Orissa High Court
Dr. Amiya Rajan Barik vs State Of Odisha & Others .... Opposite ... on 13 November, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36125 of 2023 & WP(C ) Nos.8115 & 8155 of 2024 In the matter of an application under Articles 226 & 227 of the Constitution of India. .................. Dr. Amiya Rajan Barik Petitioner .... -versus- State of Odisha & Others .... Opposite Parties For Petitioner : Mr. S. Swain, Advocate for Petitioner in W.P.(C ) Nos.36125 of 2023 and 8115 of 2024 Mr. Sailesh Das in W.P.(C ) No.8155 of 2024. For Opp. Parties : Mr. B. Mohanty, AGA (for O.P. No.1 & 2 in all the cases) Mr. S.K. Das, Adv. (for O.P. No.3 in all the case) Mr. T.K. Satapathy, Adv (for O.P.4 in all the cases) Mr. B. Routray, Sr. Adv along with Mr. S.D. Routray, Adv.( for Intervenor in W.P.(C ) No.36125 of 2023 Mr. L. Mohanty, Adv (for Intervenor in W.P.(C ) No.36125 of 2023 // 2 // PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ------------------------------------------------------------------------------------ Date of Hearing: 06.09.2024 and Date of Judgment: 13.11.2024 ---------------------------------------------------------------------------- --------- Biraja Prasanna Satapathy, J.
1. Since the issue involved in all these three (3) Writ Petitions are identical, all were heard analogously and disposed of by the present common order.
2. For the sake of brevity, pleadings made in W.P.(C ) No.36125 of 2023 was taken as the lead case for deciding the issue in question.
3. Writ petition in W.P.(C ) No.36125 of 2023 has been filed challenging the advertisement issued by the State Selection Board (in short, "the Board") on 11.09.2023 under Annexure-1.Vide the said advertisement, the Board invited applications to fill up the post of Lecturers in various discipline including Physics in non-Government Aided Colleges of Odisha and the last date for making such application was fixed to 13.10.2023. Page 2 of 50
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3. 1 Learned counsel for the Petitioner contended that the advertisement so issued under Annexure-1 is the subject-matter of challenge inter alia on the ground that the educational qualification prescribed for the Post of Lecturer being contrary to the notification issued by the University Grants Commission (in short "Commission") on 18.07.2018 under Annexure-4, the process of selection so initiated by the Board for recruitment to the post of Lecturer in Physics is not sustainable in the eye of law. 3.2. It is contended that as provided in the notification issued by the Commission on 18.07.2018 under Annexure-4, the prescribed qualification for the post of Asst. Professor is as follows:
Assistant Professor:
Eligibility (A or B):
Good academic record, with at least 55% marks (or an equivalent grade in a point-scale wherever the grading system is followed) at the Master's degree in Yoga or any other relevant subject, or an equivalent degree from an Indian/foreign University.
Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or a similar test accredited by the UGC like SLET/SET or who are or have been awarded a Ph. D. Degree in accordance with the University Grants Commission (Minimum Standards and Page 3 of 50 // 4 // Procedure for Award of M.Phil./Ph.D. Degree) Regulations, 2009 or 2016 and their amendments from time to time.
OR A Master's degree in any discipline with at least 55% marks (or an equivalent grade in a point-scale wherever the grading system is followed) and a Ph.D. Degree in Yoga in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degree) Regulations, 2009 or 2016 and their amendments from time to time as the case may be.
Note: Considering the paucity of teachers in the newly- emerging field of Yoga, this alternative has been provided and shall be valid only for five years from the date of notification of these Regulations."
3.3. It is contended that along with the qualification of 55% mark in the Master Degree, in the notification issued by the Commission under Annexure-4, the other qualification is the passing of the National Eligibility Test (NET) conducted by the U.G.C, CSIR or a similar test accredited by UGC like SLET/SET or those who are or have been awarded a Ph.D Degree in accordance with the Commission's Regulations 2009 or 2016. Since in the impugned advertisement so issued by the Board under Annexure-1, no such qualification of NET and/or Ph.D has been prescribed, the process of selection undertaken Page 4 of 50 // 5 // by the Board with the said qualification is illegal and unsustainable in the eye of law.
3.4. It is contended that since acquisition of NET qualification and/or Ph.D is a mandatory qualification for the post of Asst. Professor, the Board while issuing the impugned advertisement could not have prescribed the qualification i.e. Master Degree with at least 55% of mark only. It is accordingly contended that since the qualification prescribed in the impugned advertisement is not in consonance with the qualification prescribed by the Commission in its notification dated 18.07.2018 under Annexure-4, the process of selection so undertaken by the Board basing on Annexure-1 is vitiated. 3.5. It is also contended that while issuing similar nature of advertisement as against the post of Lecturer, Odisha Public Service Commission, (in short, "the OPSC" ) under Annexures-6 & 7 prescribed the qualification as has been prescribed by the Commission under Annexure-4. But the Board while issuing the impugned advertisement since never followed the qualification prescribed by the Page 5 of 50 // 6 // Commission which is required to be followed by the Board, the process of selection initiated under Annexure-1 requires interference of this Court.
3.6. It is also contended that taking into account the stand taken in the Writ Petition, this Court passed an interim order on 09.02.2024 inter alia directing that no final selection be made with regard to the post of Lecturer in Physics pursuant to Annexure-1 till the next date and the said interim order was allowed to continue from time to time.
4. Mr. Sameer Kumar Das, learned counsel appearing for the Board on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.3.
It is contended that the advertisement under Annexure-1 was issued with the qualification so prescribed in terms of the resolution issued by the Government in the erstwhile Education and Youth Services Department on 25.07.1989 under Annexure-A/3. It is contended that in Page 6 of 50 // 7 // the resolution issued under Annexure-A/3, for recruitment of Lecturers in the affiliated colleges of the State, a candidate should secure 55% mark at the Master Degree Examination. Not only that, Government in the said Resolution also decided that candidates who have secured 54.5% marks or more but below 55% at the Masters Degree, may be rounded Upto 55%.
4.1. It is contended that since in the resolution so issued by the Government under Annexure-A/3, the prescribed qualification is a Masters Degree with 55% mark, the same was followed by the Board while issuing the advertisement under Annexure-1 with prescription of the qualification vide Para-4. It is accordingly contended that since the advertisement under Annexure-1 was issued in terms of the qualification prescribed by the Government under Annexure-A/3, no illegality or irregularity can be found with the said advertisement.
4.2. Placing reliance on the provisions contained under para-5 of the advertisement, learned counsel appearing for the Board contended that even though acquisition of NET Page 7 of 50 // 8 // qualification and/or Ph.D qualification was not a prescribed qualification as indicated in para-4 of the advertisement, but candidates with having NET qualification and Ph.D qualification were given preference for selection as against the post of Lecturer. It is accordingly contended that since candidates with having NET and Ph.D qualification were given extra mark towards Career Assessment, even if such a qualification is not prescribed for eligible candidates to make the application, but it cannot be treated that the Board has not followed the guideline issued by the Commission. 4.3. Learned counsel appearing for the Board also contended that qualification prescribed by the Commission under Annexure-4 is not a mandatory requirement to be followed by the Board while making the selection to the post of Lecturer pursuant to Annexure-1. It is also contended that by the time interim order was passed by this Court on 09.02.2024, process of selection had already been completed with recommendation of the candidates for their appointment in different branches and Page 8 of 50 // 9 // such selected candidates have already been provided with the appointment save and except the candidates recommended as against the discipline Physics. 4.4. Learned counsel appearing for Opp. Party No.3 also contended that the notification issued by the Commission under Annexure-4 is only applicable for the post of Asst. Professor (stage-I) but not for recruitment to the post of Lecturer. It is contended that since the advertisement under Annexure-1 has been issued for recruitment to the post of Lecturer and the guideline issued by the Commission under Annexure-4 is applicable for recruitment to the post of Asst. Professor (stage-1), the said guideline is not applicable for recruitment to the post of Lecturer for which the advertisement under Annexure-1 has been issued.
4.5. It is also contended that the Petitioner pursuant to Annexure-1 since made the application as against the post of Lecturer in physics, he is not permitted to challenge the stipulation contained in the advertisement. It is accordingly contended that since the qualification so Page 9 of 50 // 10 // prescribed in Annexure-1 is in terms of the resolution issued by the Government under Annexure-A/3, no illegality or irregularity can be found with the qualification so prescribed and the Writ Petition is liable for dismissal.
5. Mr. Buddhadev Routray, learned Sr. Counsel and Mr. Laxmikanta Mohanty, learned counsel appearing for some of the Intervenor-Petitioners/ selected candidates in the discipline Physics made similar submission as made by the learned counsel appearing for the Board. 5.1. It is contended that since the qualification prescribed in the impugned advertisement is in accordance with the resolution issued by the Government under Annexure-A/3, the same cannot be interfered with by this Court. It is also contended that prior to passing of the interim order by this Court, process of selection has already been completed with the appointment of the selected candidates in all other disciplines save and except the discipline Physics.
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// 11 // 5.2. It is contended that since similarly situated candidates belonging to all other disciplines have not only been selected but also appointed, the selected candidates in the discipline Physics are required to get similar benefit of appointment. Because of the interim order passed, intervenor Petitioners who have qualified the recruitment process, have been deprived from getting the benefit of appointment.
6. To the stand taken in the counter affidavit so filed by the Board, learned counsel appearing for the Petitioner made further submissions basing on the stand taken in the rejoinder affidavit. Placing reliance on the further stand taken in the rejoinder affidavit, learned counsel appearing for the Petitioner contended that as provided under clause-3.6.1 of resolution dt.06.10.1989 under Annexure-9, which was issued subsequent to Annexure- A/3, Government in the erstwhile Education and Youth Services Deptt. held that the minimum qualification required for appointment to the post of Lecturers, Readers, Professors will be those prescribed by the Commission Page 11 of 50 // 12 // from time to time. It is also contended that similar view was also taken by the Government while issuing another resolution on 19.03.1990 under Annexure-10. 6.1. As provided under Para-2(2)(d) of the Resolution dt.19.03.1990 under Annexure-10, in order to be eligible for recruitment to the post of Lecturer, a candidate shall have a Master Degree in the relevant subject from a recommended University with at least 55% of mark or it is equivalent rate. But as provided under Para-2(2) (e), a candidate has to qualify the comprehensive test conducted for the purpose of selection of College Teachers by the U.G.C or the State Government in consultation with the U.G.C, as the case may be.
6.2. It is also contended that as provided under clause-
(e), candidates possessing M.Phil or Ph.D Degree are not required to appear the comprehensive test conducted by the U.G.C. It is accordingly contended that since subsequent to Annexure-A/3 while issuing further resolution under Annexures-9 & 10, State Government decided to follow the qualification prescribed by the U.G.C Page 12 of 50 // 13 // for recruitment to the post of Lecturer and the same having not been followed by the Board while issuing the impugned advertisement under Annexure-1, the same is not sustainable in the eye of law.
6.3. It is also contended that Government in the Department of Higher Education while issuing another resolution dt.31.12.1999 under Annexure-11 clearly held that for direct recruitment to the post of Lecturers, the minimum requirement is of a good academic record, 55% of marks at the Master's level and qualifying in the NET or an accredited test. It was made optional for the University to exempt Ph.D holders from NET or to appear NET in their case. Not only that, vide Para 4.5 (b) of the Resolution under Annexure-11, State Government resolved that the minimum qualification for the post of Lecturer will be those as prescribed by the University Grants Commission from time to time. Para 4.5 (b) & (c) of the Resolution dt.31.12.1999 so issued under Annexure-11 reads as follows:
4.5. Recruitment and Qualifications:Page 13 of 50
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(b) The minimum qualifications required for the post of Lecturers, Readers, Professors, Principals, will be those as prescribed by the University Grants Commission from time to time.
(c) The minimum requirements of a good academic records, 55% of the marks at the master's level and qualifying in the National Eligibility Test, or an accredited test, shall remain for the appointment of Lecturers. It would be optional for the University to exempt Ph. D. holders from NET or to require NET, in their case, either as a desirable or essential qualification for appointment as Lecturers in the University Departments and Colleges.. The minimum requirement of 55% should not be insisted upon for Professors, Readers, for the existing incumbents who are already in the University system. However, these marks should be insisted upon for those entering the system from outside and those at the entry point of Lecturers."
6.4. It is accordingly contended that since subsequent to Annexure-A/3 while issuing the resolution dt.31.12.1999 under Annexure-11 Government in the Department of Higher Education prescribed the minimum qualification for appointment of Teachers in the University and Colleges as prescribed by the Commission and as provided under Para 4.5 (c), the minimum qualification so prescribed is 55% in the Master's level with acquisition of qualification of NET and/or Ph.D, the Board was supposed to follow the subsequent resolution issued under Annexure-11 Page 14 of 50 // 15 // instead of acting on the resolution issued under Annexure-A/3, so issued on 25.07.1989. 6.5. Learned counsel for the Petitioner placing reliance on the notification issued by the Higher Education Deptt. on 14.09.2014 under Annexure-5 also contended that while amending Rule 4(2) of the relevant recruitment Rule i.e Orissa Education Service (College Branch) Recruitment Amendment Rules, 2012, clause
(e) was substituted with the following clause.
(ii) Clause (e) shall be substituted by the following clause, namely:-
(i) NET shall remain the compulsory requirement for appointment as Lecturer for those with post-
graduate degree, but the candidates having Ph.D. Degree in accordance with the provisions of the University Grants Commission (Minimum Standards and Procedure for award of Ph.D. Degree) Regulations, 2009 on the concerned subject shall be exempted from the requirement of the minimum eligibility conditions of NET/SLET/SET.
(ii) The Commission shall consider and recommend the names of NET qualified candidates and Ph.D. Degree holders for such appointment after conducting viva-voce test".
6.6. It is also contended that as found from the resolution issued by the Higher Education Deptt. on 04.04.2016 under Annexure-3 series, post of Lecturer Page 15 of 50 // 16 // was redesignated as Asst. Professor( stage-I). It is contended that since post of Lecturer in terms of resolution dt.04.04.2016 was re-designated as Asst. Professor(stage-I), the stand taken by the Board that since the recruitment basing on Annexure-1 advertisement is for the post of Lecturer and the qualification prescribed under Annexure-4 is for the Post of Asst. Professor (Stage-I), the contention raised by the Board is not acceptable.
6.7. It is further contended that even though pursuant to the advertisement issued under Annexure-1, Petitioner made his application, but on finding that the qualification so prescribed is not in accordance with the qualification prescribed by the Commission, Petitioner never participated in the selection process. 6.8. In support of the stand taken in the Writ Petition and the rejoinder affidavit, learned counsel for the Petitioner relied on the following decisions: Page 16 of 50
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1. Gambhirdan K Gadhvi Vs. State of Gujarat and others, Writ Petition (Civil) No.1525 of 2019, decided on 03.03.2022.
2. State of West Bengal Vs. Anindya Sundar Das & Others, Civil Appeal No.No.6706 of 2022, decided on 11.10.2022.
3. Professor (Dr). Sreejith P.S Vs. Dr. Rajasree M.S & Others, Civil Appeal No.7634- 7635 of 2022, decided on 21.10.2022.
4. Kunja Behari Panda and others Vs. State of Odisha and Others, W.P(C) No.33452 of 2020 decided on 24.01.2022.
In case of Gambhirdan K Gadhvi , Hon'ble Apex Court in para-15 & 16 of the said judgment has held as follows:
15. Thus, we find that the appointment of Respondent 4 is contrary to the UGC Regulations, 2018. Also, Respondent 4 has been appointed by a Search Committee, not constituted as per the UGC Regulations, 2018. Moreover, Respondent 4 does not fulfil the eligibility criteria as per the UGC Regulations, 2018, namely, having ten years of teaching work experience as a Professor in the university system. As observed hereinabove, by adopting the Scheme and having accepted 80% of the maintenance expenditure from the Central Government and when Respondent 4 is paid a fixed pay of Rs 75,000 along with a special allowance of Rs 5000 per month, which is prescribed as per the Scheme of 2008, the State and the universities thereunder are bound by the UGC Regulations, 2010 including the UGC Regulations, 2018.
Therefore, when the appointment of Respondent 4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, we are of the opinion that this is a fit case to Page 17 of 50 // 18 // issue a writ of quo warranto and to quash and set aside the appointment of Respondent 4 as the Vice- Chancellor of the SP University.
16. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject "education" is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto.
In the case of Anindya Sundar Das, Hon'ble Apex Court in Para 55 & 56 has held as follows:
55. A "removal of difficulty clause" has been construed in Madeva Upendra Sinai v. Union of India [Madeva Upendra Sinai v. Union of India, (1975) 3 SCC 765 : 1975 SCC (Tax) 105] , which reads as follows : (SCC pp. 775-76, para 39) "39. To keep pace with the rapidly increasing responsibilities of a welfare democratic State, the Legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexity. Under conditions of extreme pressure, with heavy demands on the time of the Legislature and the endurance and skill of the draftsman, it is well-nigh impossible to foresee all the circumstances to deal with which a statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar local conditions or even a local law. This is particularly true when Parliament undertakes legislation which gives a new dimension to socio-economic activities of the State or extends the existing Indian laws to new Page 18 of 50 // 19 // territories or areas freshly merged in the Union of India. In order to obviate the necessity of approaching the Legislature for removal of every difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time-
consuming amendatory process, the Legislature sometimes thinks it expedient to invest the Executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, for making its implementation effective, without touching its substance. That is why the "removal of difficulty clause", once frowned upon and nick-named as "Henry VIII clause" in scornful commemoration of the absolutist ways in which that English King got the "difficulties" in enforcing his autocratic will removed through the instrumentality of a servile Parliament, now finds acceptance as a practical necessity, in several Indian statutes of post-Independence era."
56. The State Government chose the incorrect path under Section 60 by misusing the "removal of difficulty clause" to usurp the power of the Chancellor to make the appointment. A Government cannot misuse the "removal of difficulty clause" to remove all obstacles in its path which arise due to statutory restrictions. Allowing such actions would be antithetical to the rule of law. Misusing the limited power granted to make minor adaptations and peripheral adjustments in a statute for making its implementation effective, to sidestep the provisions of the statute altogether would defeat the purpose of the legislation.
In the case of Professor (Dr). Sreejith P.S., Hon'ble Apex Court in para-8, 8.2 to 8.4 of the said judgment has held as follows:
8. Identical question came to be considered by this Court in the case of Gambhirdan K. Gadhvi (supra) and Kalyani Mathivanan (supra). Now, the issue Page 19 of 50 // 20 // whether the UGC Regulations shall prevail vis-à-
vis the State legislation/State Act, identical question came to be considered by this Court in the recent decision of this Court in the case of Gambhirdan K. Gadhvi (supra). While considering the appointment of the Vice Chancellor in the Sardar Patel University, Gujarat, it is specifically observed and held by this Court that the appointment of Vice Chancellor cannot be made dehors the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria, vis-à-vis the criteria prescribed in the applicable UGC Regulations. It is further observed and held by this Court in the aforesaid decision that the State Act if not on a par with the UGC Regulations, must be amended to bring it on a par with the applicable UGC Regulations and until then it is the applicable UGC Regulations that shall prevail. It is further observed and held that being a subordinate legislation, UGC Regulations become part of the Act. It is further observed and held that in case of any conflict between the State legislation and the Central legislation, the Central legislation, i.e., the applicable UGC Regulations shall prevail by applying the principle of repugnancy under Article 254 of the Constitution as the subject "education" is contained in the Concurrent List of Schedule VII of the Constitution. 8.2. Even in the case of Kalyani Mathivanan (supra), it is observed in paragraph 53 that to the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List, the same shall be repugnant to the Central legislation and would be inoperative. It is also required to be noted that in the case of Kalyani Mathivanan (supra), this Court was considering the UGC Regulations, 2010, which were silent in regard to the post of Vice Chancellor.
8.3 The decision of this Court in the case of Gambhirdan K. Gadhvi (supra) has been Page 20 of 50 // 21 // subsequently followed by this Court in the recent decision of this Court in the case of Anindya Sundar Das & Ors (supra) while considering the appointment of the Vice Chancellor of Calcutta University. In the said decision, it is also observed and held in paragraph 56 that in view of the decision in the case of Gambhirdan K Gadhvi (supra), even if the provisions of the State Act allowed the appointment of the Vice Chancellor by the State government, it would have to be as per the UGC Regulations and any appointment of Vice Chancellor in violation of the UGC Regulations shall be void ab initio. It 12 is further observed that the UGC Regulations shall become part of the statute framed by Parliament and, therefore, shall prevail.
8.4 In view of the above two binding decisions of this Court, any appointment as a Vice Chancellor made on the recommendation of the Search Committee, which is constituted contrary to the provisions of the UGC Regulations shall be void ab initio. If there is any conflict between the State legislation and the Union legislation, the Union law shall prevail even as per Article 254 of the Constitution of India to the extent the provision of the State legislation is repugnant. Therefore, the submission on behalf of the State that unless the UGC Regulations are specifically adopted by the State, the UGC Regulations shall not be applicable and the State legislation shall prevail unless UGC Regulations are specifically adopted by the State cannot be accepted.
Similarly, in the case of Kunja Behari Panda and others, this Court in para 56 of the said judgment has held as follows:
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// 22 // "56.A perusal of the above provisions show that the minimum qualifications for appointment of teaching staff as prescribed in the UGC Regulations 2018, have in fact been adhered to and not diluted. Section 21(2) of the amended Act, as set out, indeed requires such adherence. The OUA Act does not change the minimum qualifications for either the VC or the teaching staff.
Only the method of their selection has been amended and this in no way affects the minimum standards of higher education.
7. To the submission made by the learned counsel appearing for the Petitioner that pursuant to the advertisement, Petitioner though made his application but never participated in the selection process, learned counsel appearing for the Board fairly accepted the said contention. But with regard to the resolution issued by the Government on 31.12.1999 under Annexure-11, learned counsel appearing for the Board as well as learned Sr. Counsel appearing for the Intervenor-Petitioners contended that the stipulation contained in Resolution dt.31.12.1999 is only with regard to the revision of pay-scale and other related service benefits applicable to the existing teachers of non-Government aided colleges in respect of UGC Scale Page 22 of 50 // 23 // of Pay by 1.1.1986 so reflected under para-4.1 of the Resolution. Para-4.1 of the resolution reads as follows:
"Coverage-The revised scales of pay and other related service benefits shall be applicable to all the full-time teachers working in the Utkal University, the Berhampur University, the Sambalpur University, the Shree Jagannath Sanskrit Viswa vidyalaya, Puri, Government Colleges and Non-Government Aided Colleges who were in receipt of January, 1996. The scheme shall also be applicable to the full time teachers of the College of Acanantancy and Management Studies, Cuttack who were in receipt of U.G.C. Scales of pay as on 1st January, 1996."
7.1. It is contended that since resolution issued under Annexure-11 is only with regard to revision of pay scale, in view of the provisions contained under para 4.1, the qualification prescribed vide Para 4.5 (b) & (c) are not required to be followed and the stipulation contained in Annexure-A/3 still govern the field. It is also contended that since Petitioner pursuant to Annexure-1 made his application though not participated in the selection process, the Writ Petition at his instance is not maintainable.
7.2. In support of the aforesaid contention, learned counsel appearing for the Board relied on the decisions of the Hon'ble Apex Court in the case of Neetu Sharma Page 23 of 50 // 24 // Vs. State of Punjab & Others, reported in AIR 2007 Supreme Court 758. Hon'ble Apex Court in para10,12 & 13 has held as follows:
10. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta.
As indicated above, courts must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
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12. When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object.
13. Therefore, as rightly submitted by learned counsel for the appellant, writ petition itself was not maintainable. To that extent the High Court's order cannot be maintained. But it appears that the official Page 24 of 50 // 25 // respondents have already initiated action as regards the caste certificate. Though PIL is not to be entertained in service matters, that does not stand in the way of the officials from examining the question in the right perspective. In the present case admittedly the officials have initiated action. What action will be taken in such proceedings is not the subject-matter of controversy in the present appeal. However, it shall not be construed as if we have expressed any opinion on the merits of the proceedings stated to be pending. The only issue which has been examined relates to the locus standi of the writ petitioner (Respondent 7) to file PIL. Reliance was also placed to a decision of the Hon'ble Apex Court in the case of Girjesh Shri Vastava & Others Vs. State of Madhya Pradesh & Others, reported in (2010) 10 SCC 707. Hon'ble Apex Court in para-14 & 19 has held as follows:
14. However, the main argument by the appellants against entertaining WP (C) No. 1520 of 2001 and WP (C) No. 63 of 2002 is on the ground that a PIL in a service matter is not maintainable. This Court is of the opinion that there is considerable merit in that contention. It is common ground that dispute in this case is over selection and appointment which is a service matter.
19. In a recent decision of this Court delivered on 30-8- 2010, in Hari Bansh Lal v. Sahodar Prasad Mahto [(2010) 9 SCC 655] , it has been held that except in a case for a writ of "quo warranto", PIL in a service matter is not maintainable.
7.3. It is also contended that the Regulation prescribed by the U.G.C though is mandatory, but it is not regulatory and the State is free to decide as to Page 25 of 50 // 26 // whether UGC Regulation is to be adopted by it or not or to take its own decision which has consequential financial implications.
In support of the aforesaid contention , reliance was placed to a decision of the Hon'ble Apex Court in the case of Jagdish Prasad Sharma and Others Vs. State of Bihar & Others, (2013) 8 SCC 633. Hon'ble Apex Court in para 78 of the said judgment has held as follows:
78. We are then faced with the situation where a composite scheme has been framed by UGC, whereby the Commission agreed to bear 80% of the expenses incurred by the State if such scheme was to be accepted, subject to the condition that the remaining 20% of the expense would be met by the State and that on and from 1-4-2010, the State Government would take over the entire burden and would also have enhanced the age of superannuation of teachers and other staff from 62 to 65 years. There being no compulsion to accept and/or adopt the said Scheme, the States are free to decide as to whether the Scheme would be adopted by them or not. In our view, there can be no automatic application of the recommendations made by the Commission, without any conscious decision being taken by the State in this regard, on account of the financial implications and other consequences attached to such a decision. The case of those petitioners who have claimed that they should be given the benefit of the Scheme dehors the responsibility attached thereto, must, therefore, fail.Page 26 of 50
// 27 // It is also contended that Regulation issued by the Commission are partly mandatory and partly directory in view of the decision of the Hon'ble Apex Court in the case of Kalyani Mathivanan Vs. K.V. Jeyaraj and Others, (2015) SCC 363. Hon'ble Apex Court in Paragraph- 20, 27, 62.3 & 62.4 and 62.5 of the said judgment has held as follows:
20. We have heard the learned counsel for the parties and the issues that arise for our consideration are:
(i) whether the UGC Regulations, 2010 are mandatory in nature; and
(ii) whether in the event of conflict between the University Act, the regulations framed thereunder and the UGC Regulations, 2010, the provisions of the UGC Regulations, 2010 would prevail or not; and
(iii) whether the post of Vice-Chancellor of a university is to be considered as part of the teaching staff.
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27. From the aforesaid provisions, we find that the University Grants Commission has been established for the determination of standard of universities, promotion and coordination of university education, for the determination and maintenance of standards of teaching, examination and research in universities, for defining the qualifications regarding the teaching staff of the university, maintenance of standards, etc. For the purpose of performing its functions under the UGC Act (see Section 12) like defining the qualifications and standard that should ordinarily be required of any person to be appointed in the universities [see Sections 26(1)(e) & (g)] UGC is empowered to frame regulations. It is only when both the Houses of Parliament approve the regulation, the same can be given effect to. Thus, we hold that the UGC Regulations though a subordinate legislation has binding effect on the universities to Page 27 of 50 // 28 // which it applies; and consequence of failure of the university to comply with the recommendations of the Commission, UGC may withhold the grants to the university made out of the fund of the Commission (see Section 14).
xxx xxx xxx 62.3. The UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central universities and colleges thereunder and the institutions deemed to be universities whose maintenance expenditure is met by UGC.
62.4. The UGC Regulations, 2010 are directory for the 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. Thus, the UGC Regulations, 2010 are partly mandatory and is partly directory.
62.5. The UGC Regulations, 2010 having not been adopted by the State of Tamil Nadu, the question of conflict between the State legislation and the Statutes framed under the Central legislation does not arise. Once they are adopted by the State Government, the State legislation to be amended appropriately. In such case also there shall be no conflict between the State legislation and the Central legislation. 7.4. It is contended that in the decision of the Hon'ble Apex Court rendered in the case of Dr. J. Bijayan & Others Vs. State of Kerala and others , Civil Appeal No.5037 of 2022, disposed of on 02.08.2022, it has been held that State is not bound to accept or follow the UGC Regulation.
7.5. It is also contended that decision relied on by the Writ Petitioner that even after participating in the Page 28 of 50 // 29 // selection process, a candidate at the later stage can challenge the correctness of the selection and advertisement, the same is not permissible in view of the decision rendered in the case of Dr.(Major) Meeta Sahai Vs. State of Bihar & Others, Civil Appeal No.9482 of 2019, disposed of on 17.12.2019. In para 15 to 17 of the aforesaid judgment, it has been held as follows :
15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.
16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , observing as follows: (SCC p. 584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2008) 4 PLJR 93] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Page 29 of 50 // 30 // [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." [ See also: Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 :
(2008) 1 SCC (L&S) 1005 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 :
(2009) 2 SCC (L&S) 57] The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
7.6. It is also contended that since the Writ Petition has been filed without impleading the selected candidates, the Writ Petition is not maintainable. In support of the contention, reliance was placed on a decision rendered by this Cout in the case of Hansmina Kumari Das & Page 30 of 50 // 31 // Others Vs. State of Orissa & Others, W.P.(C ) NO.1966 of 2017, disposed of on 05.08.2022. In para-11 of the said judgment, it has been held as follows:
11. Secondly, only one private individual, who was allegedly disqualified for being appointed as a primary school teacher, has been impleaded as Opposite Party No.9. Although several names have been mentioned in Para-4 of the writ petition, the others have not been made as Opposite Parties. There is no convincing explanation given for this.
8. Mr. Buddhadev Routray, learned Sr. Counsel appearing for the Intervenor-Petitioners and Mr. Laxmikant Mohanty, learned counsel appearing for some other intervenor-Petitioners also placed reliance on the decisions cited by the learned counsel appearing for the Board in the case of Jagadish Prasad Sharma as well as Kalyani Mathivanan. Further reliance was placed on a decision of this Court in the case of Kunja Bihari Panda & Others Vs. State of Odisha & Others, W.P.(C ) No.33452 of 2020, decided on 24.01.2022 and Asit Kumar Jenamani Vs. State of Odisha & Others, W.P.(C ) No.13666 of 2020 & batch, decided on 20.04.2020.
Page 31 of 50
// 32 // In the case of Jagadish Prasad Sharma, Hon'ble Apex Court in para 2,35,67 to 72,77 & 79 has held as follows:
2. The common thread running through all these various matters is the question as to whether certain regulations framed by the University Grants Commission had a binding effect on educational institutions being run by the different States and even under the State enactments.
35. Appearing for the State of Kerala, Ms Bina Madhavan, learned Advocate, contended that under Article 309 of the Constitution, the State Government is empowered to frame its own rules and regulations in regard to service conditions of its employees.
Furthermore, Section 2 of the Kerala Public Service Commission Act, 1968, empowers the State Government to make rules either prospectively or retrospectively to regulate the recruitment and conditions of service for persons appointed to the public services and posts in connection with the affairs of the State of Kerala. Ms Madhavan submitted that under the Kerala Service Rules, 1958, enacted by the State Government under the proviso to Article 309 of the Constitution, the age of retirement of teachers in colleges has been fixed to be 55 years. Subsequently, however, by G.O.P. No. 170/12/Fin. dated 22-3-2012, the age of compulsory retirement was enhanced to 56 years and the age of superannuation has been enhanced to 60 years. Ms Madhavan urged that having regard to the UGC Regulations dated 30-6- 2010, a decision was taken to revise the scales of pay and other service conditions, including the age of superannuation in the Central universities and other institutions maintained and funded by the University Grants Commission, strictly in accordance with the decision of the Central Government. However, the revised scales of pay and age of superannuation, as provided under Para 2.1.10 and under Para 2.3.1, will also be extended to universities, colleges and other higher educational institutions coming under the purview of the State Legislature and maintained by the State Governments, subject to the implementation of Page 32 of 50 // 33 // the Scheme as a composite one as contemplated in the Regulations.
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67. One of the common submissions made on behalf of the respondents was whether the aforesaid Scheme would automatically apply to the Centrally-funded institutions, to the State universities and educational institutions and also private institutions at the State level, on account of the stipulation that the Scheme would have to be accepted in its totality. As indicated hereinbefore in this judgment, the purport of the Scheme was to enhance the pay of the teachers and other connected staff in the State universities and educational institutions and also to increase their age of superannuation from 62 to 65 years. The Scheme provides that if it was accepted by the State concerned, UGC would bear 80% of the expenses on account of such enhancement in the pay structure and the remaining 20% would have to be borne by the State. This would be for the period commencing from 1-1- 2006 till 31-3-2010, after which the entire liability on account of revision of pay scales would have to be taken over by the State Government. Furthermore, financial assistance from the Central Government would be restricted to revision of pay scales in respect of only those posts which were in existence and had been filled up as on 1-1-2006. While most of the States were willing to adopt the Scheme, for the purpose of receiving 80% of the salary of the teachers and other staff from UGC which would reduce their liability to 20% only, they were unwilling to accept the Scheme in its composite form which not only entailed acceptance of the increase in the retirement age from 62 to 65 years, but also shifted the total liability in regard to the increase in the pay scales to the States after 1-4-2010.
68. Another anxiety which is special to certain States, such as the States of Uttar Pradesh and Kerala, has also come to light during the hearing. In both the States, the problem is one of surplusage and providing an opportunity for others to enter into service. On behalf of the State of Kerala, it had been urged that there were a large number of educated unemployed youth, who are waiting to be appointed, but by retaining teachers beyond the age of 62 years, they were being denied such opportunity. As far as the Page 33 of 50 // 34 // State of U.P. is concerned, it is one of job expectancy, similar to that prevailing in Kerala. The State Governments of the said two States were, therefore, opposed to the adoption of the UGC Scheme, although, the same has not been made compulsorily applicable to the universities, colleges and other institutions under the control of the State authorities.
69. To some extent there is an air of redundancy in the prayers made on behalf of the respondents in the submissions made regarding the applicability of the Scheme to the State and its universities, colleges and other educational institutions. The elaborate arguments advanced in regard to the powers of UGC to frame such regulations and/or to direct the increase in the age of teachers from 62 to 65 years as a condition precedent for receiving aid from UGC, appears to have little relevance to the actual issue involved in these cases. That the Commission is empowered to frame regulations under Section 26 of the UGC Act, 1956, for the promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research, cannot be denied. The question that assumes importance is whether in the process of framing such regulations, the Commission could alter the service conditions of the employees which were entirely under the control of the States in regard to State institutions?
70. The authority of the Commission to frame regulations with regard to the service conditions of teachers in the Centrally-funded educational institutions is equally well-established. As has been very rightly done in the instant case, the acceptance of the Scheme in its composite form has been left to the discretion of the State Governments. The concern of the State Governments and their authorities that UGC has no authority to impose any conditions with regard to its educational institutions is clearly unfounded. There is no doubt that the Regulations framed by UGC relate to Schedule VII List I Entry 66 to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under List III Entry 25, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the universities and colleges within Page 34 of 50 // 35 // the State and the same will have effect unless they are repugnant to any Central legislation.
71. However, in the instant case, the said questions do not arise, inasmuch as, as mentioned hereinabove, the acceptance of the Scheme in its composite form was made discretionary and, therefore, there was no compulsion on the State and its authorities to adopt the Scheme. The problem lies in the desire of the State and its authorities to obtain the benefit of 80% of the salaries of the teachers and other staff under the Scheme, without increasing the age of retirement from 62 to 65 years, or the subsequent condition regarding the taking over of the Scheme with its financial implications from 1-4-2010.
72. As far as the States of Kerala and U.P. are concerned, they have their own problems which are localised and stand on a different footing from the other States, none of whom who appear to have the same problem. Education now being a List III subject, the State Government is at liberty to frame its own laws relating to education in the State and is not, therefore, bound to accept or follow the Regulations framed by UGC. It is only natural that if they wish to adopt the Regulations framed by the Commission under Section 26 of the UGC Act, 1956, the States will have to abide by the conditions as laid down by the Commission.
xxx xxx xxx
77. We are inclined to agree with such submission mainly because of the fact that in the amended provisions of Section 67(a) it has been categorically stated that the age of superannuation of non-teaching employees would be 62 years and, in no case, should the period of service of such non-teaching employees be extended beyond 62 years. A difference had been made in regard to the teaching faculty whose services could be extended up to 65 years in the manner laid down in the University Statutes. There is no ambiguity that the final decision to enhance the age of superannuation of teachers within a particular State would be that of the State itself. The right of the Commission to frame regulations having the force of law is admitted. However, the State Governments are also entitled to legislate with matters relating to Page 35 of 50 // 36 // education under List III Entry 25. So long as the State legislation did not encroach upon the jurisdiction of Parliament, the State legislation would obviously have primacy over any other law. If there was any legislation enacted by the Central Government under List III Entry 25, both would have to be treated on a par with each other [Ed.: But see Articles 254(1) and 246 of the Constitution.] . In the absence of any such legislation by the Central Government under List III Entry 25, the regulations framed by way of delegated legislation have to yield to the plenary jurisdiction of the State Government under List III Entry 25.
79. However, within this class of institutions there is a separate group where the State Governments themselves have taken a decision to adopt the Scheme. In such cases, the consequences envisaged in the Scheme itself would automatically follow. In the case of Kalyani Mathivanan, Hon'ble Apex Court in paragraph-62 has held as follows:
62. In view of the discussion as made above, we hold:
62.1. To the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List shall be repugnant to the Central legislation and would be inoperative.
62.2. The UGC Regulations being passed by both the Houses of Parliament, though a subordinate legislation has binding effect on the universities to which it applies.
62.3. The UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central universities and colleges thereunder and the institutions deemed to be universities whose maintenance expenditure is met by UGC.
62.4. The UGC Regulations, 2010 are directory for the universities, colleges and other higher educational institutions under the purview of the State legislation Page 36 of 50 // 37 // as the matter has been left to the State Government to adopt and implement the Scheme. Thus, the UGC Regulations, 2010 are partly mandatory and is partly directory.
62.5. The UGC Regulations, 2010 having not been adopted by the State of Tamil Nadu, the question of conflict between the State legislation and the Statutes framed under the Central legislation does not arise.
Once they are adopted by the State Government, the State legislation to be amended appropriately. In such case also there shall be no conflict between the State legislation and the Central legislation. In the case of Kunja Bihari Panda, this Court in Paragraph-41,57 & 63 has held as follows:
41. The other decision relied on by the Petitioners is Annamalai University v. Information and Tourism Department (supra). There the focus was on maintaining minimum standards of education.
Although it was held that the State Legislation to the extent it was in conflict with the Central Legislation, including a subordinate legislation like the UGC Regulations, would be inoperative, but as explained in Kalyani Mathivanan v. K.V. Jeyaraj (supra), unless the UGC Regulations are adopted by the State Government and implemented, the question of repugnancy would not arise.
xxx xxx xxx
57. The Court's attention was drawn to Article 309 of the Constitution of India which empowers the 'appropriate legislature' to regulate the 'recruitment' and 'conditions of service' of persons appointed to public services and posts in connection with the affairs of the state or the Union as the case may be. The method of selection and appointment is a sub-set of 'recruitment' and the State legislature can enact a law to regulate it. In Jagdish Prasad Sharma v. State of Bihar (supra), the Supreme Court reminded that:
"Under Entry 25 of List III, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the universities and Page 37 of 50 // 38 // colleges within the State and the same will have effect unless they are repugnant to any central legislation."
In the same decision, it was further emphasised that in the absence of legislation by the central government under Entry 25 List III, the subordinate legislation under Entry 66 List I will have to yield to the 'plenary jurisdiction of the State Government under List III Entry
25."
xxx xxx xxx
63. In the present case, the UGC Regulations 2018 do not affect the power of the State to determine the process and method of selection of the VCs and the teaching staff. The UGC Regulations 2018 cannot be said to occupy the entire field in relation to the said issue.
In the case of Dr. Asit Kumar Jenamani, this Court in paragraph 24 & 25 has held as follows:
24. Indeed fixing the age of superannuation of an employee is an essential part of the service condition and a decision in that regard has to be taken on rational basis by an employer. Whether it should be 60 or 65 years is entirely for the employer to decide. Merely because the Government of Odisha has decided not to implement the UGC Regulations in this regard would not make Rule 19 of the 1974 Rules ultra vires the UGC Regulations or unconstitutional. Page 14 of 16 W.P.(C) No.13666 of 2020 and batch.
25. It is pointed out how the notification dated 31st December 2008 of the MHRD which provides for payment of central assistance for implementation of the scheme is subject to the condition that the entire scheme of revision of pay scales together with all the conditions laid down in UGC would be implemented by the State Government in Universities. The Government of Odisha, it is pointed out, had never exercised the option of adopting such a composite scheme and never presented any proposal to the Government of India to avail any central assistance for implementing the scheme. It has implemented the scheme only in a limited context of revision of pay scales following the revision of pay scale Page 38 of 50 // 39 // of Central Government employees on the recommendations of the 6th CPC.
8.1. It is also contended that since the selected candidates pursuant to Annexure-1 in all other disciplines have got the benefit of appointment on the ground of equity, the selected candidates in the discipline Physics be also extended with similar benefit.
In support of such submission, reliance was placed on the decision of the Hon'ble Apex Court in the case of Central Council for Research in Ayurvedic Sciences & Another Vs. Bikartan Das & Others, Civil Appeal No.3339 of 2023 as well as in the case of Ujjal Mandal Vs. State of West Bengal & Others, WPA No.9253 of 2015, disposed of on 27.07.2022.
In the case of Central Council for Research in Ayurvedic Sciences, Hon'ble Apex Court in para-51 of the said judgment has held as follows:
51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the Page 39 of 50 // 40 // parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction.
Any other approach would render the High Court a normal court of appeal which it is not.
In the case of Ujjal Mandal, High Court of Calcutta in para-26,42 & 43 of the said judgment has held as follows:
26.Part III of the Constitution of India provides for the Fundamental Rights, which the citizens enjoy. Article 19 (1)(g) which is an integral part of Part III of the Constitution of India, inter alia, gives a guarantee and constitutional mandate to a citizen to carry on and thereby to ensure any occupation. Such being a valuable Fundamental Right guaranteed under the constitution could not be taken away by the respondents State authorities without following the established procedure of law. Slightest illegality, unfairness, mala fide and arbitrary exercise of its authority by the State should be construed to be as an intolerable Act on the part of the State, if it infringes a fundamental right of a citizen. The primary duty of a constitutional court exercising power and jurisdiction under article 226 of the Constitution of India is to correct any error or illegality or mala fide and any arbitrary act committed by the state authority and in such regard it can be safely be said that, the constitutional court does so in exercise of its overwhelming plenary powers. This court is also not unmindful as to the proposition that, such plenary power of a constitutional court in exercise of its Page 40 of 50 // 41 // jurisdiction under Article 226 of the Constitution of India must be exercised judiciously, reasonably and of course within the four corners of law and equity.
42. The reliefs granted by a constitutional court in exercise of its high prerogative writ jurisdiction under Article 226 of the constitution is equitable in nature.
The writ court shall exercise such equitable jurisdiction judiciously, to afford complete justice to the parties. When a valuable constitutional right or a legal right alleged to be infringed by a citizen before a constitutional court alleging any arbitrary, illegal or wrongful act of an Article 12 authority or illegal, wrongful or arbitrary exercise of any discretion by an Article 12 authority, the writ court with its plenary jurisdiction and power in exercise of its equitable jurisdiction under Article 226 of the of the Constitution of India intervenes.
43. Under Article 226 of the Constitution of India, writ remedy is an equitable remedy and discretionary. Writ Court exercises equity jurisdiction. Though scope of power of Writ Court to undertake judicial review of administrative actions is very wide, its exercise is subjected to self imposed restraint. It will be exercised only in furtherance of manifest justice and not merely on the making out of a legal point. It must be exercised with great caution and only in furtherance of public interest to set right grave illegality and manifest injustice. It is equally true that, writ court may refuse to grant relief in a case where justice and larger public interest require denial of such relief as compared to grievance of an individual, even assuming there is breach of natural justice/statutory prescription and decision is arbitrary.
9. Mr. T.K. Satapathy, learned counsel appearing for Opp. Party No.4-Commission on the other contended that UGC Act being a Central Act, it has got precedence over State Regulation and State Act. In the notification issued by the Commission under Annexure-4, qualification has been prescribed as against the post of Page 41 of 50 // 42 // Asst. Professor and as reflected in para 4.5-(b) of Annexure-11, State has decided to follow the UGC guideline. Therefore, while issuing the impugned advertisement under Annexure-1, the qualification prescribed by the Commission under Annexure-4 should have been prescribed as the qualification for the post of Lecturer.
9.1. It is also contended that post of Lecturer for which the advertisement in question had been issued has already been re-designated as Asst. Professor(Stage-1) vide Resolution issued by the Government under Annexure-3 series. It is forcefully contended that the qualification prescribed by the Board under Annexure-1 is not the qualification so prescribed by the Commission in its notification under Annexure-4. 9.2. Learned counsel appearing for the UGC placing reliance on the notification issued by the Commission on 24.12.1998 contended that as provided under para-3 of the said notification, the minimum requirement for the post of Lecturer is a good academic record, 55% of Page 42 of 50 // 43 // the marks at the Master's level and qualifying in the National Eligible Test, or an accredited test. It would be optional for the University to exempt Ph.D holders from NET or to acquire NET, in their case, either as a desirable or essential qualification for appointment as Lecturers in the University Departments and Colleges. It is accordingly contended that since issuance of the notification on 24.12.1998, the practice for recruitment of a Lecturer is required to be made in terms of the qualification prescribed by the Commission and the said qualification was also reiterated in the notification issued under Annexure-4.
10. Mr. B. Mohanty, learned Addl. Govt. Advocate placing reliance on the affidavit filed by the Department contended that since the qualification prescribed by UGC under Annexure-4 has not yet been accepted by the State, with issuance of any resolution, the qualification so prescribed by UGC under Annexure-4 can not be made applicable for selection to the post of Lecturer for which the Board has issued the Page 43 of 50 // 44 // advertisement under Annexure-1. Stand taken in para- 10 of the affidavit reads as follows :
10. That, in view of the above, the true spirit and intent of Clause-4.5 of Resolution dated 31.12.1999 is that one has to satisfy the qualifications mentioned in the said clause to avail the U.G.C Scale of pay. Since in the Universities and Government Colleges U.G.C Scale of pay to fresh recruits is extended after satisfying the required period of service, the qualifications stipulated in the said clause is only applicable to Teaching Staffs of Universities and Government Colleges. Since U.G.C Scale of pay is not extended to the Teaching Staffs of Non-Government Aided Colleges those who entered into the direct payment of Grant-in-Aid fold after the cut-off date i.e. 1.4.1989, the said clause is not applicable to the fresh recruits after the cut-off date 01.04.1989 in the non-
Govt. Aided Colleges. As the new recruits of Non- Government Aided Colleges are not entitled for U.G.C Scale of Pay, as such, the clause-4.5 is not applicable to Teaching Staffs of Non-Government Aided Colleges. IN view of that, there is no reference to Teaching Staffs of Non-Government Aided Colleges in Clause-4.5 of the Resolution dated 31.12.1999.
11. I have heard Mr. S. Swain, learned counsel appearing for the Petitioner, Mr. B. Mohanty, learned Addl. Govt. Advocate appearing on behalf of Opp. Party Nos.1 & 2, Mr. Sameer Ku. Das, learned counsel appearing on behalf of Opp. Party No.3, Mr. B. Routray, learned Sr. Counsel along with Mr. S.D. Routray, learned counsel appearing on behalf some of Intervenor- Petitioners, Mr. L. Mohanty, learned counsel appearing Page 44 of 50 // 45 // on behalf of Intervenor-Petitioners and Mr. T.K. Satapathy, learned counsel appearing on behalf of Opp. Party No.4. With due exchange of pleadings, the matter was heard at the stage of admission and disposed of by the present order.
12. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that the advertisement under Annxure-1 was issued by the Board for recruitment to the post of Lecturers in different discipline in Non-Government Aided Colleges of Odisha. The qualification for the post in various discipline for recruitment to the post of Lecturer as prescribed vide Para-4 is Master's Degree with at least 55% mark or its equivalent. 12.1. As found from the resolution issued by the Higher Education Department on 04.04.2016 under Annexure-3 series, post of Lecturer was re-designated as Asst. Professor (stage-1). It is further found from the notification issued by the Commission on 18.07.2018 under Annexure-4, the minimum qualification for Page 45 of 50 // 46 // appointment of Teachers in Universities and Colleges is Master Degree with 55% of mark along with qualification of NET and/or PH.D. The qualifications prescribed by the Commission under Annexure-4 as found has been followed by the Odisha Public Service Commission while issuing advertisement for recruitment to the post of Lecturers in different disciplines of Orissa Education Service (College Branch) under Annexures-6 & 7. 12.2. It is also found that subsequent to the resolution issued under Annexure-A/3 on 25.07.1989 while issuing the resolution dt.31.12.1999 under Annexure-11, the prescribed qualification for recruitment to the post of Lecturer is Master's Degree with 55% mark and qualification of NET and/or PH.D. As further found from Para 4.5 (b) of the resolution issued under Annexure-11, State Government has accepted to implement the guideline issued by the Commission with regard to the minimum qualification for appointment of teachers in Universities and Colleges. Page 46 of 50
// 47 // 12.3. In view of the resolution issued under Annexure-11 on 31.12.1999 and the qualification prescribed for recruitment to the post of Lecturer being Master Degree with NET qualification and/or PH.D, the qualification prescribed in the impugned advertisement dt.11.09.2023 under Annexure-1, basing on Annexure- A/3, as per the considered view of this Court is not the prescribed qualification for recruitment to the post of Lecturer. This Court is unable to accept the contention raised by the learned counsel appearing for the Board that Annexure-11 only deals with the revision of pay scale and it has no applicability with regard to the qualification prescribed for the post of Lecturer, in view of the provisions contained under Para-4.5 (b) & (c) of the Resolution issued under Annexure-11. 12.4. Since the post of Lecturer has already been re-designated as Asst. Professor (stage-1) vide Resolution dt.04.04.2016 under Annexure-3 series, and as per the subsequent Resolution issued by the Department on 31.12.1999 under Annexure-11, the Page 47 of 50 // 48 // prescribed qualification for the post of Lecturer is not the qualification prescribed in the impugned advertisement, as per the considered view of this Court, the process of selection initiated by the Board with the qualification so prescribed is not legal and justified. 12.5. However, considering the fact that the selection and appointment in all other disciplines have been made basing on Annexure-1 advertisement, this Court on the ground of equity and placing reliance on the decisions of the Hon'ble Apex Court in the case of Central Council for Research in Ayurvedic Sciences as well as in the case of Ujjal Mandal is inclined to allow the Board to complete the selection process as against the post of Lecturer in Physics. However, this cannot be treated as a precedent and the Board is required to follow the qualification prescribed in Annexure-11 coupled with the notification issued by the Commission under Annexure-4 for recruitment to the post of Lecturer/Asst. Professor (Stage-1). Page 48 of 50
// 49 // 12.6. Since the process of selection which is the subject matter of dispute in W.P.(C ) Nos.8115 and 8155 of 2024 has not yet been completed and the qualification prescribed in the impugned advertisement in those Writ Petition is not in consonance with the qualification reflected in Annexure-11 and the notification issued by the Commission under Annexure- 4, this Court is inclined to allow the prayer in W.P.(C ) Nos.8115 and 8155 of 2024. While allowing both the Writ Petitions, this Court is inclined to quash the advertisement issued by the Board vide Advertisement No.04 of 2024, which is the subject matter of dispute in W.P.(C ) Nos.8115 and 8155 of 2024. This Court grants liberty to the Commission to issue a fresh advertisement by prescribing the qualification as reflected in Annexure-11 read with Annexure-4 notification issued by the Commission.
Page 49 of 50
// 50 // All these three (3) Writ Petitions are accordingly disposed of with the aforesaid observation and direction.
Photocopy of the judgment be placed in the connected cases.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the13th November, 2024/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 13-Nov-2024 18:35:27 Page 50 of 50