Rajasthan High Court - Jaipur
Kumari Aditi Kalra vs State (Education Department)Ors on 13 September, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR 1. D.B.Civil Writ Petition No.8582/2011 Ravindra Singh Shekhawat V/s Union of India & ors. Reportable 2. D.B.Civil Writ Petition No.18459/2011 Dr.Shiv Singh Solanki V/s University Grants Commission & ors. 3. D.B.Civil Writ Petition No.8048/2011 Pushpa Meena & ors. V/s Union of India & ors. 4. D.B.Civil Writ Petition No.8852/2011 Dr.Mayank Gupta V/s State of Raj. & anr. 5. D.B.Civil Writ Petition No.9100/2011 Hemendra Kumar Avasthi V/s Union of India & ors. 6. D.B.Civil Writ Petition No.9773/2011 Miss Vandana Agarwal V/s State of Raj. & anr. 7. D.B.Civil Writ Petition No.10110/2011 Dr.Madhu Bala V/s State of Raj. & anr. 8. D.B.Civil Writ Petition No.10642/2011 Sarita Jhuria V/s State of Raj. & ors. 9. D.B.Civil Writ Petition No.10694/2011 Suresh Kumar V/s University Grants Commission & ors. 10. D.B.Civil Writ Petition No.10811/2011 Dr.Jagat Singh V/s State of Raj. & anr. 11. D.B.Civil Writ Petition No.11543/2011 Dr.Kuldeep Singh V/s State of Raj. & anr. 12. D.B.Civil Writ Petition No.11544/2011 Shweta Mehar V/s State of Raj. & anr. 13. D.B.Civil Writ Petition No.11545/2011 Ms.Raju Rundla V/s State of Raj. & anr. 14. D.B.Civil Writ Petition No.11593/2011 Neelam Jeengar & anr. V/s Union of India & ors. 15. D.B.Civil Writ Petition No.12012/2011 Satish Kumar Jhanwar & ors. V/s Union of India & ors. 16. D.B.Civil Writ Petition No.12026/2011 Ashok Kumar Lamod V/s State of Raj. & anr. 17. D.B.Civil Writ Petition No.12343/2011 Dinesh Kumar Siradhana V/s State of Raj. & anr. 18. D.B.Civil Writ Petition No.12426/2011 Swati Meena & ors. V/s State of Raj. & ors. 19. D.B.Civil Writ Petition No.12558/2011 Smt.Rashmi Panwar V/s State of Raj. & ors. 20. D.B.Civil Writ Petition No.13494/2011 Mahaveer Singh V/s State of Raj. & anr. 21. D.B.Civil Writ Petition No.13636/2011 Gajendra Kumar Yadav & ors. V/s R.P.S.C. & anr. 22. D.B.Civil Writ Petition No.13773/2011 Harsh Bhardwaj V/s State of Raj. & anr. 23. D.B.Civil Writ Petition No.14331/2011 Smt.Lalita Chouhan (Lodha) V/s State of Raj. & anr. 24. D.B.Civil Writ Petition No.14347/2011 Farwat Singh V/s Union of India & ors. 25. D.B.Civil Writ Petition No.14495/2011 Samata Singh V/s State of Raj. & anr. 26. D.B.Civil Writ Petition No.14628/2011 Vijay Singh Meena V/s State of Raj. & anr. 27. D.B.Civil Writ Petition No.15402/2011 Kusam Lata Udiagria V/s State of Raj. & anr. 28. D.B.Civil Writ Petition No.15542/2011 Lata Mahavar V/s State of Raj. & anr. 29. D.B.Civil Writ Petition No.15625/2011 Jitendra Singh Bidawat V/s State of Raj. & anr. 30. D.B.Civil Writ Petition No.15797/2011 Padam Chand Meena V/s State of Raj. & ors. 31. D.B.Civil Writ Petition No.16097/2011 Jai Prakash Parewa V/s State of Raj. & ors. 32. D.B.Civil Writ Petition No.16186/2011 Kapoor Singh Jorasia V/s State of Raj. & ors. 33. D.B.Civil Writ Petition No.16602/2011 Kumari Aditi Kalra V/s State of Raj. & ors. 34. D.B.Civil Writ Petition No.363/2012 Gograj Nitharwal V/s State of Raj. & anr. 35. D.B.Civil Writ Petition No.482/2012 Dr.Arun Mehra V/s State of Raj. & anr. 36. D.B.Civil Writ Petition No.619/2012 Pawan Kumar Patodiya V/s R.P.S.C. Ajmer 37. D.B.Civil Writ Petition No.4184/2012 Rekha Bai Meena V/s State of Raj. & anr. 38. D.B.Civil Writ Petition No.4546/2012 Jagdish Prasad Dhanka V/s State of Raj. & ors. 39. D.B.Civil Writ Petition No.7039/2012 Dr.Ravi Sharma & anr. V/s Vice-Chancellor, Jagatguru & ors. 40. D.B.Civil Writ Petition No.17982/2011 Shyam Bihari V/s State of Raj. & ors. Date of order :- 13.9.2012 PRESENT HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN-I Mr.S.P.Sharma, Senior Counsel with ) Mr.Gaurav Sharma ) Ms.Naina Saraf ) Mr.Rajendra Soni ) Mr.Manish Kumar Sharma ) Mr.Narendra Choudhary ) Mr.Pradeep Choudhary ) Mr.Brahmanand Sandu ) Mr.Anoop Dhand ) Dr.Saugath Roy ) Mr.Satyapal Poshwal ) Mr.B.C.Chirania ) Mr.Ravi Chirania ) Mr.Mahipal Kharra ) Mr.Rajneesh Gupta ) Mr.Sunil Samdaria )-for petitioners. Mr.Kuldeep Aswal ) Mr.Mahesh Gupta ) Mr.A.K.Sharma,Senior Counsel with ) Mr.V.K.Sharma ) Mr.Bharat Vyas for UGC ) Mr.S.S.Raghav for Union of India. ) Mr.S.N.Kumawat, Addl.Advocate General )-for respondents.
Mr.Anant Bhandari ) ORDER Per Hon'ble Arun Mishra,CJ (Oral)
In these writ applications, common question arises with respect to the eligibility of holders of M.Phil/Ph.D for the post of Lecturer/Assistant Professor whether they are required to qualify NET/SLET/SET. Vires of the University Grants Commission (Minimum qualifications required for the appointment and Career Advancement of teachers in Universities and Institutions affiliated to it) (3rd Amendment) Regulations, 2009 (hereinafter referred to as the 3rd Amendment Regulations of 2009) framed by the University Grants Commission (for short the UGC) in this regard in the year 2009 has been put into question as the UGC has put a rider that only those candidates, who are or have been awarded Ph.D. Degree in compliance of the University Grants Commission (Minimum Standards and Procedure for award of Ph.D. Degree) Regulations, 2009 (hereinafter referred to as the Minimum Standards Regulations of 2009), shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions. The petitioners have prayed that the said Regulations framed by the UGC on 11.7.2009 to the aforesaid extent be declared ultra vires and quashed. The petitioners have also prayed to quash the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter referred to as the Regulations of 2010) to the extent of providing similar rider that only those candidates, who are or have been awarded Ph.D. Degree in accordance with the Minimum Standards Regulations of 2009 shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions. Prayer has also been made to declare that the impugned Regulations are not retrospective in nature and the candidates, who have passed M.Phil/Ph.D. Degree earlier before 3rd Amendment Regulations of 2009 came into force be held to be eligible for the post of Lecturer/Assistant Professor or other equivalent post without passing NET/SLET/SET and directions be issued to the respondents to consider the candidature of the petitioners for appointment to the post of Lecturer/Assistant Professor without qualifying NET/SLET/SET.
The facts are referred to from D.B.Civil Writ Petition No.8582/2011 Ravindra Singh Shekhawat V/s Union of India and ors. The petitioner has passed M.Phil examination in the year 1998; he has questioned the validity of the advertisement dated 21.9.2010 inviting applications for appointment to the posts of Lecturer/Assistant Professor in various subjects including Botany; since he has qualified the written examination, he was called for interview on 8.7.2011, however, in the call letter, a note was mentioned to the effect that if candidate has not qualified NET/SLET/SET, he should bring proper evidence for exemption that his Ph.D. degree is awarded in accordance with the Minimum Standards Regulations of 2009. The petitioner apprehended that since he has acquired the qualification of M.Phil and others have also acquired Ph.D degree prior to 2009 and the same was not as per the Minimum Standards Regulations of 2009, their candidature may be rejected. It was further submitted by the petitioner that the UGC has been making amendments in the Regulations from time to time and by way of 3rd Amendment Regulations of 2009, which came into force from the date when they were published in the Gazette of India i.e. July 11, 2009, amendment was brought about to the effect that NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions. Provided, however, that candidates, who are or have been awarded Ph.D. Degree in compliance of the Minimum Standards Regulations of 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions. Thereafter, in September, 2009 the UGC has framed the Regulations called University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2009 (hereinafter referred to as the Appointment Regulations of 2009).
Thereafter, vide notification 30.6.2010 the UGC has framed the Regulations of 2010 and the same were published in the Gazettee of India on September 18, 2010. As per clause 3.3.1. NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions. Provided however, that candidates who are or have been awarded a Ph.D. Degree in accordance with the Minimum Standards Regulations of 2009 shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions.
It was further submitted by the petitioner that in view of the aforesaid Regulations framed by the UGC, the candidates, who have not cleared M.Phil or Ph.D. as per the Minimum Standards Regulations of 2009 have been deprived from participating in the selection process for appointment to the post of Lecturer/Assistant Professor; no candidate, who has done M.Phil/Ph.D. prior to 2009, is being considered for appointment to the post of Lecturer/Assistant Professor; since 3rd Amendment Regulations of 2009 came into force with effect from 31.12.2009, no candidate could possibly hold M.Phil/Ph.D. Degree under the Minimum Standards Regulations of 2009 and thus, all M.Phil/Ph.D. candidates have been ousted from the selection process and only those candidates, who have passed NET/SLET/SET are being considered for appointment to the post of Lecturer/Assistant Professor. Hence, the writ application has been preferred with the aforesaid prayers.
A reply has been filed by the UGC to Writ Petition No.8582/2011, which was adopted in all the cases. It was submitted that the UGC is fully empowered under Section 26 of the University Grants Commission Act, 1956 (hereinafter referred to as the Act of 1956) to frame the Regulations; the UGC considering the recommendations made by the Expert Bodies of the Educationists from time to time, standards of performance varied from University to University, recommendations of Prof.R.C.Mehrotra Committee, has decided to hold a comprehensive National Eligibility Test to determine the eligibility for Lecturer; the UGC has been making amendments in the Regulations from time to time prescribing inter-alia qualifications and eligibility for the post of Lecturer/Assistant Professor etc.; the validity of the Regulations of 1991 and the power of UGC to provide for NET, was upheld by the Apex Court in University of Delhi V/s Raj Singh (1994 Supp.(3) SCC 516); thereafter, the UGC amended the Regulations of 1991 vide Notification dated 21.6.1995; the UGC has again issued Notification on 24.12.1998 providing qualifications and other service conditions; thereafter, the UGC in exercise of the power conferred by Section 26(1)(e) & (g) of the Act of 1956, has framed the University Grants Commission (Minimum Qualifications Required for the Appointment & Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000 and subsequently, the Regulations of 2000 were amended by way of University Grants Commission (Minimum Qualifications Required for the Appointment & Career Advancement of Teachers in Universities and Institutions affiliated to it) (1st Amendment) Regulations, 2002 prescribing NET as compulsory requirement for appointment as Lecturer even for candidates having Ph.D. Degree; thereafter, the Ministry of Human Resource Development, Government of India constituted a Committee under the Chairmanship of Dr.B.L.Mungekar to review the National Eligibility Test examination and the interim report of the said Committee was sent by the Government of India to the UGC and considering the recommendations made by the said Expert Committee, the UGC in its 428th meeting held on 11th June, 2006 decided to make second amendment and accordingly, UGC (Minimum Qualifications Required for the Appointment & Career Advancement of Teachers in Universities and Institutions affiliated to it) (2nd Amendment) Regulations, 2006 were framed vide notification dated 14.6.2006; thereafter, the Government of India sent final report of the Mungekar Committee to the UGC and considering the same, the UGC has passed resolutions; the Government of India vide order dated 12.11.2008 under section 20 of the Act of 1956 issued directions and considering the same, report of the Mungekar Committee and other relevant material and aspects, the UGC framed Minimum Standards Regulations of 2009 and 3rd Amendment Regulations of 2009 which came into force on 31.12.2009 and thereafter, Regulations of 2010 were framed by the UGC vide notification dated 30.6.2010 which was published in the Gazette of India on 18th September, 2010. It was further submitted that the candidates seeking appointment to the post of Lecturer/Assistant Professor are required to possess the requisite qualifications as prescribed by the UGC from time to time; the rider put by the UGC in the impugned Regulations cannot in any manner be said to be arbitrary or illegal or ultra vires; laying down of minimum qualifications for appointment to the post of Lecturer/Assistant Professor is a matter which falls within the domain of experts/UGC and no vested right of the petitioners has been taken away by the impugned Regulations; the Regulations have been framed in exercise of powers conferred under section 26 of the Act of 1956 to maintain standards of higher education and they cannot in any manner be regarded as illegal or arbitrary or ultra vires. Hence, no interference is called for and the writ applications deserve to be dismissed.
The Union of India has filed return in D.B.Civil Writ Petition No.12426/2011 Swati Meena & ors. V/s State of Raj. & ors., and the same was adopted in all cases. It was submitted that 3rd Amendment Regulations of 2009 and Minimum Standards Regulations of 2009 are prospective in nature, inasmuch as they apply to the appointments to be made after they came into force on 11th July, 2009; the candidates are required to possess qualifications as prescribed under the impugned Regulations; quality of teaching in higher education is a matter of great concern and vide letter dated 3.11.2010, the Central Government has clarified that the Regulations in force do not contain any provision for exemption of candidates, who are not having NET/SLET/SET and grant of exemption from NET/SLET/SET would amount to violating the 3rd Amendment Regulations of 2009; NET/SLET/SET is compulsory for teaching positions as a policy relating to national purposes of maintenance of standards of higher education; any exemption sought by the petitioners would be contrary to the impugned Regulations as well as national policy; the impugned Regulations have been passed within the framework of law and do not suffer from any illegality or vice of arbitrariness so as to call for any interference by this Court. Hence, the writ petitions are liable to be dismissed.
The State of Rajasthan in the return filed in D.B.Civil Writ Petition No.8048/2011 Pushpa Meena & ors. V/s Union of India & ors., which was adopted in all cases, has supported the impugned Regulations and stand of UGC.
Mr.S.P.Sharma, learned Senior Counsel with Mr.Gaurav Sharma, Ms.Naina Saraf, Mr.Rajendra Soni, Mr.Manish Kumar Sharma, Mr.Narendra Choudhary, Mr.Pradeep Choudhary, Mr.Brahmanand Sandu, Mr.Anoop Dhand, Dr.Saugath Roy, Mr.Satyapal Poshwal, Mr.B.C.Chirania, Mr.Ravi Chirania, Mr.Mahipal Kharra, Mr.Rajneesh Gupta, Mr.Sunil Samdaria, Mr.Kuldeep Aswal and Mr.Mahesh Gupta appearing on behalf of the petitioners have submitted that 3rd Amendment Regulations of 2009 and the Regulations of 2010 are ultra vires the Constitution, inasmuch as, they cannot take away the vested or accrued rights of the candidates, who have passed M.Phil or Ph.D. prior to 3rd Amendment Regulations of 2009 came into force on 31.12.2009. It was also submitted that the Union of India has no power to issue directives to the UGC within the ken of Section 20(1) of the Act of 1956 with respect to the qualifications to be possessed by the incumbents who are staking their claim for appointment as Assistant Professor or Lecturer or other equivalent post. The power of the UGC to frame Regulations under section 26(1) (e) of the Act of 1956 is not subject to approval by the Central Government. It was also submitted by the learned Senior Counsel for the petitioners that proper interpretation of 3rd Amendment Regulations of 2009 is that the incumbents, who have already passed M.Phil or Ph.D. prior to coming into force of 3rd Amendment Regulations, 2009, are exempted from passing M.Phil or Ph.D., as the case may be, and they are also entitled for exemption from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor/Lecturer in the Universities/Colleges/Institutions. It was further submitted that retrospective effect cannot be given to 3rd Amendment Regulations of 2009 and Regulations of 2010; the stand of UGC was appropriate in this regard which has been unduly interfered with by the Central Government; the UGC has interpreted that in case incumbents are required to possess qualification of M.Phil or Ph.D. on the date on which 3rd Amendment Regulations of 2009 came into force, as per Minimum Standards Regulations of 2009, it would amount to giving of retrospective effect to 3rd Amendment Regulations of 2009, which was not intended; the Central Government unduly interfered with the aforesaid resolution of the UGC and exemptions granted by it to a larger number of such candidates.
The learned counsel appearing for the petitioners have relied upon the Division Bench decision of Allahabad High Court in Dr.Ramesh Kumar Yadav and anr. V/s University of Allahabad and ors. (Civil Misc.Writ Petition No.45477 of 2011 decided on 6.4.2012).
On the other hand, it was submitted by Mr.A.K.Sharma, learned Senior Counsel with Mr.V.K.Sharma, Mr.Bharat Vyas, Mr.S.S.Raghav, Mr.S.N.Kumawat, AAG and Mr.Anant Bhandari appearing on behalf of the respondents that the impugned Regulations framed by the UGC are clear and they have been rightly framed by the UGC under section 26(1)(e) of the Act of 1956 and they are binding; there is no question of giving of retrospective effect to 3rd Amendment Regulations of 2009; once appointment has to be made after the 3rd Amendment Regulations of 2009 has come into force, there is no question of its retrospective operation; only those incumbents, who are or have been awarded Ph.D. Degree in compliance of the Minimum Standards Regulations of 2009 shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in the Universities/ Colleges/Institutions; the opinion of the Central Government was found to be appropriate by the UGC and exemptions which were granted on wrong interpretation were recalled; proper interpretation of the amendment made by way of 3rd Amendment Regulations of 2009 is that those candidates, who are or have been awarded M.Phil/Ph.D. in compliance of the Minimum Standards Regulations of 2009 shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions; the incumbents, who have obtained the qualification of M.Phil/Ph.D. earlier cannot be said to have obtained the M.Phil/Ph.D. in terms of the Minimum Standards Regulations of 2009. It was also submitted by the learned counsel for the respondents that it was found that in various Universities, the standards of M.Phil/Ph.D. were not equivalent, admission criteria was also not the same and considering the deteriorating standard of teaching staff, it was considered appropriate by the Central Government to constitute Expert Committee and accordingly, Mungekar Committee was constituted and on the basis of the recommendations made by the said Mungekar Committee, the Central Government issued requisite directives and thereafter, the UGC has considered the matter in its meeting held on 21.5.2008 and decided to have the views of Empowered Committee and thereafter, 3rd Amendment Regulations of 2009 and Minimum Standards Regulations of 2009 were framed and later on, Regulations of 2010 were framed. It was a matter of national policy that duly qualified incumbents are appointed in the Universities/Colleges/Institutions etc. as such, decision had been taken by the Central Government as well as UGC in accordance with law; impugned Regulations cannot be said to be ultra vires or illegal or arbitrary in any manner.
The learned counsel for the respondents have relied upon the Division Bench decision of Delhi High Court in All India Researchers' Coordination Committee and ors. V/s Union of India (UOI) and ors. (2011(121) DRJ 297) wherein it was held that the Regulations of 2009 were neither arbitrary nor irrational and they are in no way retrospective in nature. They have also relied upon the Division Bench decision of the Madras High Court in P.Suseela and ors. V/s University Grants Commission (Writ Appeal No.893 & amp.894 of 2010 decided on 6.12.2010) refusing to interfere with the Regulations of 2009.
Before proceeding to consider the rival submissions of the parties, it is necessary to consider the backdrop of facts leading to the framing of 3rd Amendment Regulations of 2009. The UGC has made the NET examination compulsory for appointment to the post of Teachers and Lecturers in the Universities for the first time by framing the Regulations in 1991 and the Regulations of 1991 were framed on the basis of the recommendations of the Expert Committee appointed by the Union of India; Union of India considering the falling standards and disparity of norms with respect to M.Phil/Ph.D., constituted a Review Committee under the chairmanship of Prof.Bhalchandra Mungekar, which held extensive and intensive deliberations through out the country; Academicians, Scientists and Administrators were of the view that floodgates being opened for registration of M.Phil and Ph.D. degrees resulting into further deterioration of qualities of these degrees and consequently, making easy entry of the teaching profession of such degree holders and thus, the Committee recommended that NET should be retained as a compulsory requirement for appointment of Lecturer for both undergraduate and postgraduate level, irrespective of candidate possessing M.Phil. or Ph.D. degree. In view of the recommendations made in the final report of the Mungekar Committee, the Union of India vide order dated 12th November, 2008 issued policy directions in exercise of power conferred under section 20(1) of the Act of 1956. Relevant portion of the policy directions given by the Central Government vide order dated 12.11.2008 are quoted below:-
(1) the UGC shall, for serving the national purpose of maintaining standards of higher education, frame appropriate regulations within a period of thirty days from the date of issue of this Order prescribing that qualifying in NET/SLET shall generally be compulsory for all persons appointed to teaching positions of Lecturer/Assistant Professor in higher education, and only persons who possess degree of Ph.D. after having been enrolled/admitted to a programme notified by the Commission, after it has satisfied itself on the basis of expert opinion, as to be or have always been in conformity with the procedure of standardization of Ph.D. prescribed by it, and also that the degree of Ph.D. was awarded by a University or Institution Deemed to be University notified by the UGC as having already complied with the procedure prescribed under the Regulations framed by the Commission for the purpose.
(2) the UGC shall notify the date or dates from which exemption from qualifying in NET/SLET in respect of Universities/Institutions Deemed to be Universities as well as the discipline for which such exemption is being granted only on the recommendations of a Committee of Experts to be constituted by the Commission and that the experts therein shall be persons of high eminence in the respective disciplines for which the persons possessing Ph.D. are considered for exemption from qualifying NET/SLET.
(3) The UGC shall not give any blanket or general exemption from NET/SLET to any University/Institution Deemed to be University unless the degree of Ph.D. awarded by it in all disciplines or programmes meet the same level of rigour in terms of standards and quality as laid down by the Commission for each discipline under the regulations for the purpose, and that exemption from NET/SLET in respect of Ph.D. awarded by any University/Institution Deemed to be University or to one or more of its programmes/disciplines in respect of such Ph.D. shall be further subject to the University/Institution continuing to comply with the regulations of the UGC and shall be open to review or reconsideration by the Commission' and such exemption shall be withdrawn in any or all disciplines or in respect of an award of Ph.D. to any person or persons, where the Commission has, on the basis of recommendation by the Committee of experts or on the basis of any inquiry conducted by it suo moto, reasons to believe that there has been deviation from or violation of the procedure prescribed by Commission.
Thereafter, the UGC in its 454th meeting held on 10th and 11th December, 2008 considered the directives issued by the Central Government on the basis of report of Mungekar Committee and it was of the opinion that in past relaxation has been given to the existing candidates, who have successfully completed M.Phil/Ph.D and were eligible for exemption as per the existing norms. The Commission had, therefore, recommended exemption from NET for such candidates as recommended by the Mungekar Committee upto June 2009 for M.Phil candidates and June 2011 for Ph.D. candidates and that would be in the spirit and tune with the past decisions taken by the Central Government.
Thereafter, the UGC has made amendment by way of 3rd Amendment Regulations of 2009 and the same is quoted below:-
NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions.
Provided, however, that candidates, who are or have been awarded Ph.D. Degree in compliance of the University Grants Commission (minimum standards and procedure for award of Ph.D. Degree) Regulation 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions.
The Ministry of Human Resource Development, Government of India on 16.7.2009 conveyed the clarification with respect to the adhoc teachers, who were not NET qualified, they be given period of two years to qualify NET/SLET and requisite directions be issued by UGC to the Universities/Colleges/Institutions. The Ministry of Human Resource Development, Government of India has sent another communication dated 30th March, 2010 under section 20 of the Act of 1956 to the effect (i) that the UGC shall not take up specific cases for exemption from the application of the NET Regulations of 2009 after the said Regulations have come into force, for either specific persons or for a specific university/institution/college from the application of the 3rd Amendment Regulations of 2009 for appointment as Lecturer in Universities/Colleges/Institutions; (ii) that appropriate amendment to the second proviso to clause 2 of the UGC Regulations 2000 shall be made by UGC to give full effect to the policy directions issued by the Central Government dated 12th November, 2008, within 30 days from the date of issue of this direction; and (iii) that the decision taken by the UGC in its 468th meeting held on 23rd February, 2010 vide agenda item no.6.04 to 6.05 to grant specific exemptions from the applicability of NET shall not be implemented as being contrary to national policy.
The 3rd Amendment Regulations of 2009 were superseded by the Regulations of 2010. For recruitment and qualification by way of direct recruitment, it is provided in Regulation 3.1.0 that they shall be on the basis of merit through all India advertisement and selections by the duly constituted Selection Committees under the Statutes/Ordinances of the concerned University. The composition of such Committees should be as prescribed by UGC in the Regulations. Para 3.3.0 provides for minimum qualification for good academic record to be 55% marks ( or an equivalent grade in a point scale wherever grading system is followed) at the master's level and qualifying in the NET/SLET for Assistant Professors. Para 3.3.1 is relevant and the same is quoted below:-
3.3.1. NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions.
Provided however, that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions.
The UGC formed a legal opinion that both 3rd Amendment Regulations of 2009 and the Regulations of 2010 are prospective and not retrospective in nature and therefore, all candidates having M.Phil/Ph.D. on or before 10th July 2009 shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Associate Professor; the UGC further opined that all the candidates, who have either obtained Ph.D. Degree on or before 31.12.2009 and such candidates, who had registered themselves for Ph.D. Degree on or before 31.12.2009 and are subsequently awarded Ph.D. degree shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor.
The Ministry of Human Resource Development, Government of India did not agree with the legal opinion formed by the UGC with respect to retrospective operation of 3rd Amendment Regulations of 2009 and Regulations of 2010 and it opined that as on date a candidate seeking appointment to the post of Lecture must fulfill the minimum qualifications prescribed by the UGC as contained in the UGC Regulations meaning thereby persons who have passed M.Phil/Ph.D. earlier to the 3rd Amendment Regulations of 2009 shall have to pass NET/SLET/SET and the exemptions which were granted by the UGC were recalled on the advice of Government of India. Hence, the petitions have been preferred questioning the vires of 3rd Amendment Regulations of 2009 and the Regulations of 2010.
Coming to the first submission whether 3rd Amendment Regulations of 2009 and Regulations of 2010 can be termed to be ultra vires, the Union of India has been given power under Section 20 of the Act of 1956 to issue directions and the Commission in the discharge of its functions under the Act of 1956 shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government. It is also provided under section 20(2) of the Act of 1956 that in case any dispute arises between the Central Government and the UGC as to whether a question is or is not question of policy relating to national purposes, the decision of the Central Government shall be final. Section 20 of the Act of 1958 is quoted below:-
20. Directions by the Central Government.- (1) In the discharge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government.
(2) If any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final.
Section 25 of the Act of 1956 confers power upon the Central Government to make rules to carry out the purposes of the said Act. Under section 26, the UGC has been conferred with the power to make Regulations consistent with the provisions of the Act and the Regulations framed thereunder and such Regulations have to be published in the Official Gazettee. As per Section 26(1)(e), the UGC has no doubt power to frame Regulations with respect to defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instructions. As per Section 26(1)(f), the UGC may define the minimum standards of instruction for the grant of any degree by any University. Under Section 26(1)(g), the UGC may regulate the maintenance of standards and the coordination of work or facilities in Universities. It is also provided in sub-section (2) of Section 26 that Regulations framed under section 26(1) (a)(b)(c)(d)(h)(i)& (j) require previous approval of the Central Government. However, with respect to the matters enumerated in Section 26(1)(e)(f) and (g), approval of the Central Government is not required. Section 26 of the Act of 1956 is quoted below:-
26. Power to make regulations.-(1) The Commission may by notification in the Official Gazettee, make regulations consistent with this Act and the rules made thereunder:-
(a) regulating the meetings of the Commission and the procedure for conducting business thereat;
(b) regulating the manner in which and the purposes for which persons may be associated with the Commission under section 9;
(c) specifying the terms and conditions of service of the employees appointed by the Commission;
(d) specifying the institutions or class of institutions which may be recognized by the Commission under clause (f) of section 2;
(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instructions.
(f) defining the minimum standards of instructions for the grant of any degree by any University;
(g) regulating the maintenance of standards and the coordination of work or facilities in Universities.
(h) regulating the establishment of institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions;
(i) specifying the matters in respect of which fees may be charged and scales of fees in accordance with which fees may be charged by a college under sub-section (2) of section 12A;
(j) specifying the manner in which an inquiry may be conducted under sub-section (4) of section 12-A, (2) No regulation shall be made under clause (a) or clause (b) or clause (c) or clause (d) or clause (h) or clause (i) or clause (j) of sub section (1) except with the previous approval of the Central Government.
(3) The power to make regulations conferred by this section except clause (i) and clause (j) of sub section (1) shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.
Thus, it is apparent that 3rd Amendment Regulations of 2009 and Regulations of 2010 framed by the UGC have statutory force. The University Grants Commission (Minimum Qualifications required for the appointment and Career Advancement of teachers in Universities and Institutions affiliated to it) Regulation, 2000 contained Note to Regulation 1.3.3, 1.4.3, 1.5.3 and 1.6.1 and the said Note was amended initially in 2002 and thereafter, in 2006, with which amendments we are not concerned and the said Note was further amended by way of 3rd Amendment Regulations of 2009 to the effect quoted above. It is apparent from the Note contained in the 3rd Amendment Regulations 2009 that NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers of Universities/ Colleges/Institutions. It is also apparent from the proviso appended to the Note that candidates, who are or have been awarded Ph.D. Degree in compliance of the Minimum Standards Regulations of 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions.
The UGC has further framed the Regulations of 2010 vide Notification dated 30th June, 2010 and the same were published in the Gazette of India on 18th September, 2010. Clause 3.0.0. contained recruitment and qualifications and Clause 3.3.1 makes it clear that NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions. However, it was provided that candidates, who are or have been awarded a Ph.D. Degree in accordance with the Minimum Standards Regulations of 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions. The UGC has not framed any other Regulations contrary to the aforesaid. However, UGC was clearly of erroneously legal opinion that in case only those candidates, who are or have been awarded Ph.D. Degree in compliance of Minimum Standards Regulations of 2009, are exempted from qualifying NET/SLET/SET, it would be giving of retrospective effect to the 3rd Amendment Regulations of 2009 & Regulations of 2010. There was no question of any room to form such opinion or to pass independent resolution by UGC as the Regulations are binding on it, it cannot violate them and the appointments are governed by the provisions in vogue when the advertisement has been issued and process of recruitment has been initiated; merely by the fact that some of the incumbents have obtained M.Phil./Ph.D. qualification at the time when there was exemption from passing NET/SLET/SET, such exemption can always be taken away with prospective effect; they are seeking appointment on the post of Assistant Professor/Lecturer or equivalent post at present, it would not amount to giving of retrospective effect to 3rd Amendment Regulations of 2009 and Regulations of 2010 as framed by the UGC itself. Thus, Union of India was right in rejecting the opinion formed/resolution passed by UGC. The UGC has in fact not amended the Regulations and once it has not amended the Regulations, there was no room for the UGC to grant exemptions; such exemptions are not contemplated in the Regulations framed by the UGC itself; UGC is bound by its Regulations; it was harping upon ill founded opinion with respect to retrospectivity of the 3rd Amendment Regulations of 2009 and the Regulations of 2010. Thus, no assistance can be derived by the petitioners from the resolutions passed by the UGC as the said resolutions ultimately did not culminate into formation of the Regulations; once UGC has framed Regulations, they are binding upon it and no departure can be made from them; the resolutions are juxtaposed to the 3rd Amendment Regulations of 2009 and thus, had no legal sanctity and rightly turned down by the Central Government.
Coming to the question whether the impugned Regulations framed by the UGC can be said to be ultra vires, we are unable to accept the submission that Regulations have been given retrospective effect, hence, they become ultra vires; in-fact no retrospective effect is given; it cannot be said that 3rd Amendment Regulations of 2009 and Regulations of 2010 are retrospective in nature; the relevant date is of seeking appointment, thus, it cannot be said that there is any vested right accrued to the petitioners to seek appointment without obtaining NET/SLET/SET. Once such rider has been put under the Regulations itself, which have been framed with avowed purpose and considering deterioration and falling standard of admission to M.Phil and Ph.D., varying standard in various Universities and to ensure maintenance of standards for higher education, no departure can be made from such rider and it is binding and by putting that rider, it cannot be said that any vested right of the petitioners has been violated or infringed in any manner. Effort was to ensure improvement of teaching standard. The Central Government had power to issue requisite directions under section 20(1) of the Act of 1956 and has rightly opined that the opinion of the UGC was ill-founded and there was no question of applicability of impugned Regulations of 2009 and 2010 with retrospective effect by not exempting Ph.D./M.Phil degree holders who have passed earlier. Even otherwise, once the policy matter has been implemented by UGC and framed the Regulations, there was no question of extending exemptions by giving go-bye to the said Regulations. When we consider the directions (1) to (3) issued under section 20(1) of the Act of 1956 by the Union of India in its communication dated 12th November, 2008, which have been quoted above, it becomes apparent from direction (1) that UGC was required to frame appropriate regulations for serving the national purpose of maintaining standards of higher education; UGC was mandated to frame Regulations within 30 days; NET/SLET shall generally be compulsory for all persons appointed to teaching positions of Lecturer/Assistant Professor in higher education; persons who possess degree of Ph.D. after having been enrolled/admitted to a programme notified by the Commission, after it has satisfied itself on the basis of expert opinion, has to be or have always been in conformity with the procedure of standardization of Ph.D. prescribed by it and also that the degree of Ph.D. was awarded by a University or Institution deemed to be University notified by the UGC as having already complied with the procedure prescribed under the regulations framed by the Commission for the purpose.
As per direction (2) contained in the communication of the Union of India dated 12th November, 2008, the UGC was required to notify the date or dates from which exemption from qualifying in NET/SLET in respect of Universities/Institutions Deemed to be Universities as well as the discipline for which such exemption is being granted only on the recommendations of a Committee of Experts to be constituted by the Commission and that the experts therein shall be persons of high eminence in the respective disciplines for which the persons possessing Ph.D. are considered for exemption from qualifying NET/SLET. Thus, exemption can be granted only on the recommendations of the Committee of experts consisting of persons of high eminence with respect to course done under Minimum Standards Regulations.
As per direction (3) contained in the communication of Union of India dated 12th November, 2008, the UGC shall not give any blanket or general exemption from NET/SLET to any University/Institution Deemed to be University unless the degree of Ph.D. awarded by it in all disciplines or programmes meet the same level of rigour in terms of standards and quality as laid down by the Commission for each discipline under the regulations for the purpose. Such exemption was also further subject to the University/Institution continuing to comply with the regulations of the UGC.
Thus, it is apparent from the aforesaid directions (1) to (3) issued by the Union of India under section 20(1) of the Act of 1956 vide letter dated 12.11.2008 and the 3rd Amendment Regulations of 2009 that NET/SLET is minimum eligibility condition for recruitment and appointment of Lecturer/Assistant Professor and only those candidates, who are or have been awarded Ph.D. degree in compliance of the Minimum Standards Regulations of 2009, shall be exempted from the requirement of minimum eligibility condition of NET/SLET. It is further apparent that though NET/SLET is compulsory for all persons appointed to teaching positions of Lecturer/Assistant Professor in higher education, however exemption from qualifying NET/SLET can be granted only on the recommendations of the Committee of Experts consisting of persons of high eminence and no blanket or general exemption from NET/SLET could have been granted by the UGC which was further subject to observance of Regulations framed by it and the UGC was supposed to undertake the exercise. Obviously, the impugned Regulations are prospective in nature and when a rider has been put by the UGC itself under the Regulations, there was no room for the UGC to grant exemptions giving go bye to the Regulations framed by it and to act against the national policy directive. It was not open to the UGC to take decision contrary to the Regulations framed by it. The opinion of UGC granting exemptions was ill-founded and not in accordance with correct position and based on wrong interpretation of Regulations and thus, the same was rightly turned down by the Central Government.
It was submitted by Mr.S.P.Sharma, learned Senior Counsel that 3rd Amendment Regulations of 2009 and the Regulations of 2010 use the words who are and this reflects to past event. The word who are used in the proviso to the Note contained in the 3rd Amendment Regulations of 2009 and the Regulations of 2010 relate to the complete event of award of M.Phil or Ph.D. as the case may be. We are unable to accept the aforesaid submission, as the insistence is upon award of M.Phil./ Ph.D. degree in compliance of Minimum Standards Regulations of 2009; it cannot be said that incumbents, who have passed M.Phil/Ph.D. earlier are having M.Phil./Ph.D. in compliance or accordance with the Minimum Standards Regulations of 2009; if the submission of petitioners is accepted, it would defeat the purposive interpretation, objectives of issuance of directions/guidelines by the Union of India under section 20(1) of the Act of 1956 and the purpose of framing 3rd Amendment Regulations of 2009 and Regulations of 2010; there is no room for such interpretation as suggested by the petitioners; the impugned Regulations are prospective in nature and cannot in any manner be said to be arbitrary or illegal or ultra vires or repugnant to Article 14 of the Constitution of India.
The petitioners have placed reliance on the Division Bench decision of Allahabad High Court in the case of Dr.Ramesh Kumar Yadav (supra) in which it was held that Central Government does not possess the requisite power and authority to set aside or annul the recommendations of the UGC and the Regulations made by it under section 26(1)(e) of the Act of 1956; exemptions given by UGC to those, who were awarded Ph.D. Degrees prior to 31.12.2009 before the enforcement of the Regulations of 2009, is not a question of policy relating to national purpose as envisaged under section 20(1) of the Act of 1956; Central Government does not possess any supervisory powers in the matters of laying down minimum qualifications for appointment of teachers of the University; the amendment made by way of 3rd Amendment Regulations of 2009 has been held to be prospective in nature. The Allahabad High Court has further held that Ph.D. holders, who were awarded Ph.D. degrees prior to 31.12.2009 cannot be said to have legitimate expectation maturing into any right to be considered for appointment on teaching posts in the University, without obtaining the NET/SLET/SET qualifications, unless the UGC has provided for any exemptions; as the petitioners of that case were awarded Ph.D. degrees in the year 2009 and in the year 2003 respectively prior to enforcement of the 3rd Amendment Regulations of 2009, they have been held to be eligible, even if they are not NET/SLET/SET qualified, if they have been awarded Ph.D. degree with any six conditions out of 11 recommended by the UGC prior to 31.12.2009.
We are unable to agree with the opinion expressed by the Allahabad High Court in the case of Dr.Ramesh Kumar Yadav (supra). The Allahabad High Court has proceeded on the assumption that with respect to grant of exemptions under the 3rd Amendment Regulations of 2009 and Regulations of 2010, opinion of the UGC was binding upon the Central Government considering the fact that it was having regulations making power under section 26(1)(e) (f) and (g) of the Act of 1956 which does not require prior approval of the Central Government. In this regard, when we consider the 3rd Amendment Regulations of 2009 and the Regulations of 2010, they are themselves clear and the High Court of Allahabad has clearly over looked what is the effect of Regulations framed by UGC and whether it was open to the UGC to pass resolutions with respect to grant of exemption when it was not authorized to grant exemption under the Regulations framed by it. Even as per the directions issued by the Central Government under section 20 (1) of the Act of 1956, no blanket or general exemption could have been granted by the UGC from NET/SLET. There was no question of holder of M.Phil/Ph.D. who have undertaken the course as per Minimum Standards Regulations of 2009, to seek exemption from UGC. The Allahabad High Court has also failed to consider that it was not the case of retrospective operation of 3rd Amendment Regulations of 2009 and Regulations of 2010 framed by the UGC, only the opinion/resolution of UGC was ill-founded and the same was not found to be in accordance with the correct position of law by the Central Government. The appointments are to be made as per the Regulations in vogue at the relevant time and as per advertisement and Regulations, NET/SLET/SET was minimum eligibility condition for recruitment and appointment of Lecturer in Universities/Colleges/Institutions and only those candidates, who are or have been awarded Ph.D. degree in compliance or accordance with the Minimum Standards Regulations of 2009 have been exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions and this is not the case of the present petitioners. The Central Government has appointed Expert Committee, which has made wide consultations through out India from various Academicians, Scientists, Administrators etc. and thereafter, considering the report of the Expert Committee, national policy of education was issued as education is subject of Union of India as per Entry 66 of List I of Seventh Schedule of the Constitution. It was open to the Union of India to issue national policy considering deterioration and fall of standards in various Universities with respect to award of M.Phil/Ph.D. We respectfully disagree with the opinion contrary to it formed by High Court of Allahabad. Thus, in our opinion, the Central Government has rightly issued directions and it has not tried to act as expert, but since the opinion of the UGC was ill founded, not in accordance with the correct position and based on wrong interpretation of the Regulations, the same was turned down.
The conclusion no.1 recorded by the Allahabad High Court is that the Central Government, in exercise of its powers under section 20(1) of the Act of 1956, does not possess powers and authority to set aside or annul the recommendations of the UGC. No doubt UGC has been given power under section 26(1)(e) of the Act of 1956 to frame regulations, however, it is open to the Central Government to decide the question of national policy and to issue requisite directives to the UGC. It is different question that once Regulations have been framed under section 26(1)(e) of the Act of 1956, it does not require prior approval of the Central Government, but directions have been issued by the Central Government with respect to national policy of education for maintaining standard of higher education for admission to the course of M.Phil./Ph.D. etc. with a view to ultimately ensure higher teaching standards. The holder of Ph.D. and M.Phil. degree can still opt for NET/SLET and can seek appointment, they are not deprived of such opportunity. Since the Regulations have been framed by the UGC itself as per directions issued by the Central Government, the UGC was bound by its own Regulations and the Central Government has not set aside or annul any of the Regulations framed under section 26(1)(e) of the Act of 1956; as a matter of fact, ill-founded opinion/resolution of UGC contrary to Regulations was rightly turned down by the Central Government; the Central Government at no point of time has sit over the Regulations framed by the UGC under section 26(1)(e) of the Act of 1956.
The Allahabad High Court has further held that exemption given by UGC to those who are awarded M.Phil/Ph.D. degrees prior to 31.12.2009 before the enforcement of the Regulations of 2009, is not a question of policy relating to national purpose. We respectfully disagree with the aforesaid opinion expressed by the Allahabad High Court as once Regulations have been framed by the UGC, they are binding upon it and it was not open to the UGC to grant exemptions in view of the Regulations framed by it and national policy is binding on it and in case of any conflict between the Central Government and UGC, as provided in Section 20(2) of the Act of 1956, the opinion of the Union of India would be binding; as there was clearly a dispute with respect to exemption between the Central Government and UGC, the opinion of the Central Government has to prevail, which is based on national policy, which has taken the shape into the 3rd Amendment Regulations of 2009 and the Regulations of 2010. The UGC was supposed to act in accordance with the Regulations framed by it and could not have resolved for grant of exemptions on the ground that it would be giving retrospective effect to the Regulations whereas it was not so.
It has been observed by the Allahabad High Court that Ph.D. holders, who were awarded Ph.D. degrees prior to 31.12.2009, cannot be said to have legitimate expectation maturing into any right to be considered for appointment on teaching posts in the University, without obtaining the NET/SLET/SET qualifications, unless the UGC has provided for any exemptions. If it is taken to the logical conclusion, it would mean that Regulations prevailing on the date of seeking appointment and issuance of advertisement are relevant. In our opinion, no exemption could have been made in view of the Regulations framed by the UGC which are binding otherwise it would be difficult to maintain standard of higher education through out the country and standard of education is clearly a national policy and thus, education being primarily subject of the Central Government, it has power to issue directions to the regulatory statutory body like UGC with respect to Nation Education Policy and no Government can become moot spectator to the deteriorating or falling standard of education degrees of M.Phil/Ph.D. and thus, with a view to improve the standard of education, the Central Government can issue directions to the statutory body like UGC by virtue of Section 20 (1) of the Act of 1956 read with Entry 66 of List I of Seventh Schedule of Constitution of India. The necessary directions were issued by the Central Government for framing of Regulations under section 26(1)(e) on 12th November, 2008 based on the report of Expert Committee and thus, policy matter is binding and once Regulations have been framed in accordance with the directions issued by the Central Government, UGC could not deviate or say go-bye to the said Regulations. The opinion of the UGC contrary to the Regulations was rightly turned down by the Central Government as the same was ill founded, palpably erroneous and based on wrong interpretation of Regulations. The Central Government vide letter dated 3rd November, 2010 rightly opined that since by Commission's own admission, the regulations are prospective in nature and not retrospective, invoking the proviso to UGC (Minimum qualifications required for the appointment and Career Advancement of teachers for Universities and institutions affiliated to it) Regulations, 2000 is clearly incongruous. The present regulations in force do not have any provisions for exemption of candidates who are not NET/SLET qualified. In the above circumstances, the Government of India has opined and reiterated the directions issued under section 20(1)of the Act of 1956 in making NET/SLET compulsory for teaching positions as a policy relating to national purposes of maintenance of standards of higher education. The relevant portion of the letter of Ministry of Human Resource Development, Government of India dated 3.11.2010 is quoted below:-
In this connection, I am desired to convey to you that said resolutions are against the letter and spirit of the regulations issued by UGC from time to time regarding compulsory NET/SLET qualifications for appointment to Lecturers/Asstt.Professors. The above mentioned resolution perhaps does not take into account the fact that appointments, if any, pursuant to the date of coming into force of these regulations are bound to be prospective only. Appointments can never be made with retrospective dates. Therefore, exempting the candidates from NET/SLLT requirement, who are going to be appointed or have been appointed after 11th July, 2009 would be violative of the UGC (Minimum qualifications required for the appointment and Career Advancement of teachers for Universities and institutions affiliated to it) (3rd amendment) Regulations, 2009.
Regarding the plea that since proviso to UGC (Minimum qualifications required for the appointment and Career Advancement of teachers for Universities and institutions affiliated to it) Regulations, 2000 remained in force till the notification of UGC (Minimum qualifications for appointment teachers and other Academic Staff in Universities and Colleges and measures for Maintenance of Standards in High Education) Regulations, 2010 and hence UGC can consider and dispose of the applications received seeking exemption from NET requirement, against is not tenable. This resolution does not take into account the UGC (Minimum qualifications required for the appointment and Career Advancement of teachers for Universities and institutions affiliated to it) (3rd amendment) Regulations, 2009 at all, wherein a blanket ban was imposed on non-NET/SLET qualified candidates. Similarly, since by Commissions' own admission, the regulations are prospective in nature and not retrospective, invoking the proviso to UGC (Minimum qualifications required for the appointment and Career Advancement of teachers for Universities and institutions affiliated to it) Regulations, 2000 is clearly incongruous. The present regulations in force do not have any provisions for exemption of candidates who are not NET/SLET qualified. In the above circumstances, I am desired to draw your attention and reiterate the directions issued under section 20(1) of the UGC 1956 in making NET/SLET compulsory for teaching positions as a policy relating to national purpose of maintenance of standards of higher education.
Thus, we respectfully disagree with the views to the contrary expressed by the Allahabad High Court in the case of Dr.Ramesh Kumar Yadav (supra).
We deem it proper to place on record the decision of the Apex Court in University of Delhi V/s Raj Singh and ors. (supra) in which the Apex Court has upheld similar conditions of NET imposed earlier in the Regulations of 1991. Provision requiring the candidates possessing requisite educational qualifications to appear at a written test to determine their proficiency for holding that post was held to be intra vires. The Apex Court has laid down thus:-
9. In 1986 the U.G.C. appointed a committee of eminent men in the field of under the chairmanship of Prof. R.C. Mehrotra to examine the structure of emoluments and conditions of service of University and college teachers and to make recommendations in this behalf "having regard to the necessity of attracting and retaining talented persons in the teaching profession and providing advancement opportunities to teachers of Universities and colleges". The Mehrotra Committee noted what the Sen Committee and the Review Committee of the U.G.C. 1977, had said in regard to the need for improved qualifications of teachers and observed that whereas high Standards of M.Phil and Ph.D. continued to be maintained in a number of Universities, the standards appeared to have been diluted at several places because of unplanned growth, inadequate faculty and lack of infrastructure facilities. It was underlined that one very serious consequence of dilution of minimum standards for initial recruitment had been that already existing disparities in the standards of teaching between rural colleges, urban colleges, State Universities and Central Universities had tended to get further aggravated. The Mehrotra Committee recommended that the minimum qualification for eligibility to a lecturer's position should be a good M.A., M.Sc., M.Com., or equivalent degree. While making this recommendation the committee expressed its full consciousness of the importance of research experience and capability as an essential input for efficiency and quality of teaching in most disciplines at the tertiary (lecturer's) level. It therefore, strongly recommended the creation of much better research facilities for universities and colleges, particularly those dealing with post-graduate education to start with. This would enable brilliant lecturers recruited without an M.Phil or Ph.D. degree to pursue course and research work in their own institutions which could be followed for the completion of their dissertation by more specialised research for a limited period in a more advanced center of learning or research. In order to ensure the quality of new entrants to the teaching profession, the Mehrotra Committee recommended that all aspirants for the post of lecturer in a University or college should have passed a national qualifying examination. This recommendation, it said, was in line with the recommendation of the National Commission on Teachers II. Such a test would have the merit of removing disparities in standards of examination at the Master's level between different Universities. The Mehrotra Committee hoped that by this step local Influence would be minimised and the eligibility zone for recruitment would be come wider. The proposed examination was to be a qualifying one in the sense that it determined only eligibility and not selection. The Mehrotra Committee recommended the following minimum qualification for the post of lecturer :
(i) Qualifying at the National Test conducted for the purpose by the UGC or any other agency approved by the UGC.
(ii) Master's degree with at least fifty five per cent marks or its equivalent grade and good academic record.
The minimum qualifications mentioned above should not be relaxed even for candidates possessing M. Phil, Ph.D., qualification at the time of recruitment.
10. A Conference of Vice Chancellors was held under the auspices of the U.G.C. in 1989. Among the major recommendations made by the conference was one that related to the "implementation of qualifying test for recruitment of lectures". The recommendation read thus :
The National level test to determine the eligibility for lecturers be conducted. When the State Government conducts such tests, while accrediting them caution be exercised. It was also suggested that the test in regional languages be also conducted.
11. Following up on the Mehrotra Committee report the Department of Education, Ministry of Human Resources Development, Government of India wrote to the U.G.C. On 17.6.1987 on the subject of revision of pay-scales in Universities and colleges and other measures for the maintenance of standards in higher education. The letter stated that the Government of India had, after taking into consideration the recommendations of the U.G.C. (based upon the Mehrotra Committee report) decided to revise the pay-scales of teachers in the Central Universities. To enable the same to be done in the State, separate letter had been addressed. A scheme for the revision of pay-scales was appended to the letter, which would be applicable to teachers in all the Central Universities, the colleges in Delhi and the institutions deemed to be University whose maintenance expenditure was met by the U.G.C. The implementation of the scheme would be subject to acceptance of all the conditions attached to the scheme. The letter stated that the Universities should be advised to amend their Statutes and Ordinances before the revised Scales became operational. For our purposes, the relevant portion of the scheme reads thus :
Only those candidates who, besides fulfilling the minimum academic qualifications prescribed for the post of lecturer, have qualified in a comprehensive test, to be specially conducted for the purpose, will be eligible for appointment as lecturers. The detailed schemes for conducting the test including its design, content and administration will be worked out and communicated by the UGC.
16.......Mr. Rao sought to rely upon the judgment of this Court in Lila Dhar v.State of Rajasthan (1981) 4 SCC 159, to support the argument that a written test was unfair and irrational in the case of appointments of candidates belonging to a major age group. We shall assume that this decision so holds, but it is, in the facts and circumstances of the present case, of little assistance. It is very evident that large numbers of educationists themselves have over the years strongly recommended the imposition of a written test for candidates holding degrees from Universities all over the country because of the lack of an uniform standard and it is not for this Court to say that they were wrong. Again, the judgments in Sanatan Gauda V/s.Berhampur University [1990] 3 SCC 23 and Ambesh Kumar (Dr.) V/s .Principal, LLRM Medical College Meerut 1986 Supp SCC 543, were cited by Mr. Rao in support of the proposition that the test prescribed by the said Regulations treated unequals as equals, the unequals being those who possessed higher qualifications like M. Phil. & Ph.D. and those who were already lecturers in other Universities and colleges. As we see it, all applicants for the post of lecturer are equally placed and must be similarly treated.
20...It is very important to note that a duty is cast upon the Commission to take "all such steps as it may think fit... for the determination and maintenance of standards of teaching". These are very wide ranging powers. Such powers, in our view, would comprehend the power to require those who possess the education qualifications required for holding the post of lecturer in Universities and colleges to appear for a written test, the passing of which would establish that they possess the minimal proficiency for holding such post. The need for such test is demonstrated by the reports of the commissions and committees of educationists referred to above which take note of the disparities in the standards of education in the various Universities in the country. It is patent that the holder of a post-graduate degree from one University is not necessarily of the same standard as the holder of the same post-graduate degree from another University. That is the rationale of the test prescribed by the said Regulations. It falls squarely within the scope of Entry 66 and the U.G.C. Act inasmuch as it is intended to co-ordinate standards and the U.G.C. Act is armed with the power to take all such steps as it may think fit in this behalf...
22. Mr. Rao was at pains to tell us that there were men and women in the field of education who possessed far higher qualifications than the minimum prescribed for lecturers who were willing to join the Delhi University as Lecturers but would be deterred from doing so by reason of the test prescribed by the said Regulations. We have no doubt that there must be highly qualified men and women in the country who, to serve their chosen field, would be willing to become lecturers. We have no doubt that they would appreciate the sound objective of the said Regulations and would, therefore, not consider it infra dig to appear at and clear the test prescribed thereby. .....
We also deem it proper to place on record the decision of the Delhi High Court in the case of All India Researchers' Coordination Committee (supra) in which the Delhi High Court has held that directions issued by the Government of India under section 20(1) of the Act of 1956 are binding on the UGC and in order to check deterioration of quality of degrees of M.Phil/Ph.D. and ensuring teaching standards in higher education, directions have been issued to the Universities/Colleges/Institutions; Regulations of 2009 were neither arbitrary nor irrational and they are in no way retrospective in nature; the Regulations of 2009 framed by the UGC were held to be intra vires.
In the case of P.Suseela (supra), the Division Bench of Madras High Court has observed that the Government of India, Ministry of Human Resources felt the need to introduce NET as compulsory for the purpose of teaching post in order to upgrade the standard of teaching and for that purpose, Expert Committees were constituted consisting of eminent experts and academicians, who recommended that NET/SLET should be retained as compulsory requirement for appointment of Lecturers irrespective of the candidates possessing degree in M.Phil or Ph.D. and after considering the report of Prof.Mungekar Committee, the University Grants Commission was directed to frame regulations to serve the national purpose of maintaining standards of higher education, but the UGC, without considering the object and purpose of raising the standard of education and without considering the global scenario, although framed Regulations, but tried to give certain relaxation to the candidates from appearing in NET/SLET examination and therefore, the Central Government has rightly refused to approve the opinion of the UGC and the impugned Regulations and the decision of the Central Government cannot, by any stretch of imagination, be held to be illegal, arbitrary or whimsical, rather the decision was rational and based on public interest and also national policy to upgrade the standards of education in the country.
In view of the discussion made above, in our opinion, there was no justification whatsoever for the UGC to pass resolutions granting exemptions in contravention of the Regulations framed by it; the UGC is bound by the Regulations framed by it and cannot act against the same and spirit of national policy directives. Since the resolutions of UGC are based on ill-founded opinion, wrong interpretation of Regulations, not in conformity and tune with the Regulations and the national policy directives, the same were rightly turned down by the Central Government. The decision of the Central Government cannot in any manner be regarded as suffering from any illegality or vice of arbitrariness, rather appears to be just, proper and reasonable one especially considering the opinion expressed by the Expert Committees making NET/SLET etc. compulsory to raise the quality and standards of higher education.
It was also submitted by Ms.Naina Saraf, learned counsel that the petitioners are entitled for exemption of having atleast 55% marks at the master's degree level as it is permissible in exceptional cases. However, in view of the aforesaid opinion expressed by us, leaned counsel does not press the said submission though it was raised during the course of arguments. As such, we leave the matter at that.
Lack of legislative competence has not been urged. There is no violation of fundamental rights guaranteed under the Constitution. There is no violation of any of the provisions of the Constitution. The impugned Regulations have been framed in exercise of power conferred under section 26(1)(e) of the Act of 1956 and they are in tune with the directions issued by the Central Government under section 20(1) of the Act of 1956; they cannot in any manner be said to be ultra vires or illegal or arbitrary or unreasonable or irrational; they also cannot be said to be retrospective in nature, rather they are prospective in nature. There is also a presumption in favour of constitutionality or validity of a subordinate legislation and the UGC has not exceeded the power while framing the impugned Regulations. The act of UGC is concomitant of expression of Entry 66 of List-I of Seventh Schedule of the Constitution and the UGC has carried out the objectives of the national policy. Thus, we have no hesitation to dispel the challenge to the vires of the University Grants Commission (Minimum qualifications required for the appointment and Career Advancement of teachers in Universities and Institutions affiliated to it) (3rd Amendment) Regulations, 2009 and the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010.
Resultantly, the writ petitions being bereft of merits are hereby dismissed. Cost is made easy. A copy of this order be placed in all files.
(NARENDRA KUMAR JAIN-I), J. (ARUN MISHRA), C.J. Parmar
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
N.K.Parmar, PS.