Punjab-Haryana High Court
Ramesh Kumar vs State Of Haryana And Others on 30 January, 2017
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.13527 of 2013 (O&M)
CWP No.21838 of 2013
CWP No.22627 of 2013
CWP No.26527 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CWP No.13527 of 2013 (O&M)
Dr. Ramesh Kumar ... Petitioner
Versus
State of Haryana and others
... Respondents
2. CWP No.21838 of 2013
Dr. Ramesh Kumar ... Petitioner
Versus
State of Haryana and others ... Respondents
3. CWP No.22627 of 2013
Dr. Satish Kumar Bhardwaj ... Petitioner
Versus
State of Haryana and others ... Respondents
4. CWP No.26527 of 2013 (O&M)
Dr. Ajit Singh ... Petitioner
Versus
State of Haryana and others ... Respondents
Date of Decision: 30.01.2017
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. R.K Malik, Sr. Advocate, with
Mr. Sajjan Singh Malik, Advocate,
for the petitioner in CWP No.13527 of 2013.
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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Mr. Yogesh Chaudhary, Advocate,
for the petitioner in CWP No.22627 of 2013.
Mr. Rajinder Singh Mann, Advocate,
for the petitioner in CWP No.26527 of 2013.
Mr. M.K. Mittal, Advocate,
for the petitioner in CWP No.21838 of 2013.
Ms. Shruti Jain Goyal, AAG, Haryana.
Mr. H.N. Mehtani, Advocate, for respondent No.2
in CWP Nos.13527, 22627 and 26527 of 2013.
Mr. R.Kartikeya, Advocate,
for respondent No.3 in CWP No.13527 of 2013.
Mr. Girish Agnihotri, Sr. Advocate,
with Mr. Arvind Seth, Advocate,
for respondent No.4 in CWP No.13527 of 2013.
for respondent No.5 in CWP Nos.21838 and 22627 of 2013.
Mr. Ramandeep Singh, Advocate,
for respondent No.4 in CWP No.22627 of 2013.
Mr. Anil Ghanghas, Advocate,
and Mr. Sunil Panwar, Advocate,
for respondents No.3, 4 & 7
in CWPs No.21838 & 13527 of 2013
Mr. Kanwal Goyal, Advocate,
for respondent No.2 in CWP No.21838 of 2013.
Mr. Dinesh Arora, Advocate,
for respondent No.8 in CWP No.13527 of 2013.
RAJIV NARAIN RAINA, J.
1. This order will dispose of CWP No.13527 of 2013 titled Dr.
Ramesh Kumar v. State of Haryana and others, CWP No.21838 of 2013
titled Dr. Ramesh Kumar v. State of Haryana and others, CWP No.22627 of
2013 titled Dr. Satish Kumar Bhardwaj v. State of Haryana and others &
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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CWP No.26527 of 2013 titled Dr. Ajit Singh v. State of Haryana and others
as common questions of law and fact are involved therein which can
conveniently be decided by a common order.
2. Question No.(vii) posed in my interim order dated August 02,
2016 calling upon the Principal Secretary to Government of Haryana,
Higher Education Department to explain why the requisition of the State
Government was sent in 2011 clubbed for the post of Principals and Deputy
Directors and in case the State is unable to justify this clubbing then why
should not the selection and appointments be confined to the post of Deputy
Directors and accordingly seven posts declared vacant retrospectively for
filling afresh from open market after following the new criteria with API
Record System added to the selection process as its inherent part as it
prevailed on the date of the recommendations by the Commission has been
adequately answered in the additional affidavit the Principal Secretary to
Government of Haryana, Higher Education Department, Chandigarh to
satisfy the insistence of Mr. Sajjan Singh Malik, learned counsel that this
query remains at large and not answered. More will follow on this issue in
the course of the opinion.
3. The answer to this controversy lies in the Appendix to the
Haryana Education (College Cadre) Group-A Service (Amendment) Rules,
2005 [for short "the Rules, 2005"] itself where both the posts are clubbed
and made inseparable. The State has explained that Principals work in
colleges and when posted to the Directorate they discharge duties and
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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responsibilities of administrative office and not in the classroom. Principals
become Deputy Directors and Deputy Directors resume their work as
Principals on posting and transfers. They are, therefore, one and the same
thing under twin designation depending on the exigencies of administration
of who is placed where by posting. Those Principals who are found
complacent with rules, regulations and principles of governance are brought
to headquarters of the Higher Education Department, Haryana to perform
purely administrative functions. Both the designations are twins which
cannot be separated for different treatment from the point of view of
selection and appointment. There is thus no occasion to declare seven posts
of Principals vacant for fresh selection. The Court is satisfied with the
explanation given in the additional affidavit of the Principal Secretary as
unexceptionable and the stand is in accordance with the rules and to the
contrary holding otherwise would amount to re-writing the rules.
4. The keen contest in this petition and the grounds for battle is
regarding the selection to seven posts of Principals in Government
Colleges/Deputy Director against vacancies advertised on October 19, 2012
from general and reserve category by way of direct recruitment. The post of
Principal/Deputy Director is governed by the provisions of the Rules, 2005
which provide that the post will be filled by promotion from amongst
college Lecturers or by direct recruitment in the ratio of 75:25. The present
case involves direct recruitment. Since we are not concerned with
promotion the conditions of eligibility prescribed for direct recruitment in
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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the Appendix to the Rules, 2005 is to the following effect:-
"4.2.0. PRINCIPAL
i. A Master's Degree with at least 55% marks (or an
equivalent grade in a point scale wherever grading
system is followed) by a recognized University.
ii. A Ph.D. Degree in concerned/allied/relevant
discipline(s) in the institution concerned with evidence
of published work and research guidance.
iii. Associate Professor/Professor with a total
experience of fifteen years of
teaching/research/administration in Universities,
Colleges and other instittutions of higher education.
iv. A minimum score as stipulated in the Academic
Performance Indicator (API) based Performance
Based Appraisal System (PBAS), as set out in this
Regulation in Appendix III for direct recruitment of
Professors in Colleges."
5. It is the common ground that the essential qualifications
prescribed in the rules of service are faithfully reproduced in the
advertisement. However, the case of the petitioners is in sharp departure to
the rules of service with the argument built on the edifice of the University
Grants Commission, New Delhi notification dated June 30, 2010 in Clause
4.2.0 prescribing for the post of Principal, the following conditions:-
"4.2.0. PRINCIPAL
i. A Master's Degree with at least 55% marks (or an
equivalent grade in a point scale wherever grading
system is followed by a recognized University.
ii. A Ph.D. Degree in concerned/allied/relevant
discipline (s) in the institution concerned with evidence
of published work and reasearch guidance.
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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iii. Associate Professor/Professor with a total
experience of fifteen years of
teaching/research/administration in Universities,
Colleges and other institutions of higher education.
iv. A minimum score as stipulated in the Academic
Performance Indicator (API) based Performance Based
Appraisal System (PBAS), as set out in this Regulation
in Appendix III for direct recruitment of Professors in
Colleges."
6. It is urged that the UGC is the competent authority to prescribe
qualifications for the post of Assistant Professor, Associate Professor,
Professor/Principal of the College. It is contended that State Governments
and Universities are bound to follow the qualifications laid down by the
UGC which is the competent authority to lay down minimum qualifications
for appointment of teachers and other academic staff in Universities and
Colleges.
7. The Haryana Government vide letter dated July 21, 2011
decided to revise the minimum qualifications for the posts in issue. The
dispute in this case is that the Academic Performance Indicator (API)
dependent on Performance Based Appraisal System (PBAS) is set out in the
UGC Regulations on Minimum Qualifications for Appointment of Teachers
and Other Academic Staff in Universities and Colleges and Measures for
the Maintenance of Standards in Higher Education, 2010 ("UGC
Regulations, 2010") in Appendix III for direct recruitment of Professors in
Colleges has not been advertised as an essential part of the criteria by the
Haryana Government and, therefore, the advertisement deserves to be
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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invalidated and a fresh selection ordered by taking into account API/PBAS
scores on computation on the parameters indicated in the regulations. It is
also well settled that recommendations of the UGC apply by adoption by
State Governments and Universities and have no force of their own unless
accepted by amendment of rules, wherever necessary.
8. Much of the debate has sprung from Memo dated July 21, 2011
issued by the Financial Commissioner & Principal Secretary to Government
of Haryana, Higher Education Department to the Registrars of the four
Universities established in Haryana and to the Principals of Government
and Government Aided Private Colleges situated in the Haryana on the
subject of adoption of various recommendations of the UGC with regard to
minimum qualifications for appointment of teachers and other academic
staff in the Universities and Colleges and measures for the maintenance of
the standards of Higher Education. It will be worthwhile to quote verbatim
the memo, which reads:-
"In Supersession of this office memo No.KW-7/18-
2009 C-IV (3) dated 28.8.2009, 09.09.2009 and 29.04.2011,
the State Government after reconsidering the
recommendations of the Ministry of Human Resource
Development, Govt. of India and University Grants
Commission as conveyed vide their letter No.1-32/2006-
U.II/U.I(i) dated 31.12.2008 and letter No.F3-1/2009, dated
30.06.2010, has decided to issue a revised order on
minimum qualifications for appointment of teachers and
other academic staff in the Universities and Colleges and
measures for the maintenance of the standards of Higher
Education. The decisions taken by the State Government
are incorporated in the enclosed Appendices.
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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Anomalies, if any, in the implementation of the
scheme may be brought to the notice of Higher Education
Department for clarification.
This issues with the concurrence of the Finance
Department conveyed vide their U.O.No.1/46/2009.4PR
(FD), dated 19.07.2011." [emphasis added]
9. Vide this memo the State Government decided to issue a
revised order on minimum qualifications for the post concerned and if there
are anomalies, if any, in the implementation of the scheme they may be
brought to the notice of the Higher Education Department for clarification.
The State Government took into account the suggestions of the Ministry of
Human Resource Development, Govt. of India and the UGC in formulating
the decision. However, the State of Haryana did not amend the relevant
rules of service. Consequently, API scoring system was not introduced in
promotions.
10. It is urged by the respondent-State that API record/scoring
system is not a qualification under the UGC Act, 1956 ("1956 Act") but it is
a standard of evaluation whenever it transcribes itself into the law or in the
statutory rules. Responding to the letter dated July 21, 2011 issued by the
State Government, the Department received a communication dated August
30, 2011 from the Haryana Federation of University & College Teachers
Organization (HFUCTO) demanding that the API scoring system should be
implemented w.e.f. academic session 2012-13 as during the previous
session i.e. 2011-12, the API scoring system was in the blue print process
and was yet to be prepared and communicated to the teachers. The matter
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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was reconsidered by Government regarding implementation of API scoring
system in the academic session 2012-13 and the matter was referred to the
Finance Department, Government of Haryana.
11. The Finance Department vide letter dated August 09, 2012
while approving application of the API scoring system in recruitments and
Career Advancement Scheme (CAS) promotions of the University/College
teachers approved that they apply from session 2012-13 instead of July 21,
2011, the date when the decision was taken by the State Government.
12. Based on the advice of the Finance Department, Government
issued circular on September 19, 2012 agreeing to implement the API
scoring system w.e.f. 2012-13. After the spade work was done
advertisement No.2 /2012 was published by the Haryana Public Service
Commission inviting applications from eligible candidates with closing date
on November 19, 2012 and November 26, 2012 as a last date of receiving
applications from Forward Remote Areas etc.
13. After publication of the advertisement in the newspapers the
petitioner Dr. Ramesh Kumar made a representation vide his letter dated Nil
which was received on November 19, 2012. He sought guidelines as to
whether the API scoring system was required for the post advertised or not.
In order to decide the representation, the selection process was halted. A
three member committee was constituted under the Chairmanship of the
then Joint Director Colleges. This representation and the communication
from HFUCTO were deliberated upon and the Committee submitted its
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report vide Annex P-6. The report dated January 09, 2013 was as follows:-
"In compliance of the orders of W/DGHE at page
No.164-165 ante, the Committee met on 9.1.2013 at 3.00
p.m. under the Chairmanship of Joint Director Colleges.
The matter was thoroughly examined and discussed in view
of the query raised by Administration Branch. Following
two issues have been raised:-
1. Whether the API score will be applicable on
the direct recruitment of Principals of Govt. Colleges
through HPSC ?
2. Whether the said API Score will be
applicable on the requisition for the recruitment to 07 Posts
of Principals, the demand for which was sent to HPSC on
21.12.2011.
These issues were studied in view of letter No.7/18-
2009 CIV (3) dated 19.09.2012 issued to all the colleges
and Universities wherein it has been clarified that the
criteria of API in recruitment and promotions of
university/college teachers will be applicable from
19.9.2012. Further another letter which was issued
subsequently on 20.9.2012, was also perused vide which
the guidelines for API Score System was forwarded to
universities and colleges for strict adherence while making
promotions and recruitments. Further the State Govt. Has
already decided that API Score System would be followed
while making direct promotions to the post of Principals in
Govt. Colleges. Hence, the API Score System will also be
automatically applicable while making recruitments to the
post of Principals through HPSC.
As far as the question of applicability of API Score
System on the posts, for which requisition has already been
sent to HPSC, is concerned the committee is of the opinion
that API guidelines issued by this office for universities and
colleges be sent to the HPSC for taking necessary action.
As per these guidelines, API will be applicable on the posts
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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under reference if, the interviews are conducted after
completion of current academic session 2012-13 i.e. From
01.07.2012 to 30.06.2013 and then API Score of one year
will be required. And if the interviews are conducted prior
to 30.06.2013 API will not be applicable.
The copies of the approval of noting and letter
issued by the concerned branch alongwith guidelines are
being enclosed herewith for the consideration and further
necessary action of the concerned branch."
14. The recommendations and suggestions were approved by the
competent authority on January 22, 2013. On February 14, 2013 with HPSC
conveyed Government's opinion that if the interviews for the ongoing
recruitment are conducted after completion of the academic session 2012-13
i.e. from July 01, 2012 to June 30, 2013 then API score of one year will be
required and if the interviews are conducted prior to June 30, 2013 API
Scoring System will not be applicable. The Commission was requested to
conduct the interviews before June 30, 2013 to fill up the seven vacant posts
of Principals of Government Colleges for which the requisition had already
been sent on December 21, 2011. The academic session 2012-13 meant the
period falling between July 01, 2012 and June 30, 2013.
15. It transpired that on June 13, 2013 UGC, New Delhi issued
notification allowing the Universities either to follow the template made for
implementation of API scoring system or to device their own scoring
system. Besides, it was recommended that the API score will be used for
"screening purpose" only and will have no bearing on expert assessment of
candidates for direct recruitment or in CAS promotions. Further, these
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procedures can be followed for direct recruitment and CAS promotions
wherever Selection Committees are prescribed in the resolutions.
16. Applying these principles of evaluation of merit the Haryana
Public Service Commission interviewed the candidates and declared the
result on June 18, 2013. The present petition filed by Dr. Ramesh Kumar, an
Associate Professor was instituted on June 20, 2013 praying for quashing of
the selection of Principals/Deputy Directors of Government Colleges in
Haryana on the ground that qualifications advertised is contrary to the
qualification prescribed by UGC duly adopted by the Government of
Haryana. The recruitment was finalized on June 25, 2013 and the selected
candidates have been appointed to service.
17. The State has put in its written statement contesting the claim
of the petitioner/s. The difference between a Principal of a College/Deputy
Director, Colleges has been explained. The posts of Deputy Director
Colleges and Joint Director, Colleges is filled up on temporary basis by the
teaching faculty. The basic cadre of these officers remains the teaching field
i.e. Principal, Associate Professor and Assistant Professor. These posts do
not carry any extra remuneration and allowances etc. but do carry extra
amount of burden and responsibility which are of an altogether different
type and nature of work is different which requires knowledge of rules,
regulations, procedures of governance and the work in the Directorate at its
headquarters where Joint Directors and Deputy Directors work is more
onerous than the teaching work in the Colleges. Keeping in view the above
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position, the Haryana Government in the Higher Education Department vide
order of the Governor of Haryana dated May 06, 2011 re-designated posts
of Assistant Director (Colleges) and Deputy Director (Colleges) as Deputy
Director (Colleges) and Joint Director (Colleges) respectively.
18. It followed that when Principals are posted to Headquarters in
the Directorate in their own pay scales they assume the designations and
resume them when they are posted back to colleges. The post of Principal
and Deputy Director (Colleges) is clubbed in the Appendix to the rules and
are interchangeable, dependent on transfers and posting in the
administrative exigencies. For all intents and purposes, the two posts are
one and the same thing except as to duties attached to the post.
19. When this matter came up for the first time for effective
preliminary hearing it was argued by Mr. Malik, learned Senior counsel for
the petitioner that qualifications recommended by UGC vide letter dated
June 30, 2010 were adopted by the Haryana Government vide memo dated
July 21, 2011. Consequently, the advertisement issued was notified after
adoption and, therefore, the advertised qualification had to be in line with
the recommendations of the UGC. It was urged that there has been a failure
to advertise essential qualifications with respect to API scoring system by
the Government after their own acceptance. When the petition was filed the
petitioner had faced interview but had remained unsuccessful on merit. It
was urged that the interviews were held on March 05, 2013. This Court was
persuaded to believe on these premises (R.N. Raina, J.) that when the
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minimum UGC qualifications were not incorporated in the advertisement
the fault went to the root of selection and may tend to vitiate it. The learned
Law Officer was asked to seek instructions as to why UGC
recommendations duly accepted by the Haryana Government were not
incorporated in the advertisement and what is the effect of this. I had
ordered status quo to be maintained as on July 01, 2013 when the motion
order was issued. With the pleadings on file and an application filed to
vacate the interim order I heard the learned counsel on July 29, 2013 and
vacated the interim directions of status quo for the reason that the
petitioner's eligibility was yet to be determined by the Court and, therefore,
continuing the status quo was not justified or in public interest since the
posts of Principals should normally not be kept vacant. The balance of
convenience was prima facie found in favour of the State and the petitioner
could be easily compensated in the event of success of the writ petition
grievance could be remedied through re-conduct in case, the petition
succeeded.
20. I ordered an exercise to be conducted by the Government that
in case, API scoring system was applicable then what would be the result of
the selection and the petitioning candidates were asked to apply their full
particulars for evaluation on API standards to the authorities. Only three
candidates responded namely, Dr. Ramesh Chander Mehra, Dr. Satish
Kumar Bhardwaj and Dr. Ajit Singh, also the petitioner while the private
respondents had not by them cooperated but did so soon after. Thereafter, it
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was found that the case would have to be decided on merits as the purpose
for which API score assessment was resorted to was not resting the
controversy and that is how the matter has been posted for a consideration
on the merits of the case.
21. On August 02, 2016, I passed the following interim order
concerning issues I thought arose for the Government to express its views.
The order reads:-
"Let the Principal Secretary to Government of
Haryana, Higher Education Department file an additional
affidavit explaining:-
(i) Whether State Government vide memo dated
21.07.2011 had adopted the UGC recommendations with
regard to minimum qualifications for appointment to the
post of Principal in Colleges in Haryana and especially
with regard to API system. He would explain that when
State Government had adopted UGC guidelines on API
score in 2011 what steps were taken to amend the rules of
service, where there is no mention of API scoring system.
(ii) If the criteria of API scores is not prescribed in
the service rule would the adoption of the system in the
evaluation process for appointments of Principals/Deputy
Director then would the Adoption of UGC Guidelines
amount to executive instructions supplementing the rules
and adding condition precedent to selection and would be
deemed to have been issued under Article 162 of the
Constitution of India, and consequently, would have to be
read into the rules for selection.
(iii) He would also explain what is meant by the
word "anomaly" when used in the Memo dated 21.07.2011
and in what cases or instances can anomalies arise out of
adoption of UGC guidelines which include
recruitments/promotions made with the criteria of API
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scores.
(iv) The affidavit would also disclose the
circumstances under which the State Government wrote
letter to the HPSC, Panchkula dated 14.02.2013 (Annex R-
II) and why did the State Government after having made the
API record system applicable ask the Commission to go
ahead with the selection advising it, that in case the result
is not declared by 30.06.2013 then API score of one year
will be required to be applied and if the interviews are
conducted prior to 30.06.2013, then API record system
would not be applicable. Would this, amount to an
admission, that rules stood amended w.e.f. 1.7.2013 and
thus the UGC API record system became intrinsic in the
recruitment processes for appointment of Principals
thereafter. To also apprise Court as to why was such a
letter issued only with respect to the present selection
against seven vacancies/ posts of Principal//Deputy
Directors for which Government has sent requisition on
21.12.2011 to the HPSC. Was this inaction in colourable
exercise of power and abuse of authority aimed at avoiding
the law which State Government itself believed was a part
of the criterion for appointment.
(v) The Principal Secretary will also reflect that in
case, the Commission was unable, for one reason or the
other, unable to conduct interviews by 30.06.2013 then
would the requisition have been rendered infructuous.
(vi) When the decision of far reaching consequences
has been taken in the adoption memo dated 21.07.2011
(supra) to improve standards of appointments as envisioned
by UGC why was the requisition sent on 21.12.2011
without mentioning mandate of API score system as
intrinsic part of the recruitment process. The Principal
Secretary would also examine the fact that when the
petitioner Dr. Ramesh Kumar had, even before the
interviews, brought his grievance to the notice of the State
Government in writing that API System is mandatory, why
For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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did it not pay due attention to the representation and kept
silent on the issue which could go to the root of selection.
(vii) To explain why was the requisition sent in 2011
clubbed for the post of "Principal and Deputy Director". If
State is unable to justify this clubbing then why should not
the selection and appointments be confined to the post of
Deputy Director and the seven posts declared vacant
retrospectively for filling afresh from open market after
following the new criteria with API Record System added to
the selection process as its inherent part as it prevailed on
the date of recommendations by the HPSC.
(viii) The affidavit would also disclose the stand of
State in CWP No.8256 of 2014 as against the present one
between "appointment" and "promotion" of
Principals/Deputy Directors with reference to API record
system. He would also state in affidavit his views on the
report of the Committee appointed by the Government in
pursuance of interim orders passed by this Court and
inform whether the selected candidates had requisite API
scores and its impact on the selection process and whether
it casts a long shadow on the merit of the candidates
selected and appointed.
Let the additional affidavit be filed within three
weeks.
List on 30.08.2016.
To be shown in the urgent list.
A photocopy of this order be placed on the files of
connected cases."
22. The additional affidavit dated November 05, 2016 has been
filed by Dr. Mahavir Singh, IAS Principal Secretary to Government of
Haryana, Higher Education Department, Chandigarh who after reproducing
the special interim order has made his point-wise submissions. Most of what
I have noticed above is narrated. The API scoring system could be
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introduced only after June 30, 2013 in case the selection process was
concluded before that date. It is admitted that State Government had
adopted recommendations dated December 31, 2008 and June 30, 2010 of
the UGC vide letter dated July 21, 2011 (P-2). However, the API scoring
system was not a qualification under the UGC Act, 1956 where the word
qualification is defined as under:-
"Qualification means a degree or any other qualification
awarded by a University:"
23. In the light of the above mentioned definition, the API scoring
system could not be construed as "qualification" as it is based on
performance like teaching experience, examination duties, paper
publications, research work etc. of a teaching during his/her service and
such qualifications are not awarded by any University. Therefore, the API
score cannot be considered as a mandatory qualification. The mandatory
nature of the guidelines of the UGC dated December 31, 2008 and June 30,
2010 is confirmed vide UGC subsequent letter dated June 13, 2013 allowing
Universities either to follow the template made by it for implementation of
API scoring system or to device their own scoring system. The API score
can be used only for screening purposes and will have no bearing on expert
assessment of candidates in direct recruitment.
24. In the additional affidavit, the word "anomaly" has been
explained as to how it crept in the letter dated July 21, 2011. It is given out
that the word "anomaly" has been used in Government notification from
yesteryears while adopting the recommendations of UGC. They cite a
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previous order dated December 08, 2000 where the heading came from and
without due application of mind has been continued to be printed
mechanically without paying due thought and regard to its implications. It
has been explained that when the word anomaly was used for the first time
in the Haryana Government notification dated December 08, 2000 (Annex
D-3) in para.6 of the letter it was in connection with revision of pay scales
of teachers of Universities and Colleges. The notification has nothing to do
with essential qualifications or standards of higher education. I find that
there is sufficient explanation on the word "anomaly" in the additional
affidavit which satisfies the Court on its query. If a decision was taken by
the Government to implement the API scoring system w.e.f. 2012-13 it was
on the voice of HFUCTO, a body which represented the teachers and
Principals of Colleges in Haryana. It was on their grievance that the matter
was re-considered and re-examined by the Government regarding
implementation of API scoring system duly recommended by the Finance
Department on June 30, 2012. That is why the system was not made
effective from July 21, 2011 for the session ending June 30, 2012. It was
after this decision was taken that the advertisement was published and no
one can have any complaint regarding this.
25. It is the contention of Ms. Shruti Goyal appearing for the State
that the rules of the game were laid down in the advertisement and those
were followed by the Commission and the Government religiously. Even
the representation of the petitioner was paid due attention and a three
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Member Committee was constituted on January 09, 2013 to look into his
grievance. Government did not treat the request of the petitioner lightly and
instead the report of the Committee was processed up to the highest quarters
before initiating the recruitment process. After all, the requisition was sent
by the State Government to the Commission on December 21, 2011 and it
was on the request of HFUCTO and the petitioner which consumed time of
the Government in taking a rational, uniform and conscious decision to
apply the API score system only after June 30, 2013. Therefore, it cannot be
said that there was any ill-will or inaction on the part of the Government as
suggested by the petitioner which can be considered in colourable exercise
of power and in abuse of authority. It was only after the final decision was
conveyed to the Commission that the process of interviews was conducted.
26. State counsel submits that there is no untoward hurry in
conducting interviews before June 30, 2013. The Haryana Public Service
Commission being an independent and autonomous constitutional body
over which the Government has no control in its functioning conducted the
selection process fairly and faithfully. Moreover, the State action was based
on rule and the evaluation was on merits by the Commission. API scores
were not part of the rules of service and was not an essential part of the
qualifications. She further explains that the requisition sent to the
Commission was not withdrawn and the Government letters dated
September 19, 2012 and February 14, 2013 were duly conveyed to the
Commission only for their consideration but not as a command. The
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Commission choose to finalize the recruitment process on June 25, 2013 i.e.
before June 30, 2013. No mala fides have been alleged against the
Commission or bias of any of its members in conducting the interviews. If
the petitioners are unsuccessful they cannot turn around and question the
selection when API scoring system was not part of criterion.
27. There was a shadow of doubt on clubbing of the posts of
Principals and Deputy Directors which has now been dispelled on the basis
of the Rules, 2005 of recruitment and re-designation of the posts explaining
how the post of Deputy Director (Colleges) and Joint Director (Colleges)
falls in the headquarters/Directorate cadre while other Principals teaching in
the field staff in the respective colleges is as dealt with earlier in this order.
The affidavit refers to an earlier litigation in CWP No.8256 of 2014, Meer
Singh and others v. State of Haryana and others where the State had filed
reply informing the Court that the API scoring system was not being
introduced in matters of promotion as Principals in the State Government.
The written statement has been attached as D-6 with the affidavit of the said
Principal Secretary to Govt. of Haryana
28. Still further, the Principal Secretary in his affidavit has placed
the report of the Committee constituted as per interim directions dated
November 28, 2013 to assess the API scores of selected candidates. Their
scores range from 37.5 to 246.5 and are found mentioned at page 203 of the
paper-book. As one understands the case presently after the pleadings have
come in and the full picture made known, the API scoring system on
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reconsideration with fresh inputs was not relevant to the present selection
and the exercise ordered to be undertaken to assess API scores was only a
process of loud thinking in the Court at a premature stage than what is
revealed after hearing full arguments and understanding the case.
29. Today, one is wiser with the full landscape of facts in view and
the case presented with the able assistance of counsel, it appears that the
only question which boils down for adjudication is that the premise of the
petitioner that UGC API scoring system was adopted by the Government is
is incorrect statement since the implementation of the recommendations of
the UGC were decided by the competent authorities to be put in place only
after June 30, 2013. It is one thing to adopt a decision of UGC in principle
and another to fix an actual date when it is accepted to be implemented. The
implementation part was postponed by a conscious decision of the
competent authorities managing the selection on the plea of none else than
HFUCTO [the Union of Teachers] and in the face of Rules, 2005 laying
down the essential qualifications which forms the criterion of selection.
30. The letter of the State Government dated July 21, 2011 decides
only to issue a revised order on minimum qualifications and not that the
guidelines of the UGC have come into operation. The decision taken by the
State Government dated September 19, 2012 (P-7) qualifies as the revised
order acknowledging API scoring system to be applicable in the academic
session 2012-13. This decision is within the executive domain and is not in
abrogation of the adoption on July 21, 2011 but is purely a decision to
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stamp the date from which the adoption will operate as living law. Besides,
the UGC, New Delhi itself diluted its API scoring system procedures and
reduced them as only a screening test but not part of eligibility or essential
qualifications for the post of Principal/Deputy Director.
31. I would, therefore, find no error much less palpable in what the
State Government and the Commission did in the direct recruitment process
while declaring the result before June 30, 2013 without resorting to the API
scoring system. There was no illegality in this action/decision or any
arbitrariness involved in the decision making process. The authorities acted
within their jurisdiction and did not dishonour the UGC Regulations.
32. Accordingly, on a thoughtful consideration of the matter I
would reject the contentions advanced by Mr. R.K.Malik, Mr. Sajjan Singh
Malik and a host of their able colleagues representing their side of the case,
and instead would accept those promoted by Mr. H.N.Mehtani for the
Commission, Ms. Shruti Jain Goyal for the State and the other learned
counsel including Mr. Girish Agnihotri, learned Senior counsel appearing
for the respondents etc. Having heard them at length, I find there was in this
case only the proverbial smoke but without fire sufficient to ignite the
jurisdiction of this Court to venture to vitiate the selection and order the
nullification of the advertisement and setting aside of the appointments of
the private respondents.
33. During the course of the arguments, a strong reliance has been
placed by the petitioners on the decision of the Supreme Court in Kalyani
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Mathivanan v. K.V. Jeyaraj and others, (2015) 6 SCC 363 to submit that the
UGC Regulations, 2010 are mandatory and when departed from, the action
would be void, the selection vitiated. A close reading of the five directions
issued by the Supreme Court in para.44 of the judgment actually explain
succinctly what is urged by the State, the Commission and the private
respondents in this case. The UGC Regulations, 2010 are mandatory for
maintenance of expenditure of the Central Government Universities and
Colleges and Institutions deemed to be Universities whose maintenance
expenditure is met by UGC entitlements while the UGC Regulations, 2010
are directory for the Universities, Colleges or 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. Their
Lordships of the Supreme Court have differentiated between the two
distinct parts, one of adoption while the other of implementation. There is a
wide divide in law between the two dissimilar concepts. Therefore, the State
Government was at liberty to adopt the UGC Regulations, 2010 but its
implementation could be postponed and, therefore, reliance on Kalyani
Mathivanan runs actually against the petitioner, leaning heavily in favour of
the respondent-authorities. It would be helpful to reproduce verbatim the
operative directions of the Supreme Court in Kalyani Mathivanan which
read thus:-
"(i) To the extent the State Legislation is in conflict with
Central Legislation including sub-ordinate legislation
made by the Central Legislation under Entry 25 of the
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Concurrent List shall be repugnant to the Central
Legislation and would be inoperative.
(ii) The UGC Regulations being passed by both the Houses
of Parliament, though a sub-ordinate legislation has
binding effect on the Universities to which it applies.
(iii) 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 the
UGC.
(iv) UGC Regulations, 2010 is 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, UGC Regulations, 2010 is partly mandatory
and is partly directory.
(v) UGC Regulations, 2010 having not adopted by the State
Tamil Nadu, the question of conflict between State
Legislation and Statutes framed under Central Legislation
does not arise. Once it is 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."
34. Mr. Sajjan Singh Malik, on his turn though while assisting Mr.
R.K.Malik, senior counsel then placed strong reliance on a recent Full
Bench of the Kerala High Court in W.P. (Civil) No.17148 of 2013 titled Dr.
Radhakrishnan Pillai v. State of Kerala and others including connected case
titled Dr. Vijay Lekshmi v. U.G.C. and others and connected petitions
decided on February 23, 2016 to submit that if there is any repugnancy
between the UGC regulations and the regulations framed in University
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enactments and statutes then the latter would be void. The Kerala High
Court held that the fact that the Universities Statutes were not amended is
inconsequential. The University should have followed the UGC Regulations
for the selection notified. The fact of the matter is that in the State of Kerala,
UGC Regulations, 2010 had been adopted by the Government of Kerala
vide G.O (P) No.392/2010/H.Edn dated 10.12.2010 w.e.f. 18.9.2010. It is
nobody's case that when the State Government adopts and implements the
UGC Regulations, 2010 together then the entire picture would be different
if the selection was to govern service. If adopted and implemented by the
University making the recruitment then it would be bound without doubt by
the same principle as the one enunciated by the Kerala High Court. It is also
not the case that after June 30, 2013 the State is not enjoined to amend its
legislation appropriately. Therefore, the fifth direction in Kalyani
Mathivanan casts a burden on the State to amend Legislation but in this no
time frame is stipulated or fixed for application to selection of candidates. It
is well known that amendment to legislation cannot be done in a single day
in public interest and looking to the exigencies of service the State can
within its power fix the date for implementation after having adopted the
regulations. Hence, the Supreme Court in direction (iv) in Kalyani
Mathivanan have held that the UGC Regulations, 2010 are partly mandatory
and partly directory in nature.
35. That apart, there is also a fine distinction which has to be kept
in mind and appears not to have fallen for consideration before the Full
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Bench of the Kerala High Court that University Statutes and rules of service
framed under proviso to Article 309 of the Constitution of India are
different in character and content. University Statutes are lesser species than
statutory rules framed under the Constitution which have primacy. UGC
guidelines aim at maintaining standards of higher education which the State
has to contend with both honouring UGC but also looking to its
employment demands within the genius of the people of its State and
balance education with employment under the State, the costs of which
employment are not borne by UGC but by the State exchequer. To borrow
words from M. Nagaraj v. Union of India, (2006) 8 SCC 212, on merit-
public employment relationship while quoting from Amartya Sen in
'Meritocracy and Economic Inequality', edited by Kenneth Arrow, Kapadia,
J. speaking for the Court observed:-
" The basic presumption, however, remains that it is the State who
is in the best position to define and measure merit in whatever
ways it considers it to be relevant to public employment because
ultimately it has to bear the costs arising from errors in defining
and measuring merit."
36. The question presently is not one of diluting the principle laid
down in Kalyani Mathivanan as observed in para.14 of the judgment of the
Full Bench since the Full Bench was dealing with another set of
circumstances which do not arise for consideration in this case even by long
shot. I would, therefore, like to reproduce para.14 of the report as
downloaded from www.livelaw.in by Mr. Malik and produced in Court to
be in touch with the judgment in Dr. Radhakrishnan Pillai. Para.14 of the
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download reads:-
"14. According to us, this judgment cannot, in any manner,
dilute the principles laid down in the aforesaid judgments
for the reason that the State of Kerala itself has adopted
the UGC Regulations vide Government order dated
10.12.2010, which has been extracted in the earlier part of
this judgment. Once the UGC Regulations were adopted
by the State Government and implemented with effect from
18.9.2010, the Regulations are mandatorily to be complied
with by the Universities in the State. It is also clarified that
anything that is in conflict with the Central law and the
subordinate legislation made thereunder, will be void and
inoperative."
37. The Notification of the Kerala Government is itself the
distinguishing feature from this case and speaks volumes against the
petitioners and the case they seek to set up before me in this petition. It is,
therefore, reproduced to appreciate the difference between the two cases:-
"GOVERNMENT OF KERALA
Abstract
Higher Education-UGC Scheme-Revision of Scale of Pay of
Teachers of Universities, Affiliated Colleges, Teachers in Law
Colleges and Engineering Colleges and Kerala Agricultural
University and Teachers in Physical Education and Qualified
Librarians etc. Regulations of UGC on Minimum
Qualifications for Appointment of Teachers and Other
Academic Staff in Universities and Colleges and Measures for
the Maintenance of Standards in Higher Education 2010-
Regulations-- Approved-Orders Issued
- - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - -
HIGHER EDUCATION (C) DEPARTMENT
G.O. (P) No.392/210/H.Edn. Dated, Thiruvananthapuram, 10th
December, 2010.
--------------------------------
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Read:- 1. G.O. (P) No.58/2010/H.Edn. Dated 27-3-2010
2. Letter No. F. No.I-2/2009(EC/PS) Pt. File-3 dated
23-11-2010 from the UGC.
ORDER
Government vide order read as 1st paper above have issued orders implementing UGC pay revision of Teachers in Universities, Affiliated Colleges, Teachers in Law Colleges and Engineering Colleges and Kerala Agricultural University and Teachers in Physical Education and qualified Librarians etc.
2. Now, UGC vide letter read as 2nd paper above have furnished UGC regulations, 2010 on minimum qualifications for appointment of Teachers and other Academic Staff in Universities and Colleges and measures for the maintenance of standards in Higher Education.
3. Government have examined the matter in detail and are pleased to approve and to implement the Regulations as such.
4. The Regulations shall come into force with effect from 18-9-2010, i.e., the date of publication of the Regulations in the Government of India Gazette.
5. All the Universities shall incorporate the UGC Regulations in their Statutes and Regulations within one month from the date of this order Government will initiate steps to amend the Acts of the University, if required to implement the Regulations. Government will also initiate steps to amend the Special Rules to give effect to the stipulations of the UGC Regulations.
6. Government are also pleased to order that where there are any provision in the Regulations inconsistent with the provisions in the G.O. read as 1st paper above, those provisions in the G.O. would override the provisions in the Regulations to the extent of such inconsistency.
7. Government are also order that notwithstanding anything contained in the Regulations only those benefits both monetary and others specified in the Government Order read For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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By order of the Governor, M. Mohammed Basheer, Additional Secretary to Government"
The Notification adopts and implements the UGC Regulations in the same breath, leaving nothing open to debate.
38. Then Mr. Sajjan Singh Malik's reliance on the Full Bench is misconceived and the law therein is of no avail to him for the reason the adoption notification itself made the implementation retrospective in the same document to fit the academic session in which the material transactions took place, which is not the case in hand. The case before the Kerala High Court was squarely covered by the ruling of the Supreme Court in Kalyani Mathivanan. When both the essential ingredients i.e. adoption and implementation co-exist by a conscious decision of the State Government, at the same time, in the same way; then UGC guidelines are mandatory in nature and are to be abided by. For this, no elaborate order needed to be penned down. The Full Bench decision on the point involved could easily have been disposed of as a case covered by the appropriate binding direction in Kalyani Mathivanan.
39. Besides, the Kerala Full Bench was not called upon to consider the subsequent letter of the UGC issued in the year 2013 which makes API scoring system only a 'screening test' and has no mandatory force on the State Governments or the Universities within their jurisdiction. In the present scenario no final opinion is expressed on whether the State For Subsequent orders see CWP-21838-2013, CWP-22627-2013, CWP-26527-2013 and 0 more.
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40. Accordingly, it is held that the Memo dated September 19, 2012 (P-7) is neither illegal nor arbitrary nor unconstitutional nor is it void or voidable by the UGC Regulations, 2010. The selection process and the appointments that have followed are clearly in accordance with law. It may be noted that there has been no debate asked for by the petitioners on the merits of the selection. The issues raised in these petitions alas were purely legal in character and covered by the directory part of Kalyani Mathivanan.
It was competent to the Government in its deliberations at its decision making levels after seeking advice of its functionaries to have agreed to implement the API Score System in the next academic session of the Universities concerned. Even then, by virtue of the UGC Regulations of 2013 API Score System would operate as a screening test with merit of the candidates to be evaluated by University criteria.
41. For the foregoing reasons, I find no merit in these petitions warranting interference and would dismiss them without any order as to costs.
(RAJIV NARAIN RAINA)
JUDGE
30.01.2017
manju
Whether speaking/reasoned Yes
Whether reportable Yes
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