learned Writ Court did not choose to deliberate upon aforesaid aspect and has not made any sort of observations with regard to the same; the appellants have never made any sort of averment against private respondents as they have not challenged their eligibility or qualification, but, the basic case of writ petitioners/appellants was as regards qualification prescribed in the Advertisement Notice no.01 of 2017 as well as the Statute, which were in total conflict with qualification prescribed by UGC; learned Writ Court has not appreciated these averments made in writ petition by writ petitioners/appellants; basic case of appellants before learned Writ Court was that while issuing advertisement notice, SKUAST has not followed the Rules as well as norms prescribed by UGC/ICAR for filing up the posts of Assistant Professors in the Faculty of Fisheries; since Advertisement Notice was issued by SKUAST on the basis of its Statute, which too, is in derogation of UGC as well as ICAR norms, therefore, the appellants, besides challenging Advertisement 15 LPA no.118/2018 Notice dated 13th March 2017, had also thrown challenge to SKUAST Statute to the same effect; learned Writ Court, after hearing parties, was pleased to direct SKUAST not to finalise process of selection, if any, initiated vis-à-vis post in question until further orders from the Court; the SKUAST filed their response and virtually admitted writ petitioners‟ case, by which they had clearly mentioned that they are bound to follow minimum qualification prescribed by UGC, however, they are within their rights to prescribe higher qualification; since basic case projected by appellants before learned Writ Court was with regard to minimum qualification, by which they had mentioned that in terms of impugned Advertisement Notice as well as the Statute, SKUAST is deviating from minimum qualification prescribed by UGC/ICAR; Advertisement Notice as well as Statute prescribe qualification, which is in total derogation of UGC/ICAR norms as not only the basic degree at Graduation level has been deviated but also the candidates, who have not done Master‟s Degree in Science, have been included in eligibility clause who can participate for the post of Assistant Professor; qualification prescribed by UGC for the post of Assistant Professor is minimum 55% marks in relevant subject at Master‟s level, which means that a candidate must have done Master‟s Degree in Fisheries with, at least, 55% marks, however, the Statute as well as impugned Advertisement Notice are contrary to aforesaid qualification, but, learned Writ Court, even though narrated the facts of the case as projected by appellants, has gone on a wrong assumption by mentioning that the appellants have challenged higher 16 LPA no.118/2018 qualification of Ph.D. prescribed in Advertisement Notice as well as the Statute, which was not the case projected by appellants before learned Writ Court; basic case projected by appellants in writ petition was that advertisement notice dated 13th march 2017, issued by SKUAST as well as its Statute being contrary to UGC/ICAR norms and also judgements passed by the Supreme Court, wherein it has been clearly mentioned that NET is an essential qualification for the post of Assistant Professor; since advertisement notice as well as SKUAST Statute are contrary to UGC Act and ICAR norms, as the field of education is governed by Entry 66 of List I of 7 th Schedule to the Constitution of India, therefore, it is UGC Act and ICAR norms which have prevailing effect and SKUAST Statute, being in derogation of UGC Act and ICAR norms, has to be set-aside; SKUAST Act has been promulgated under Entry 25 List III of 7 th Schedule to the Constitution of India and UGC Act has been enacted in terms of Entry 66 List I of 7th Schedule, so same has an overriding effect over the State University, but, learned Writ Court has not properly appreciated aforesaid contention raised by appellants in impugned judgement as learned Writ Court has mentioned Entry List 66 of Concurrent List, which was not the case of appellants; learned Writ Court has not referred to any judgement of law with regard to aforesaid contention raised by appellants; qualification prescribed in impugned notification, besides Master‟s Degree, is Ph.D. Degree with course work and also NET qualified or at least two full length publications having a NAAS rating of not less than 4 on the last date 17 LPA no.118/2018 of submission of application; it was the case of appellants before learned Writ Court that qualification of NET is compulsory for the candidates who would apply for the post of Lecturers and Assistant Professors and Ph.D. would be equated only to those who have qualified the same prior to 11th July 2009 in terms of Regulations of 2009, so the candidates, who had applied for the post, have to be NET qualified and same cannot be equated with any other Degree and also NET cannot be equated with any other speciality or publication, but learned Writ Court has not delved upon the said contention raised by appellants and has taken the case of appellants as if they were challenging higher qualification prescribed in advertisement notice, which, in fact, was never the case of appellants before learned Writ Court; in impugned judgement, learned Writ Court has relied upon judgement passed in SWP no.1558/2017 titled TanveerAhmad Khan v. SKUAST and others, however, while going through relevant paragraphs incorporated in the judgement, it becomes manifestly clear that the Supreme Court in the judgement relied upon by learned Writ Court in the said case, has held that while prescribing criteria for admission to institutions for higher education, including medical education, the State cannot adversely affect standards laid down by 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 affect adversely standards of education prescribed by Union of India in exercise of powers under Entry 66 of List I, i.e. a State may, for admission to Post Graduate Medical course, lay down qualifications in 18 LPA no.118/2018 addition to those prescribed under Entry 66 of List I, which would be consistent with promoting higher standards for admission to higher educational courses, but any lowering of norms laid down can and does have an adverse effect on the standards of education in the institutions of higher education; aforesaid judgement would squarely cover the case of appellants as appellants have contended before learned Writ Court that SKUAST cannot deviate from basic qualification prescribed by UGC, which has authoritatively been pronounced by the Supreme Court that they can prescribe higher qualification without making any sort of change in basic and essential qualification prescribed by UGC in their Regulations of 2010 as amended from time to time and these Statutes have been framed in exercise of power vested in SKUAST in terms of relevant provisions of Act of the State Legislature; SKUAST Statute is not prescribing higher qualification but is deviating from basic qualification prescribed by UGC; NET has been equated with publications and any candidate having done Master‟s Degree in Science is shown to be eligible in terms of SKUAST Statute, which is in derogation of UGC norms; that in the judgement dated 9th August 2018, which was relied upon by learned Writ Court, while passing impugned judgement, it has been observed that qualification mentioned in UGC Regulations of 2010 are minimum qualifications below which no University or institution can go, but at the same time, with a view to maintaining excellence in standard of education, a University or an institution can prescribed higher qualifications than such minimum qualifications 19 LPA no.118/2018 mentioned in UGC Regulations of 2010; that appellants specifically mentioned in writ petition that candidates, having Ph.D. with course work in concerned subject as prescribed by UGC Regulations of 2009, are exempted from qualification of NET and the said position was also admitted by counsel for SKUAST; that learned Writ Court has differentiated judgement relied upon by counsel for appellants delivered by the Supreme Court in Annamalai University v. Secy to Govt., 2009 (4) SCC 590, on the ground that same pertains to distance education; that aforesaid judgement, relied upon by appellants before learned Writ Court, was only to bring home the point with regard to powers prescribed in Union List and Concurrent List; that UGC Act has to prevail over any other Act of other Universities and same has been held in aforesaid judgement as well; that Statute of SKUAST is in direct conflict with UGC and relevant regulations, therefore, same itself was ultra vires the UGC Act as it is well settled principle of law that subordinate legislation must be reasonable and in consonance with legislative policy and also give effect to the purpose of object of parent Act and good faith; though learned Writ Court relied upon UGC Act, yet it did not deliberate upon the same inasmuch as UGC Act was enacted for coordination and determination of standards in Universities; that UGC was established by Central Government in terms of Section 4 of UGC Act and powers and functions of UGC have been laid down in the Act; another judgement relied upon by counsel for appellants before learned Writ Court was the judgement rendered by the Supreme Court in P. Suseela v. University Grants 20 LPA no.118/2018 Commission, 2015 (8) SCC 129, in which it has been clearly mentioned that NET shall remain minimum eligibility condition for recruitment/appointment to the post of Assistant Professor in Universities/college/institutions; that in the said judgement it has been clearly mentioned that the object of directions of Central Government read with UGC Regulations 2009/2010, are to maintain excellence and standards of higher education and keeping this object in mind, minimum eligibility condition of passing NET is laid down.
Learned counsel for appellants/writ petitioners has, before this Bench, placed reliance on Dilip Kumar Ghosh and others v. Chairman and others, AIR 2005 SC 3485; Annamalai University v. Secy to Government, Inf. & Tourism Department and others, 2009 (4) SCC 590; KalyaniMathivanan v. K.V. Jeyaraj and others, 2015 (6) SCC 363; and Bangalore Development Authority Vs. M/s Vijaya Leasing Limited and others, reported in 2013(14) SCC 737.
8. The Division Bench, comprising Hon‟ble Mr Justice Sanjeev Kumar and Hon‟ble Mr Justice Rashid Ali Dar (now retired), however, came up with differed opinions. Hon‟ble Mr Justice Sanjeev Kumar has agreed with the submissions of appellants/writ petitioners and set- aside the learned Writ Court judgement dated 10 th August 2018. While quashing Advertisement Notice no.01 of 2017,Hon‟ble Mr Justice Sanjeev Kumar has kept it open to SKUAST to make necessary amendments in its Statute and re-advertise posts in question laying down qualification for posts in consonance with Regulation 21 LPA no.118/2018 4.4.1 of UGC Regulations of 2010 and provide qualification for the posts in question higher than what is prescribed in paragraph 4.4.1 of UGC Regulation of 2010. Contrary to this, Hon‟ble Mr Justice Rashid Ali Dar has upheld the learned Writ Court judgement dated 10 th August 2018 and dismissed the Appeal. It is as a result of differing opinions of the Hon‟ble Judges, that present Reference has been made to this Bench by Hon‟ble the Chief Justice.
9. I have heard learned counsel for parties and considered the matter.
10. After above discourse, let me unswervingly go through the questions/points referred to this Bench for determination and square them off ad seriatim hereinafter. The first question/point is:
(i) Whether Regulation 4.4.1 of the UGC Regulations on Minimum Qualification for Appointment of Teachers and other academic staff in Universities and Colleges and measures for the Maintenance of Standards in Higher Education, 2010, would be applicable for appointment of Assistant Professor-cum-Junior Scientist in SKUAST (Sher-i-Kashmir University of Agricultural Sciences and Technology), notwithstanding Regulation 1.1.1 of the said Regulations and issuance of notifications/communications dated 26.12.2011 and 09.03.2017 issued by Indian Council of Agricultural Research, New Delhi (ICAR)?
10.1 Given above recited first point/question, referred to this Bench, it would be advantageous to have compendious discourse of UGC Regulations of 2010.
10.2 It was way back in the year 1956, that a need felt to come up with an Act, making provisions for coordination and determination of standards in Universities and for that purpose establish a University Grants Commission (UGC). Accordingly, University Grants 22 LPA no.118/2018 Commission Act, 1956 (for short "UGC Act") was enacted on 3rd March 1956.
10.3 Section 3 of UGC Act says that Central Government may, on the advice of UGC, declare by notification in Official Gazette, that any institution for higher education, other thana University, shall be deemed to be a University for purposes of UGC Act and onsuch a declaration being made, all the provisions of UGC Act shall apply to suchinstitution as if it were a University within the meaning of clause
(f) of section 2 of UGC Act. Section 12 furnishes account of UGC functions. It shall be general duty of UGC to take, in consultation with Universities or other bodies concerned, all such steps as it may think fit for promotion and coordination of University education and for determination and maintenance of standards of teaching, examination and research in universities, and for purpose of performing its functions under UGC Act, the UGC mayinquire into the financial needs of Universities;allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporatedby or under a Central Act for maintenance and development of such Universities or for any other general or specified purpose;allocate and disburse, out of the Fund of UGC, such grants to other Universities as it may deem necessary or appropriate for developing such universities or for maintaining or developing, or both, of any specified activities of such Universities or for any other general or specified purpose:
provided that in making any grant to any such University, UGC shall give due consideration to development of university concerned, its 23 LPA no.118/2018 financial needs, standard attained by it and national purposes which it may serve;allocate and disburse out of the Fund of UGC, such grants to institutions deemed to be universities in pursuance of a declaration made by Central Government under section 3 of UGC Act, as it may deem necessary, for one or more of the purposes, namely, maintenance in special cases; development; for any other general or specified purpose;establish, in accordance with regulations made under this Act, institutions for providing common facilities, services and programmes for a group of universities or for universities in general and maintain such institutions or provide for their maintenance by allocating and disbursing out of the Fund of UGC such grants as UGC may deem necessary;recommend to any University the measures necessary for the improvement of University education and advise university upon action to be taken for purpose of implementing such recommendation;advise Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be;
advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University;advise the Central Government or any State Government or university on any question which may be referred to the Commission by the Central government or the State Government or the University, as the case may be;collect information on all such matters relating to university education in India and other 24 LPA no.118/2018 countries as it thinks fit and make the same available to any University;require a University to furnish it with such information as may be needed relating to the financial position of the university or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning;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.
10.4 Section 26 is relevant provision with which we are concerned i.e. to make regulations. It envisages that UGC may, by notification in Official Gazette make regulations consistent with UGC Act and the rules made thereunder: regulating meetings of UGC and procedure for conducting business thereat;regulating the manner in which and purposes for which persons may be associated with UGC under section 9 of UGC Act;specifying terms and conditions of service of employees appointed by UGC;specifying institutions or class of institutions which may be recognised by UGC under clause (f) of section 2;defining qualifications that should ordinarily be required of any person to be appointed to teaching staff of University, having regard to branch of education in which he is expected to give instruction;defining minimum standards of instruction for grant of any degree by any University;regulating maintenance of standards and co-
ordination of work or facilities in Universities; regulating 25 LPA no.118/2018 establishment of institutions and other matters relating to such institutions;specifying matters in respect of which fees may be charged, and scales of fees in accordance with which fees may be charged, by a college;specifying the manner in which an inquiry may be conducted.
10.5 From the above provisions, it comes to fore that UGC has been established for determining standard of universities, promoting and coordinating university education, for determining and maintaining standards of teaching, examination and research in universities, for defining qualifications regarding teaching staff of university, maintaining standards. UGC is, thus, empowered to frame regulations for defining qualifications and standard that should ordinarily be required of any person to be appointed in Universities. 10.6 The UGC by Regulation no.F.3-1/2000(PS) dated 4th April 2000 enacted UGC Regulations of 2000. Department of Higher Education in Ministry of Human Resource Development, Government of India, vide letter no.1-32/2006-U. II/U.I(i) dated 31st December 2008, conveyed to Secretary, UGC, New Delhi, the scheme of revision of pay of teachers and equivalent cadres in Universities and Colleges, following the revision of pay scales of Central Government employees on the recommendations of 6th Pay Commission. The Government of India, in terms of said letter, directed that there shall be only three designations in respect of teachers in Universities and Colleges, namely, Assistant Professors, Associate Professors and Professors. It was also intimated that the said Scheme may be 26 LPA no.118/2018 extended to Universities, Colleges and other higher educational institutions coming under purview of State Legislature, provided the State Governments wished to adopt and implement the Scheme subject to the terms and conditions tailored therein. 10.7 In pursuance of letter no.1-32/2006-U.II/U.I(i) dated 31st December 2008, the UGC,in exercise of powers conferred under clause (e) and
(g) of subsection (1) of Section 26 of UGC Act, enacted the UGC Regulations of 2010 in supersession of University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000. It was published in Gazette of India on 28th June 2010 and came into force with immediate effect. It provides that Regulations shall apply to every university established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the UGC, in consultation with the University concerned and every institution deemed to be a university under the Act of 1956. Preamble of UGC Regulations of 2010 envisions issuance of the Regulations of 2010 as being „minimum qualifications‟ for appointment and other service conditions of University and College Teachers aiming at maintaining standards in higher education, besides revision of pay scales.
10.8 Regulation 1.1.1 of UGC Regulations of 2010 says that norms/ regulations of ICAR vis-à-vis teachers in Faculties of Agriculture and 27 LPA no.118/2018 Veterinary Science shall apply. Bearing in mind the controversy in hand, Regulation 1.1.1 is reproduced hereunder:
"1.1.1 For teachers in the Faculties of Agriculture and Veterinary Science, the norms /Regulations of Indian Council of Agricultural Research; for Faculty of Medicine, Dentistry, Nursing and AYUSH, the norms / Regulations of Ministry of Health and Family Welfare, Government of India; for Faculty of Education, the norms / Regulations formulated in consultations with National Council of Teacher Education; for Engineering and Technology, Pharmacy and Management / Business Administration, the norms / Regulations formulated in consultations with All India Council for Technical Education; and the qualifications in the field of rehabilitation and special education at Degree, PG Diploma and Masters level, the norms/Regulations formulated in consultations with Rehabilitation Council of India, shall apply."
10.9 Regulation 1.1.1 of UGC Regulations of 2010 unequivocally provides that norms/Regulations of Indian Council of Agricultural Research (ICAR) shall apply for the Teachers of Agriculture. 10.10 Regulations 2.0.0 relates to pay scales, pay fixation formula and age of superannuation etcetera. Regulation 3.0.0 relates to recruitment and qualifications. Regulation 3.1.0envisions that the direct recruitment to the posts of Assistant Professors, Associate Professors and Professors in the Universities and Colleges shall be on the basis of merit and selections shall be made by the duly constituted Selection Committees as per the provisions made under the Regulations to be incorporated under the Statutes/Ordinances of the concerned university. 10.11 Regulation 3.2.0 says that „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 28 LPA no.118/2018 Physical Education and Sports, Assistant Librarians, Deputy Librarians, Librarians will be those as prescribed by the UGC in the Regulations of 2010.
10.12 The minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master‟s level and qualifying in the National Eligibility Test (NET), or an accredited test (State Level Eligibility Test - SLET/SET), as is provided under Regulation 3.3.0, shall remain for the appointment of Assistant Professors. 10.13 While NET/SLET/SET shall remain minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions, yet the candidates, who are or have been awarded Ph.D. Degree in accordance with UGC Regulations of 2009, shall be exempted from the requirement of minimum eligibility condition of NET/SLET/SET for recruitment and appointment to the post of Assistant Professor or equivalent positions, in Universities/ College/Institutions.
10.14 It is germane to mention here that for the post of Associate Professor (which is the next higher level/post of Assistant Professor) minimum qualification, as is discernible from Regulation 4.3.0 of Regulations of 2010, as prescribed by UGC,is Ph.D. in the concerned/allied/relevant discipline; Master‟s Degree with at least 55% marks; minimum of eight years of experience of teaching and/or research in an academic/research position equivalent to that of Assistant Professor in a University, College or Accredited Research Institution/industry 29 LPA no.118/2018 excluding the period of Ph.D. research with evidence of published work and a minimum of 5 publications as books and/or research policy papers; contribution to education innovation, design of new curricula and courses, and technology - mediated teaching learning process with evidence and having guided doctoral candidates and research students; minimum score as stipulated in Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in the Regulations of 2010.
Here needs a pause before proceedingfurther,in the backdrop of Regulation 4.3.0 of Regulations of 2010 so as to have a brief discussion thereabout given its effect on the present controversy. 10.15 A person, holding the post of Assistant Professor, as per Regulations of 2010, can only be promoted to the post of Associate Professor when he is possessed of Ph.D. Degree. Thus, Ph.D. Degree has been made a fundamental essentiality,by none other than the UGC, for those persons, who hold the post of Assistant Professor, to long for promotion to next higher level, viz. Associate Professor. To this fact situation, attention of this Court was as well invited by Mr M.Y. Bhat, learned counsel representing SKUAST. He said, and there is cogency in his submission, that it was not only SKUAST, but there were a number of Universities in the country that had been prescribing higher qualification of Ph.D. for teaching posts and such universities had prescribed it mandatory because of the reason that Assistant Professors in Universities are always required to guide and teach Ph.D. students and research scholars and it is not possible, neither 30 LPA no.118/2018 feasible for SKUAST to have an Assistant Professor, who does not have Ph.D. Degree and a student, having P.G. with NET, can neither teach a Ph.D. student nor can he guide a Ph.D. student or research scholar. In such circumstances, for Universities it is desirable rather essential requirement to have a candidate, possessing Ph.D. to be considered for appointment as Assistant Professor and not a candidate, possessing P.G. with NET. Thus, SKUAST is no exception. Otherwise also SKUAST - an employer, has every right and cannot be arrested from laying down higher standards or qualifications than those laid down by the Centre or Central Authorities, in the present case UGC, so as to shortlist the candidates with higher qualifications for the post of Assistant Professor-cum- Junior Scientist. Doing so, does not amount to encroachment upon Entry 66 of the Union List.My above view is as well fortified by law laid down by the Supreme Court in the case of State of Tamil Nadu and another v. Adhiyhaman Education & Research Institute and others, (1995) 4 SCC 104, followed in Annamalai University v. Secy. to Govt. Infn. & Tourism Department & others, 2009 (4) SCC 590, and KalyaniMathivanan v. K.V. Jeyaraj and others, 2015 (6) SCC
363. 10.16 Much has been averred on the topic of Regulation 4.4.1 of Regulations of 2010, both before learned Single Bench and Division Bench. By Regulation 4.4.1,minimum qualificationhad been recommended by UGC vis-à-vis the post of Assistant Professor, that isthus profitable to be reproduced infra:
31LPA no.118/2018
"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 anequivalent degree from an accredited foreign university.
ii. Besides fulfilling the above qualifications, the candidate must have cleared theNational Eligibility Test (NET) conducted by the UGC, CSIR or similar test accreditedby 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 theUniversity Grants Commission (Minimum Standards and Procedure for Award ofPh.D. Degree) Regulations, 2009, shall be exempted from the requirement of theminimum eligibility condition of NET/SLET/SET for recruitment and appointment ofAssistant Professor or equivalent positions in Universities/Colleges/Institutions.
iv. NET/SLET/SET shall also not be required for such Masters Programmes indisciplines for which NET/SLET/SET is not conducted."
10.17 From Regulation 4.4.1 of UGC Regulations of 2010, it is crystal clear that it is concerned University, that, at the outset, is to see and ascertain "good academic record" of a candidate, who is to be considered for appointment to the post of Assistant Professor and again it is only the concerned University that will outline, prescribe and define "good academic record" of a candidate and not UGC. Such a candidate should possess minimum 55% marks in Master‟s Degree level.Candidature of any candidate, having less than 55% marks in Master‟s Degree, cannot be entertainedmuchless considered. A candidate, possessing only Master‟s Degree, aspiring to apply for the post of Assistant Professor, should have cleared National Eligibility Test (NET) conducted by UGC, CSIR or similar test accredited by UGC, like SLET/SET. However, those candidates, who possess Ph.D. Degree in pursuance of UGC Regulations of 2009, need not to have NET to their credit. One more facet that needs to be 32 LPA no.118/2018 looked into, is Sub-clause (iv) to Regulation 4.4.1. It provides that even NET/SLET/SET shall not be required for such candidates, who possess Masters Programmes in disciplines for which NET/SLET/SET is not conducted.
10.18 A vehement argument of learned counsel for petitioners is that advertisement notice no.01 of 2017 and SKUAST Statute are in derogation of UGC/ICAR Regulations and that SKUAST is under obligation to follow in letter and spirit UGC Regulations in making appointment to the post of Assistant Professor. I am not convinced by his submissions at all for the wide-ranging reasoning enunciated at different places herein after in this judgement.
It would be apt to mention here that qua factual aspect of the subject-matter of the case, Recommendations of Screening Committee for the post of Assistant Professor-cum-Junior Scientist was produced by learned counsel for the respondents while advancing arguments. Perusal whereof reveals that even some of the candidates, who possess Ph.D. have been shown as "Not eligible" as according to SKUAST the Degree produced by such candidates was found "not relevant". The recommendations also divulge that certain candidates, who possess both Ph.D. and NET, have also been shown as "Eligible".
10.19 There is a meat in the submissions of Mr Z.A.Shah, learned senior counsel, Mr AltafHaqani and Mr M.Y.Bhat, learned counsels representing respondents, that in terms of UGC Regulations of 2000, all higher qualified candidates who had submitted Ph.D. thesis upto 33 LPA no.118/2018 31st December 1993 were not required to have qualified NET and the said date was subsequently extended on 31st December 2002 vide 1st Amendment of 2002 and, therefore, since the year 2000, highly qualified candidates, having Ph.D. Degree,were not required to qualify NET for teaching posts. However, in terms of Amendment of 2002, if a candidate, who had submitted the thesis, but, had not qualified Ph.D. Degree, was required to qualify the same even after appointment and in case he would fail to qualify if, he was required to pass NET. Thus, in terms of Amendment, even simple P.G. without having qualified NET,was also eligible for appointment in case such candidates had submitted Ph.D. thesis only by or before 31st December 2002. Nevertheless, in terms of 2nd Amendment - 2006 Regulations, NET was exempted for teaching having Ph.D. Degree. Their another submission is that NET is not a qualification but it is a simplicitertest that had to be passed by candidates, who would compete the process of selection for teaching posts. However, the universities had full freedom to prescribe qualification either P.G. only or higher than P.G. and accordingly, maximum leading Universities of the country had prescribed minimum required qualification as Ph.D. and some of the Universities prescribed minimum required qualification as P.G. with NET. The Universities,that prescribed minimum required qualification as Ph.D., followed said Regulations from time to time and Ph.Dthe candidates were not required to qualify NET because of their highest qualification if they had submitted thesis of Ph.D. Degree firstly upto 34 LPA no.118/2018 31st December 1993 as per Regulations of 2000 and afterwards upto 31st December 2002 as per 1st Amendment Regulation and thereafter they were fully exempted from NET. In terms of 3rd Amendment Regulation 2009, it is contended that the Ph.D. Degree holders, who had obtained Ph.D. Degree as per Regulations of 2009, were exempted and those who had obtained Ph.D. Degree as per earlier Regulations, were not exempted from NET. As a result of which, hue and cry was raised throughout the country by Ph.D. holders, who had obtained Ph.D. Degree in terms of earlier Notifications and a lot of litigationpopped up. Ultimately UGC reconsidered the matter and came up with new regulations, viz. UGC Regulations of 2010. In terms whereof, if any University fails or contravenes those Regulations, such University could be withheld from University Grants, proposed to be made out of the funds of UGC. As per Clause 3 of Regulations of 2010, discretion, however, was left with Universities either to apply said Regulations or not to apply the same and in case any University would not apply the Regulations, then such University could not be given the grants by UGC. Besides that, in terms of Clause 1.1.1, which holds essence in present case, provides that for teachers in the faculties of Agriculture and Veterinary Sciences, the norms/regulations prescribed by ICAR shall hold the field. Thus, ICAR was given clear authority to prescribe qualification or make alteration for prescription of norms for teaching posts in Agriculture Universities.
35LPA no.118/2018 10.20 Learned counsels for respondents also insist that in terms of UGC Regulations of 2010, for the posts of Professor and Associate Professor, Ph.D. Degree has been made mandatory qualification vide Regulation 3.7.0 and 3.8.0 and, therefore, for such higher posts including post of Assistant Professor, the Ph.D. Degree has been prescribed as mandatory qualification and as corollary thereof, NET has become irrelevant and for such higher posts NET has no relevance at all. It is contended that UGC has issued Regulations of 2016 enforceable with effect from 11th July 2016, which provide that candidates, who were registered for Ph.D. programme, prior to 11th July 2009, shall be governed by the then Regulations and such candidates shall be exempted from requirement of NET subject to the fulfilment of certain conditions, which include that Ph.D. Degree should have been awarded in regular mode only; evaluation of Ph.D. thesis should be made by two external examiners; open Ph.D. viva- voce of candidate has been conducted; candidate has published two research papers from his/her Ph.D. work, out of which, at least, one must be in referred journal; and candidate has made, at least, two presentations in conferences/seminars, based on his/her Ph.D. work. 10.21 Learned counsels appearing for respondents have also invited attention of this Court to newly enacted Regulations of 2018. I have gone through the said Regulations of 2018.Perusal whereof makes it known that it (University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance 36 LPA no.118/2018 of Standards in Higher Education) Regulations, 2018) has been issued on 18th July 2018.The Regulations of 2018 have superseded "UGC Regulations on Minimum qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010"
(Regulation no.F.3-1/2009 dated 30th June 2010) together with all amendments made therein from time to time. Again, in terms of Regulations of 2018, NET has been exempted qua candidates who have been awarded Ph.D. Degree in accordance with Regulations of 2009 or Regulations of 2016.Regulations of 2018 have made Ph.D. Degree compulsory for direct recruitment to the post of Assistant Professors in Universities with effect from 1st July 2021 it would be apposite to have a brief read through thereof. Regulations of 2018 also stipulate that any promotion to the post of Assistant Professor (Selection Grade/Academic Level 12) in Universities shall be made amongst the Assistant Professors, who possess Ph.D. Degree. And thus, it is deducible therefrom that Assistant Professors, who are simpliciter P.G. with NET, will not be considered for promotion to the post of Assistant Professor (Selection Grade/Academic Level) or to any other higher level/posts. Even for promotion to the post of Associate Professor or Professor, Ph.D. is mandatory qualification. In such circumstances, now Ph.D. Degree has been made mandatory qualification by UGC and not a subsidiary one. In that view of matter, laying down Ph.D. Degree as mandatory qualification by SKUAST 37 LPA no.118/2018 for the post of Assistant Professor-cum-Junior Scientist,cannot be faulted with.
10.22 There is also a submission on behalf of Mr Shah, learned senior counsel, that in the Statutes framed by SKUAST, Schedule-I to Chapter-II appended to the Statutes, prescribe the qualification for the post of Assistant Professor-cum-Junior Scientist in the following manner:
Designation Qualification for direct recruitment Assistant i) Master‟s degree with minimum 55% marks or Professor/ Jr. equivalent grade in OGPA or equivalent postgraduate Scientist/Subject qualification in the concerned subject. Matter Specialist ii) Ph.D Degree (with course work) in concerned subject (SMS) (Pay Band as prescribed by the UGC Regulations 2009 (Ph.D is Rs.15,600-39,100 relaxable for candidates holding Post graduation degree with Academic in Veterinary Science/M. Tech degree in relevant field Grade Pay of Agricultural Engineering, along with one publication Rs.6000/-) UGC in NAAS rated referred Journal and NET) Scale 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 10.23 His submission is that qualification(s), prescribed in Advertisement Notice no.01 of 2017 dated 13th March 2017, for the post of Assistant Professor-cum-Junior Scientist, are similar to the one prescribed in Schedule I to Chapter II of SKUAST as quoted above. He asserts that SKUAST has rightly prescribed qualification and appellants, being ineligible, cannot claim consideration for the post of Assistant Professor-cum-Junior Scientist. It is averred by him that writ petitioners / appellants proceed on an assumption that they are eligible 38 LPA no.118/2018 for the post of Assistant Professor-cum-Junior Scientist as per UGC norms and as per Clause 5 of Statutes of SKUAST; post of Assistant Professor-cum-Junior Scientist is also required to act as "Junior Scientist" whereas UGC Regulations of 2009/2010 and norms prescribed by ICAR do not provide for the post of"Assistant Professor-cum-Junior Scientist" and Ph.D. qualification prescribed by SKUAST for the said post is with a view that a person, holding Doctorate in any subject, is competent to guide students for research, unlike a person, who is only a post graduate. SKUAST Statutes, therefore, while prescribing qualifications have taken into consideration appointment as "Junior Scientist-cum-Assistant Professor" as the basis for inviting applications. He has also stated that communication dated 2nd August 2010 mentions adoption of UGC Regulations and that there is no material on record to show that SKUAST has adopted these Regulations. He insists that UGC Regulations of 2010 per se would not apply because Regulation 1.1.1 empowers ICAR to frame norms and regulations for Agriculture and Veterinary Science Universities. Qualifications prescribed by SKUAST Statutes and Advertisement Notice are not only meant for the post of "Assistant Professor" but also for the post of "Junior Scientist" and that SKUAST has authority to prescribe qualifications under Section 6(11) of SKUAST Act 1982 read with Section 39(4) of the Act and Schedule I to Chapter II (appointment of officers and teachers of the University). SKUAST has followed the Act and Statutes and therefore, Advertisement Notice is strictly in accordance 39 LPA no.118/2018 with directions of law and as a result thereof, process initiated by SKUAST cannot be faulted.
10.24 Submission of Mr AltafHaqani, representing respondent no.5, is that in terms of communication no.23(46)/2010-EQR(Edn) dated 26th December 2011, ICAR specifically waived off NET essentiality for candidates, holding Ph.D. Degree under UGC Regulations of 2009 and later communication dated 9th March 2017 as well provides for NET exemption for those candidates who were registered prior to UGC Regulations of 2009 dated 11th July 2009, subject to certain conditions. The said communication, it is contended, is in partial modification of earlier communication dated 26th December 2011 and that amendment / modification had been made in view of UGC Regulations of 2016 as by virtue of Regulation 3 of Regulations of 2016, UGC by way of amendment, inter alia, of proviso under Regulation 4.4.1 provided for exemption of NET/SLET/SET for recruitment and appointment to the post of Assistant Professor. Mr Haqani states that in Advertisement Notice in question, SKUAST has laid down same qualifications as were prescribed by ICAR in view of stipulations provided by Regulation 1.1.1 of UGC Regulations of 2010. Ph.D. Degree course prescribed by SKUAST is required to be appreciated by this Court, as said by Mr Haqani, in the context of objects/functions of SKUAST as laid down in Sections 5&6 of SKUAST Act 1982,envisaging advancement of learning and prosecution of research, which assignment could be discharged by a candidate having obtained doctoral degree based on research. 40 LPA no.118/2018 Dispensation of NET by ICAR as also UGC also deserves to be appreciated in this context especially when the award thereof is not a qualification but only testifies passing of a test by a candidate which admittedly could not be a substitute to requirement of Ph.D. Degree. Mr Haqani, while referring to UGC Regulations of 2000, 2002, 2006, and 2009, has stated that the amending process in Regulations gradually reducing/removing essentiality of NET requirement as minimum qualification required for the post of Lecturer/Assistant Professor and consequential emphasis of possession of doctoral degree by the candidates, finally culminated as on date to the Notification of amendment Regulations 2016.
10.25 Mr Haqani, to cement his advanced arguments, invited attention of this Court to a judgement rendered by the Supreme Court in PGF Ltd v. Union of India (2015) 13 SCC 50, more particularly with respect to the certain guidelines that should be noted when vires of a legislation is challenged. Hence, it is relevant to go through that as that is a guiding factor for squaring off akin litigations that have and/or may pop up. It underlines observance of certain precautions whenever vires of provision of law is raised before the Court by way of a writ petition. On very many occasions, a challenge to a provision of law, as to its constitutionality is raised aiming at to thwarting applicability and rigour of those provisions and as an escape route from applicability of those provisions of law and thereby creating an impediment for authorities and institutions concerned. Such challenges always result in prolongation of litigation enabling such 41 LPA no.118/2018 unscrupulous elements to take advantage of pendency of such litigation preferred by them and thereby gainunlawful advantage, to the detrimental disadvantageous position of others. In effect, such attempts made by invoking extraordinary jurisdiction of the writ courts of many such challenges, mostly result in rejection of such challenges. However, concurrently, while taking advantage of the long time-gap involved in the pending proceedings, such unscrupulous litigants even while suffering the rejection of their stand at the end as to the vires of the provisions, always try to wriggle out of their liabilities. It is, therefore, imperative and worthwhile to examine at the threshold as to whether such challenges made are bona fide and do require a consideration at all by the writ courts by applying the principle of "lifting the veil" and as to whether there is any hidden agenda in perpetrating such litigation. With that view, some of the criteria are to be kept in mind whenever a challenge to a provision of law is made before the court. The Court can, in the first instance, examine whether there is a prima facie strong ground made out in order to examine the vires of provisions raised in writ petition. The Court can also note whether such challenge is made at the earliest point of time when the Statute came to be introduced or any provision was brought into the statute book or any long time-gap exists as between the date of enactment and the date when the challenge is thrown thereto. It should also be noted as to whether the grounds of challenge based on the facts pleaded and the implication of the provision really has any nexus apart from the grounds of challenge 42 LPA no.118/2018 made. With reference to those relevant provisions, the Court should be conscious of the position as to the extent of public interest involved when the provisions operate the field as against the prevention of such operation. Even if the writ court is of the view that challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provisions in the larger interests of the public. An attempt has been made only to set out some of the basic consideration to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds for consideration while considering a challenge on the ground of vires to a statute or the provision of law made before it for the purpose of entertaining it and when such writ petitions are entertained, those petitions should be disposed of as expeditiously as possible and on a time-bound basis, so that legal position is settled one way or the other.
11. Taking above factors in mind, let me now advert to the case in hand. Issue/Question no.1, referred to this Bench, relates to applicability of UGC Regulations of 2010 to the posts of Assistant Professors-cum- Junior Scientist to be filled up by SKUAST.
11.1 SKUAST has its own Statute, viz. Sher-e-Kashmir Universities of Agricultural Sciences Technology Act,1982 (for short "Act of 1982"). It received the assent of the Governor on 1st April 1982.It was published vide Notification/SRO 306 dated 27th July 1982. First day of August 1982 was appointed date for its coming into force. 43 LPA no.118/2018 11.2 The Act of 1982 is to provide for establishment and incorporation of Sher-e-Kashmir Universities of Agricultural Sciences and Technology in the Jammu and Kashmir. Subsection (21) of Section 2 of the Act of 1982, provides that a "teacher" means a person appointed or recognized by the University for the purpose of imparting instructions or conducting and guiding research or extension education programme and includes the person who may be declared by the Statutes or Regulations to be a teacher.
11.3 Section 5 relates to objections of the University. It says that SKUAST shall be: imparting education in agriculture and other allied branches of learning and scholarship; furthering advancement of learning and prosecution of research in agriculture, animal husbandry and other allied branches with particular emphasis on temperate and cold desert agriculture; undertaking extension education of such sciences for benefit of rural people of the State. Section 6, inter alia, envisages that SKUAST shall determine qualification for teachers and to recognise persons as qualified to give instructions or to carry out research and extension education in agriculture. In terms of Chapter- III to Act of 1982, SKUAST shall have authorities, like University council, Board of Management, Academic Council, Research Council, Extension Education Council, Faculties including Post Graduate studies and their Board of studies. The Academic Council of SKUAST, in terms of Section 15, shall have poser to make regulations consistent with the Act of 1982 and Statutes relating to all academic matters and the regulations made, amended or repealed shall 44 LPA no.118/2018 be referred to Chancellor through Board of Management as soon as they are passed and Chancellor may within a period not exceeding four weeks, annul any of these regulations after giving due notice and opportunity for any explanation and that the decision of Chancellor shall be final. Subsection (3) of Section 15 envisions that Academic council shall have power to make recommendations to the Board regarding qualifications to be prescribed for teachers in the University.
11.4 Chapter VII of the Act of 1982 relates to providing of Statutes and Regulations with respect to various matters and affairs of SKUAST, including classification, qualification and manner of appointment, terms and conditions of services and duties of teachers and other non- teaching staff of SKUAST; constitution of selection committee for appointment of teachers and staff. It was in consequence thereof, that Recruitment Rules/Scheme for appointment of officers and Teachers of the University have been enacted by SKUAST.Schedule-I to Chapter-II appended to the Statutes, prescribe the qualification for the post of Assistant Professor-cum-Junior Scientist in the following manner:
Designation Qualification for direct recruitment Assistant Professor/ iv) Master‟s degree with minimum 55% marks or Jr. Scientist/Subject equivalent grade in OGPA or equivalent Matter Specialist postgraduate qualification in the concerned subject. (SMS) (Pay Band v) Ph.D Degree (with course work) in concerned Rs.15,600-39,100 subject as prescribed by the UGC Regulations 2009 with Academic (Ph.D is relaxable for candidates holding Post Grade Pay Rs.6000/-) graduation degree in Veterinary Science/M. Tech UGC Scale degree in relevant field of Agricultural Engineering, along with one publication in NAAS rated referred Journal and NET)
vi) NET or at least two full length publications having a NAAS rating not less than 4, on the last date of 45 LPA no.118/2018 submission of application.
OR
iv) Master‟s degree with 55% marks or equivalent grade in OGPA or equivalent postgraduate qualification in the concerned subject.
v) Ph.D Degree (without course work) in the concerned subject
vi) NET 11.5 It may not be out of place to mention here that, in view of verbose discussion made herein before, qualification(s) prescribed in Advertisement Notice no.01 of 2017 dated 13th March 2017, for the post of Assistant Professor-cum-Junior Scientist are similar to the one prescribed in Schedule I to Chapter II of SKUAST as quoted above.
Ph.D. Degree is, thus, mandatory qualification in SKUAST for appointment to the post of Associate Professor. It is made clear here that Ph.D. Degree, for all practical purposes, is higher qualification than Post Graduate Degree.
11.6 There is a lucid submission on behalf of learned counsel representing respondent-SKUAST that SKUAST is neither being given any grants by UGC nor is the Statute applicable in SKUAST,contradictory to the Regulations of UGC and that in terms of Regulation 1.1.1 of Regulations of 2010, ICAR has been given authority to prescribe norms/regulations and the same has been done in terms of ICAR Notifications dated 26th December 2011 and 9th March 2017, and therefore, question of adopting UGC Regulations of 2010 does not arise at all. He has also strenuously stated that SKUAST has prescribed higher qualification of Ph.D. as mandatory qualification whereas in terms of UGC Regulations of 2010, P.G. plus NET is 46 LPA no.118/2018 minimum required qualification, which is not qualification prescribed by ICAR and SKUAST. His submissions are rational and cannot be contradicted.
11.7 Submission of learned counsels, representing respondents, is that in terms of communication no.23(46)/2010-EQR(Edn) dated 26th December 2011, the ICAR has specifically waived off NET essentiality for the candidates, holding Ph.D. Degree under UGC Regulations of 2009 and later communication dated 9th March 2017 as well provides for NET exemption for those candidates who had been registered prior to UGC Regulations of 2009 dated 11 th July 2009, subject to certain conditions. The said communication is in partial modification of earlier communication dated 26th December 2011 and amendment/ modification has been made in view of UGC Regulations of 2016 as by virtue of Regulation 3 of Regulations of 2016, the UGC by way of amendment, inter alia, of proviso to Regulation 4.4.1has provided for exemption of NET/SLET/SET for recruitment and appointment to the post of Assistant Professor. In Advertisement Notice in question, SKUAST has laid down same qualifications as have been prescribed by ICAR in view of stipulations provided in Regulation 1.1.1 of UGC Regulations of 2010. The Ph.D. Degree course prescribed by SKUAST, is required to be appreciated by this Court, in the milieu of objects/functions of SKUAST as laid down in Sections 5&6 of SKUAST Act 1982, envisaging advancing of learning and prosecution of research, that assignment could be discharged by a candidate having obtained doctoral degree based on 47 LPA no.118/2018 research and not by Post Graduate candidate. Dispensation of NET by ICAR as also UGC also deserves to be appreciated, in this respect, especially when the award thereof is not a qualification but only testifies passing of a test by a candidate which admittedly could not be a substitute to requirement of Ph.D. Degree.
11.8 There is substance in the submission that amending process in Regulations of 2000, 2002, 2006 and 2009, gradually reducing/ removing essentiality of NET requirement as minimum qualification required for the post of Lecturer/Assistant Professor and consequential emphasis of possession of Doctoral degree by candidates, finally culminated as on date to the Notification of amendment Regulations 2016.
11.9 One more submission of Mr M. Y. Bhat, during course of argumentation, was as to enactment of J&K Reorganisation Act, 2019.He invited attention of this Court to recently passed enactment by the Parliament of India, viz. J&K Reorganisation Act, 2019. By that as well, SKUAST Act of 1982 (figuring at Serial no.140 amongst the State Acts including Governor's Acts which shall remain in force - Table 4 of the Act of 2019) has been kept in force in Union Territory of J&K and Union Territory of Ladakh and according to him, has, in essence, received the assent of the President of the India, and therefore, SKUAST Act of 1982 has approval and seal of the Parliament of India and UGC Regulations framed by a statutory body cannot supplant or override the decision of the Parliament of 48 LPA no.118/2018 India.Nevertheless, discourse relating to subject-matter of the instant case is to be circumscribed within the boundaries of Reference.
12. It would not be incongruous to say here that the Indian Constitution contains a very elaborate scheme of distribution of power and functions between the Centre and the States. The framers of the Constitution took note of the developments in the area of Federal- State allocation of powers in other federations. They surveyed the area of the functioning of the modern government. They noted the modern scientific and technological developments as well as the contemporary political philosophies, and given these factors, they apportioned functions between the Centre and the States in a way so as to suit the peculiar circumstances and exigencies of the country. The obvious tendency of the Indian Constitution is towards centralisation within a federal pattern and framework. The scheme of the Constitution is to secure a constitutionally strong Centre having adequate powers both in extent and nature so that it can maintain and protect the unity and integrity of the country. Under the Constitution, there is a three-fold distribution of legislative powers between the Union and the States, made by three Lists in the Seventh Schedule of the Constitution. 12.1 The Indian Constitution seeks to create three functional areas:
(i) An exclusive area for the Centre;
(ii) An exclusive area for the States; and
(iii) A common or concurrent area in which both the Centre and the State may operate simultaneously, subject to the overall supremacy of the Centre.
12.2 Article 246 of the Constitution demarcates the matters in respect of which Parliament and State Legislature may make laws. Article 49 LPA no.118/2018 246(1) confers on Parliament an „exclusive power‟ to make laws with respect to any of the matters in the Union List. The entries in the List are such as need a uniform law for the whole of country. The States are not entitled to make any law in this area. Article 246 (1) opens with the words, "Notwithstanding anything in clauses (2) and (3). This means that if any matter is within the exclusive competence of the Centre, i.e. List I, it becomes a prohibited field for the States.Article (3) confers an exclusive power on the States to make laws with respect to the matters enumerated in the State List. These are matters which admit of local variations and, from an administrative point of view, are best handled at the State level and, therefore, the Centre is debarred from legislating with respect to these matters. Article 246 (3) opens with the words, "subject to clauses (1) and (2). Thus, if a particular matter falls within the exclusive competence of the States, i.e. Lit II, that represents the prohibited field for the Centre. A unique feature of the Indian scheme of division of powers is the existence of a large concurrent field for the Centre and the States. Article 246 (2) confers a concurrent power of legislation on both the Centre and the States concerning the maters enumerated in the Concurrent List.
12.3 Article 246 (2) runs as follows:
"Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in the List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List")."50 LPA no.118/2018
12.4 Allocation of subjects to the lists is not by way of scientific or logical definition but by way of a mere enumeration of broad categories. The general idea underlying the Concurrent List is that there may be subjects on which Parliament may not feel it necessary or expedient to initiate legislation in the first instance because these matters may not have assumed much national importance. A State may, therefore, make necessary legislation with respect to any matter in the Concurrent List. But, if at any time, any of these matters assumes a national importance, and requires to be dealt with on a uniform all- India basis, then the Centre can step in and enact necessary legislation. When an entry is in general terms in List II and part of that entry is specific terms in List I, the entry List I takes effect notwithstanding the entry in List II. Certain matters, it was felt, could not be allocated exclusively either to the Centre or the States, and though the States might legislate with respect to them, it was also necessary that the Centre should also have a legislative jurisdiction therein in order to enable it, if necessary, to secure uniformity in the law throughout the country, to guide and encourage State effort, and to provide remedies for mischief arising in the State sphere but whose impact may be felt beyond the boundaries of a single State. Instances of the first are provided by the Indian Codes of Civil and Criminal Laws. These laws are at the basis of civil and corporate life of the country and have been placed in the Concurrent List so that necessary uniformity can be preserved therein. Illustrations of the second are provided by such matters as labour legislation, and of the third by 51 LPA no.118/2018 legislation for the prevention and control of epidemic diseases. Further, even when the Centre makes a law for the whole country on a matter in the Concurrent List, a State may also make, if necessary, supplementary laws on that matter to provide for special circumstances within the State. On the whole, therefore, the Concurrent List makes the scheme of distribution of powers somewhat flexible. The Centre can intervene in the area without any need to amend the Constitution. It permits of diversity along with a unity of approach. The phraseology of the various clauses of Article 246 is such as to secure the principle of Union supremacy. 12.5 Entry 66 in List-I provides for coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Prior to 42nd Amendment, education including Universities subject to the provisions of the Entries 63, 64, 65, 66 of List-I and Entry 25 of List III, was shown in Entry 11 of the List II - State List. By 42ndAmendment of Constitution with effect from 3rdJanuary, 1977 Entry 11 of List II-State List was omitted and was added as Entry 25 of List-III. Presently aforesaid provisions read as follows:
"Seventh Schedule List I - Union List Entry 66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
List III - Concurrent List Entry 25.- 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."52 LPA no.118/2018
12.6 Article 254 relates to repugnancy of Law made by the State with the law made by the Parliament.According to Article 254 (1) if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2) of Article 254, the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, shall be void. In terms of Article 254 (2) of the Constitution it is provided that where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. However, it is provided that nothing in this clause (2) of Article 254 shall prevent the Parliament from enacting at any time any law relating to same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
12.7 The impact qua inconsistency between the Legislation made by the Parliament and the State Legislature on the subject covered by List III has been decided by the Supreme Court in numerous cases. Whether 53 LPA no.118/2018 there is an apparent repugnance or conflict between Central and State laws occupying the same field and cannot operate harmoniously, in each case the Court has to examine whether the provisions occupy the same field with respect to one of the matters enumerated in the Concurrent List and whether there exists repugnancy between the two laws. Repugnancy arises when both the laws are fully inconsistent or are absolutely irreconcilable and when it is impossible to obey one without disobeying the other. The repugnancy would arise when conflicting results are produced when both the statutes covering the same field are applied to a given set of facts. But the court has to make every attempt to reconcile the provisions of the patently conflicting laws and court would endeavour to give harmonious construction. The purpose to determine inconsistency is to ascertain the intention of Parliament that would be gathered from a consideration of the entire field occupied by the law. The proper test would be whether effect can be given to the provisions of both the laws or whether both the laws can stand together. The Supreme Court in the case of Adhiyhaman Education & Research Institute and others (supra), has observed that Entry 66 of List I of the Seventh Schedule has remained unchanged from inception and that Entry 11 was taken out from List II and was amalgamated with Entry 25 of List III.
"12. The subject "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions" has always remained the special preserve of Parliament. This was so even before the Forty-second Amendment, since Entry 11 of List II even then was subject, among others, to Entry 66 of List I. After the said Amendment, the constitutional 54 LPA no.118/2018 position on that score has not undergone any change. All that has happened is that Entry 11 was taken out from List II and amalgamated with Entry 25 of List III. However, even the new Entry 25 of List III is also subject to the provisions, among others, of Entry 66 of List I. It cannot, therefore, be doubted nor is it contended before us, that the legislation with regard to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of Parliament. What was contended before us on behalf of the State was that Entry 66 enables Parliament to lay down the minimum standards but does not deprive the State legislature from laying down standards above the said minimum standards. We will deal with this argument at its proper place. xxx xxxxxxx
41. What emerges from the above discussion is as follows:
(i) The expression „coordination‟ used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme orplan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make „coordination‟ either impossible or difficult.
This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.
(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de- recognise or disaffiliate an institution for not satisfying the 55 LPA no.118/2018 standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally."
(emphasis supplied) 12.8 The Supreme Court has, thus, in the case of Adhiyhaman Education & Research Institute (supra) held that the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or Central authority to shortlist applicants and doing so does not amount to encroachment upon Entry 66 of Union List or making a law repugnant to Central Law. The Supreme Court in Dr.PreetiSrivastava and another v. State of M.P. and others (1999) 7 SCC 120, has said that both the Union as well as the States have the power to legislative on education subject to Entry 66 of List I, which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has been held to have right to control education, so long as the field is not occupied by Union legislation and does not conflict with Union legislation. 12.9 The Supreme Court has in unambiguous terms held that UGC Regulations are not applicable to the Universities, Colleges and other higher educational institutions coming under the purview of the State Legislature unless the State Government „wish' to adopt and implement the scheme, subject to the terms and conditions contained therein. From the pleadings of the parties in the present case, it does not come to fore that UGC Regulations of 2010 have been adopted and implemented by SKUAST inasmuch as SKUAST Act of 1982 has not been amended in terms of UGC Regulations of 2010 nor has any 56 LPA no.118/2018 action been taken by UGC against SKUAST for not complying with the recommendations of UGC. In such circumstances, applicability of UGC Regulations of 2010 vis-à-vis appointment to the post of Assistant Professor-cum-Junior Scientist in SKUAST does not arise at all.
12.10 The Supreme Court in KalyaniMathivanan case (supra), has, after holding that UGC Regulations of 2010 are not applicable to State Universities unless adopted, made it clear that UGC Regulations of 2010 are directory for Universities, Colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement the scheme and as a corollary UGC Regulations, having not been adopted by the concerned State, the question of conflict between State legislation and Statutes framed under Central Legislations does not arise. The Supreme Court upheld the judgement of the Bombay High Court as regards Regulations of 2010 being recommendatory in nature insofar as it relates to Universities and Colleges under the State Legislation. Same is true about the present case.
12.11 It is apposite to mention that paragraph 8(p)(i) and (v) of Appendix-I dated 31st December 2008 is important to the looked into, that for facility of reference is reproduced infra:
"8. Other terms and conditions:
(a) .......
(p) Applicability of the Scheme:
(i) This Scheme shall be applicable to teachers and other equivalent cadres of Library and Physical Education in all the Central Universities and Colleges there-under and the Institutions 57 LPA no.118/2018 Deemed to be Universities whose maintenance expenditure is met by the UGC. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Regulations to be framed by the UGC in this behalf. Universities implementing this Scheme shall be advised by the UGC to amend their relevant statutes and ordinances in line with the UGC Regulations within three months from the date of issue of this letter.
.....
(v) This Scheme may be extended to universities, Colleges and other higher educational institutions coming under the purview of State legislatures, provided State Governments wish to adopt and implement the Scheme"
12.12 What emerges from above quoted paragraph 8(p)(i) and (v) of Appendix-I dated 31st December 2008 is that the Scheme of Regulation is applicable to teaching staffs of all Central Universities and Colleges thereunder and the institutions deemed to be Universities whose maintenance, expenditure is met by UGC. However, UGC Regulations of 2010 are not applicable to the teaching staff of Universities, Colleges and other higher educational institutions coming under the purview of Legislature. And same is true about SKUAST. It is also emphatically made clear that Regulations of 2010 will extend to such Universities, Colleges and other higher educational institutions coming under the purview of State Legislatures, which wish to adopt and implement Regulations of 2010. It is fervent statement of Mr M. Y. Bhat, learned counsel representing SKUAST, that SKUAST is not being given any grants by UGC and, thus, UGC Regulations do not apply to SKUAST.As pointed out herein above as well that UGC Regulations of 2010 have not been adopted and implemented by SKUAST inasmuch as SKUAST Act of 1982 has not been amended in terms of UGC Regulations of 2010 nor has any action been taken by UGC against 58 LPA no.118/2018 SKUAST for not complying with the recommendations of UGC. Resultantly, applicability of UGC Regulations of 2010 vis-à-vis appointment to the post of Assistant Professor-cum-Junior Scientist in SKUAST does not arise at all.
In that view of the matter and for the foregoing discussion, I respectfully differ with the opinion of Hon‟ble Mr Justice Sanjeev Kumar. As a corollary the answer to question/issue no.1 is that:
"Regulation 4.4.1 of the UGC Regulations on Minimum Qualification for Appointment of Teachers and other academic staff in Universities and Colleges and measures for the Maintenance of Standards in Higher Education, 2010, are not applicable for appointment of "Assistant Professor-cum-Junior Scientist" in Sher-i-Kashmir University of Agricultural Sciences and Technology."
13. Now let me go through Question/point no.2, referred to this Bench. The second question is:
(ii) Whether the UGC Regulations, 2010, more particularly, Regulation 4.4.1, which lays down the Minimum Qualification for Appointment and other service conditions of the Universities and Colleges Teachers etc. for Maintenance of Standards of Higher Education, 2010, are applicable to the Faculty of Agriculture and Veterinary Science of the Agricultural Universities like SKAUST-K in view of the endorsement of these Regulations by the Govt. of India, Ministry of Agricultural vide its F.No. 1(01)/2009-Per-IV to the State Government to consider adopting and implementing the same in respect of the State Agricultural Universities?
13.1 As has been made clear herein before in prolixity, UGC Regulations of 2010 are not applicable to SKUAST as these are recommendatory in nature and not mandatory. Endorsement no.1(01)/2009-Per.IV dated 2nd August 2010 vis-à-vis application of Regulations of 2010, 59 LPA no.118/2018 has been referred to in Question no.2. It would be, thus, advantageous, for ready reference and glance, to reproduce the said endorsement/communication herein below:
"F.No. 1(01)/2009-Per.IV Govt. of India Ministry of Agriculture, Department of Agricultural Research & Education, KrishiBhawan, New Delhi.
Dated, the 2nd August, 2010 To The Chief Secretaries of all State Governments.
Subject: UGC regulations on minimum qualifications for appointment of teachers and other academic staff in State Agricultural Universities- reg.
Sir, I am directed to invite reference to this department‟s letter of even no. dated 13th March, 2009 vide which the scheme of revision of pay as notified by the MHRD, Dept. of Higher Education vide letter No.1032/2006-U.II/U.1 (i) and 1032/2006-U.II/U.1(ii) for teachers and equivalent cadre and administrative posts in Universities was endorsed to the Chief Secretaries of all State Governments to consider to adopt and implement the scheme in the State Agriculture Universities (SAUs). The UGC vide its notification No. 3-1/2009 dated 30th June, has notified 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. These regulations are available on the website of the UGC. According to para 1.1.1. of the annexure to UGC regulations vide 3-1/2009 dated 30th June, 2010, the norms/regulations issued by ICAR shall apply for teachers in the faculties of agriculture and veterinary science. Accordingly, it has been decided to endorse the aforesaid. UGC regulations to the state governments to consider adopting and implementing in respect of state agricultural universities.
This issues with the approval of Secretary, DARE, DG, ICAR.
Yours faithfully, Sd/-
(Vijay Singh) Under Secretary to the Govt. of India"
13.2 Above quoted communication, addressed to Chief Secretaries of all the States, does not require them, but, request them to „consider' adopting and implementing UGC Regulations in respect of State Agricultural Universities.On the face of it, there is no clear- 60 LPA no.118/2018 cutdirectiveto the States, or say J&K, to compulsorily adopt and implement UGC Regulations in letter and spirit. The language contained in afore-quoted communication is clear and conspicuous. It does not bind or force the States, or say SKUAST, to adopt and implement UGC Regulations. It only requests the States, including J&K, to consider adoption and implementation of UGC Regulations. As I have already said elsewhere herein before, while answering Question/Issue no.1, that Regulations of 2010 are recommendatory in nature as SKUAST has not adopted or implemented the same. UGC Regulations will not ipso facto apply to the Faculty of Agriculture and Veterinary Science of the Agricultural Universities, like SKAUST-K, unless the same are adopted and implemented by them. And once it is adopted, the Statute is to be amended appropriately.
In that view of matter, I respectfully differ with the opinion/ observation(s) of Hon‟ble Mr Justice Sanjeev Kumar and I concur with the observations and opinion of Hon‟ble Mr Justice Rashid Ali Dar (now retired).
As a sequel thereof, answer to Question/Issue no.2 is that:
"UGC Regulations are not applicable to SKUAST."
14. Now there remains Question/Issue no.3, that is:
(iii) Whether the Statute of SKAUST-K providing eligibility qualification contrary to the one prescribed by the UGC Regulations duly endorsed by the Govt. of India, Ministry of Agricultural to all the Agricultural Universities to adopt and implement the same in respect of the Agricultural Universities in the State is sustainable in law and if not whether the same can be held to be bad even if there is no specific challenge laid to such Statute in the writ petition.61 LPA no.118/2018
14.1 As regards question/issue no.3, I would like to say that endorsement bearing No.1(01)/2009-Per.IV dated 2nd August 2010, does not entail any direction to the States, or J&K, to compulsorily and mandatorily adopt and implement UGC Regulations. It only requeststhe States to consider adopting and implementing UGC Regulations. The UGC Regulations are recommendatory in nature and, therefore, neither the State Legislatures nor the State Government/s that includes SKUAST, are bound to accept the same. Non-adoption of directory UGC Regulations, therefore, does not render SKUAST Statute/Rules invalid or unconstitutional. I have already referred to observations and findings of the Supreme Court in the case of KalyaniMathivanan (supra) that UGC Regulations are not applicable to the Universities, Colleges and other higher educational institutions coming under the purview of the State Legislature unless the State Government wish to adopt and implement the scheme. As has been discussed elaborately and comprehensively herein before that SKUAST Statute, Rules and Regulations, prescribing qualification(s) for appointment to the post of Assistant Professor-cum-Junior Scientist, are not contrary to the UGC Regulations. The UGC Regulations are recommendatory in nature. These Regulations are not applicable to the Universities, Colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the concerned Government to adopt and implement the scheme and if the UGC Regulations have not been adopted by SKUAST, the question of 62 LPA no.118/2018 conflict between SKUAST Statute, Rules,SKUAST Regulations and the UGC Regulations of 2010, do not arise at all.
In that view of the matter, answer to Question/Issue no.3 is that:
"Statute of SKAUST-K, providing eligibility qualification is not contrary to the UGC Regulations and therefore, is sustainable in law and cannot be held bad in law."
15. For all that has been discussed above, I deferentially agree with the view and opinion given by Hon‟ble Mr Justice Rashid Ali Dar (now Retired) and favour dismissal of Letters Patent Appeal and upholding of learned Writ Court judgement. Ido not concur to the contrary view given by Hon‟ble Mr Justice Sanjeev Kumar, whereby His Lordship has proposed setting aside of learned Writ Court judgement and granted consequential reliefs in favour of writ petitioners/appellants. As a corollary thereof, the Letters Patent Appeal is dismissed.
16. In view of above, the Reference is answered, accordingly.
(Tashi Rabstan) Judge Srinagar 07.12.2019 Madan-PS Whether the order is speaking: Yes.
Whether the order is reportable: Yes.
MADAN LAL VERMA 2019.12.07 13:35 I attest to the accuracy and integrity of this document