Himachal Pradesh High Court
Dr. Nitin vs H.P. University & Anr on 6 October, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 9048 of 2013 along with CWPs No. 9051, 9055, 7031 and 7366 of 2013 and COPCs No. 4266 & 4267 of 2013.
Judgment reserved on: 22.9.2015 Decided on 6.10. 2015 of
1. CWP No. 9048 of 2013 Dr. Nitin ...Petitioner rt Vs H.P. University & anr ...Respondents.
2. CWP No.9051 of 2013 Dr. Mini Pathak Dogra ....Petitioner Vs H.P.University & anr ....Respondents.
3. CWP No.9055 of 2013 Dr. Madhu Bala Dadhwal ...Petitioner Vs H.P. University & anr ...Respondents.
4. CWP No. 7031 of 2013 Dr.Sapna Chandel ...Petitioner Vs H.P.Universtiy & ors ....Respondents 5. CWP No. 7366 of 2013 Rohit Kumar ...Petitioner Vs State of HP & ors ...Respondents. ::: Downloaded on - 15/04/2017 19:03:03 :::HCHP 2 . 6. COPC No. 4266 of 2013 Dr. Mahender Singh ...Petitioner Vs Prof. Dr.A.D.N.Bajpai & ors ...Respondents 7. COPC No.4267of 2013 Dr. Nand Lal & anr ...Petitioners of Vs Prof. Dr.A.D.N.Bajpai & ors ...Respondents Coram rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?Yes.
For the Petitioners : Mr. Ranjan Sharma, Mr. Adarsh Sharma, Advocates, Mr. Sanjeev Bhushan, Senior Advocate with Ms. Abhilasha Kaundal, Advocate, Mr. Vikrant Thakur, Mr.Parshotam Chaudhary, Advocates.
For the Respondents : Mr. Shrawan Dogra, Senior Advocate with Mr. J.L.Bhardwaj, Advocate for respondent No.1 in CWPs No. 9048, 9051 and 9055 of 2013.
Mr. Sandeep Sharma, Senior Advocate with Mr.Prashant Sharma, Advocate, for respondent No.2 in CWPs No. 9048, 9051 and 9055 of 2013.
Mr. Shrawan Dogra, Senior Advocate with Mr. J.L.Bhardwaj, Advocate for respondents No.1 and 2 in CWP No. 7031 of 2013.
Mr. Sandeep Sharma, Senior Advocate with Mr.Prashant Sharma, Advocate, for ::: Downloaded on - 15/04/2017 19:03:03 :::HCHP 3 respondent No.3 in CWP No. .
7031 of 2013.
Mr.Subham Sharma, Advocate, for respondents No. 4 to 6 in CWP No. 7031 of 2013.
Mr. Shrawan Dogra, Advocate of General with Mr. Anup Rattan, Mr. Romesh Verma,Addl.AGs, Mr. J.K.Verma and Mr.Vikram Thakur, Dy. AGs, for respondent rt No.1 in CWP No. 7366 of 2013.
Mr.Shrawan Dogra, Senior Advocate with Mr. J.L.Bhardwaj, Advocate for respondent No.2 in CWP No. 7366 of 2013.
Mr.Ankush Dass Sood, Sr.
Advocate with Mr. Rakesh
Sharma, Advocate, for
respondent No.3 in CWP No.
7366 of 2013.
Mr.Vikrant Thakur and Mr.
Parshotam Chaudhary,
Advocates, for the petitioners in COPC No. 4266 of 2013.
Mr. Ankush Dass Sood, Senior Advocate with Mr. Rakesh Sharma, Advocate, for the petitioners in COPC No. 4267 of 2013.
Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan, Mr. Romesh Verma, Addl.AGs, Mr. J.K.Verma and Mr.Vikram Thakur, Dy. AGs, for respondents No. 1 to 4 and 10 in COPCs No. 4266 and 4267 of 2013.
::: Downloaded on - 15/04/2017 19:03:03 :::HCHP 4Mr. Shrawan Dogra, Senior .
Advocate with Mr. J.L. Bhardwaj, Advocate, for respondents No. 5 to 9 and 11 to 15 in COPCs No. 4266 and 4267 of 2013.
of Tarlok Singh Chauhan, (J) CWPs No. 9048, 9051, 9055 of 2013. rt Since common questions of law and facts are involved in all these writ petitions, therefore, they were taken up together for disposal. With the consent of the parties, CWP No. 9048 of 2013 is taken as the lead case and facts enumerated therein form the basis of this decision.
2. Case of the petitioners is that the respondent University for filling up the posts of Assistant Professors, has been issuing successive advertisements bearing Nos.32/2006, 2/2008, 1/2010, 3/2010 and 3/2011, but every time, for one reason or the other and for extraneous reasons and in colourable exercise of powers, it is reluctant to complete the process and is more interested and keen to scuttle the same.
3. The advertisement issued in 2010 bearing Nos. 1/2010 and 3/2010 was subject matter of consideration by the learned Division Bench of this ::: Downloaded on - 15/04/2017 19:03:03 :::HCHP 5 Court in CWP No. 6479 of 2011 decided on 4.1.2012 .
and this Court directed the University to complete the process for filling up the remaining unfilled posts in the H.P. University within three months from the date of of passing of the judgment i.e. 4.1.2012.
4. The SLP filed by the University, bearing SLP rt (C) No.12122/2012 was dismissed by the Hon'ble Supreme Court on 23.4.2012.
5. In response to advertisement No.3/2011, some of the petitioners and other eligible candidates applied for the post of Assistant Professor and were interviewed by a duly constituted selection committee on 26.8.2012. It is averred that the University once again tried to scuttle the process of selection mid-way for extraneous reasons by taking shelter under the decision of the Executive council of the University in its meeting held on 8.4.2013, whereby it was decided to discontinue the process of selection made by the earlier selection committee.
6. Some of the candidates, who had already appeared in the interviews pursuant to the aforesaid advertisements, approached this Court by filing writ petitions bearing Nos. 2429 of 2013, 6479 of 2011, 7010 ::: Downloaded on - 15/04/2017 19:03:03 :::HCHP 6 of 2012, 8095 of 2012, 9247 of 2012, 10833 of 2012 and .
4024 of 2013, which were disposed of by this Court on 25.9.2013 by a common judgment whereby the decision of the Executive council taken in its meeting of held on 8.4.2013 was set aside and directions were issued to reconsider all the recommendations made rt by the Selection committed from time to time in relation to the selection process commenced on the basis of advertisement No.3/2011.
7. On 1.11.2013, the Executive council, in compliance to the aforesaid judgment, took a decision to hold fresh interview after calling fresh candidates without considering the recommendations made by the selection committee qua eligible candidates as had been directed by this Court and the dates of interviews were fixed on 22.11.2013. It is this decision of the Executive council which has been assailed in these petitions on a number of grounds taken therein.
8. The respondent University has filed its reply wherein preliminary submission regarding the very maintainability of the petition has been raised on the ground that the petitioner(s) is ineligible in terms of ::: Downloaded on - 15/04/2017 19:03:03 :::HCHP 7 the advertisement No.3/2011 as they do not possess .
NET/SLET/SET or qualification of Ph.D Degree as per the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D Degree) of Regulations, 2009 and the amended Ordinances of the respondent University in this regard.
rtCWP No. 7031 of 20139. The petitioner claims to be fully eligible for being appointed as Assistant Professor in the Guest faculty in Sanskrit department of H.P. University and has questioned the selection of the respondents 4 to 7 on the grounds taken in the petition.
10. The respondent University in its reply has averred that the petitioner was not eligible for being appointed as Assistant Professor as she has not submitted any certificate of her qualifying NET/SLET/SET which was an essential qualification.
11. On the other hand, case of the petitioner is that the candidates who had received Ph.D degrees upto 31st December, 2009 or who had got themselves registered for Ph.D before 10.7.2009 were exempted ::: Downloaded on - 15/04/2017 19:03:03 :::HCHP 8 from qualifying NET/SLET/SET. Meaning thereby, that .
the petitioner admittedly has not qualified NET/SLET/SET.
12. The petitioners in all the above petitions of have admittedly not qualified the NET/SLET/SET but their specific case as pleaded is that the University rt Grants Commission (Minimum Standard and Procedure for Award of Ph.D Degree) Regulation, 2009 dated 1.6.2009, specifically provide for exemption to candidates from NET/SLET/SET who are or have been awarded a Ph.D degree in accordance with the UGC (Minimum Standard and Procedure for Award of Ph.D Degree) Regulation, 2009. It is further claimed that as per letter dated 28.8.2009, the UGC had left it to the respective Universities/colleges and institutions to decide as to whether the degree of Ph.D awarded to various candidates is in compliance to the provisions of Regulations, 2009 (supra).
13. The petitioners, in support of their claim, have placed reliance on the judgment rendered by the Allahabad High Court in Dr. Ramesh Kumar Yadav & anr Vs. University of Allahabad, Civil Misc. Writ ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 9 Petition No. 45477 of 2011, decided on 6.4.2012 to .
canvass that they are fully eligible since they satisfy six out of eleven tests laid by the UGC which were made essential for award of Ph.D degree under the third of amendment of the Regulations of 2009.
14. Whereas, on the other hand, the specific rt case set up by the respondent University is that since the petitioners are not eligible for appointment to the post in question as they do not possess NET/SLET/SET or qualification of Ph.D as per the guidelines laid down by the UGC and the Central Government, therefore, these petitions are not maintainable.
15. The respondent University and the private respondents have raised preliminary objection regarding maintainability of these petitions by placing reliance upon the recent judgment of the Hon'ble Supreme Court in P. Suseela & ors Vs University Grants Commission & ors (2015) 8 SCC 129, to canvass that right to be considered for appointment is not a vested right and this right is always subject to minimum eligibility conditions, and till such time the appointment is actually made, no ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 10 vested right arises, and different eligibility conditions .
may be laid down at different times and the conditions as are applicable at the time of selection would form the basis of the selection. It is further of argued that since none of the petitioners possess the essential qualification, therefore, all these petitions rt deserve to be dismissed.
16. Whereas, the learned counsel for petitioner would contend that in case such a course is followed, it would amount to re-opening and sitting over the judgment passed by this court in Court in CWP No. 6479 of 2011 which in turn has been affirmed by the Hon'ble Supreme Court in SLP (C) No. 12122/2012.
17. In this background, the only question required to be determined in all these petitions is regarding the eligibility/non eligibility of the petitioners for appointments as Assistant Professors in absence of their admittedly having not qualified NET/SLET/SET.
We have heard the learned counsel for the parties and have gone through the records of the case.
18. In order to appreciate the controversy involved in these petitions, it would be necessary to ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 11 refer to the relevant provisions of the University Grants .
Commission Act, 1956 (for short the 'Act') the regulations framed by it from time to time as also the directives issued by the Central government from time of to time as have otherwise been noticed in P.Suseela's case (supra).
19. rt The University Grants Commission Act, 1956, was enacted by Parliament to make provision for the coordination and determination of standards in Universities being enacted under Entry 66 List I, Schedule VII to the Constitution of India. By Section 4 of the Act, a University Grants Commission is established to carry out the functions entrusted to it by Section 12 of the Act.
20. We are directly concerned in these petitions with two Sections of this Act, namely, Section 20 and 26:-
"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 ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 12 decision of the Central Government shall be .
final.
26. Power to make regulations.-(1) The Commission may[, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder,-
of
(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 rt 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 recognised by the Commission under clause (f) of Section2;
(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 instruction;
(f) defining the minimum standards of instruction for the grant of any degree by any University;
(g) regulating the maintenance of standards and the co- ordination 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 12-A;;
(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.
::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 13.
(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 of the interests of any person to whom such regulation may be applicable."
21. In exercise of the powers conferred by rt Section 26(1)(e) of the said Act, the UGC framed regulations in 1982 prescribing the qualification for the teaching post of Lecturer in colleges as follows:- "M. Phil. degree or a recognized degree beyond Master's level".
22. In 1986, the Malhotra Committee was appointed by the UGC to examine various features of University and College education. It recommended that there should be certain minimum qualifications laid down for the post of Lecturer.
23. Pursuant to the said Committee report, the UGC framed regulations on 19th September, 1991 superseding the 1982 regulations and providing apart from other qualifications, clearing of the NET as a test for eligibility to become a Lecturer.
::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 1424. Vide an amendment dated 21st June, .
1995, a proviso was added to the 1991 regulations by which candidates who had submitted their Ph.D. thesis or passed the M. Phil. examination on or before of 31st December, 1993 were exempted from the said eligibility test for appointment to the post of Lecturer.
25. rt This continued till 2002, the only change made being that the exemption continued qua Ph.D. thesis holders for dates that were extended till 31st December, 2002.
26. This state of affairs continued until 2008 when the Mungekar Committee submitted its final report recommending that NET should be made a compulsory requirement for appointment of Lecturer in addition to the candidate possessing M.Phil. or Ph.D degrees.
27. On 12th November, 2008, the Department of Higher Education, Ministry of Human Resources Development, Government of India, issued a directive under Section 22 of the UGC Act providing inter alia as under:-
::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 15"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 of 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 rt 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."
28. In pursuance of the said directive, the UGC promulgated the impugned Regulations of 2009, the 3rd Amendment of which provides as follows:-
"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 position in Universities/ Colleges/Institutions."::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 16
The proviso referred to a number of new .
conditions relating to the maximum number of Ph.D. students at any given point of time, stringent admission criteria for a Ph.D. degree, research papers being published, the Ph.D. thesis being evaluated by at least of two experts, one of whom shall be an expert from outside the State etc.
29. This was followed by another directive rt dated 30th March, 2010 by the Ministry under Section 20 of the Act directing the UGC as follows:-
(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 UGC (Minimum Qualifications for appointment and career advancement of teachers in universities and colleges) 3rd Amendment Regulations, 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 it's 468th meeting held on 23rd February, 2010 vide agenda item no.
6.04 and 6.05 to grant specific exemptions from the applicability of NET shall not be implemented as being contrary to national policy.
::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 17The above said directions shall be .
implemented by the UGC forthwith."
30. Pursuant to this directive, on 30th June, 2010, the UGC framed Regulations of 2010, para 3.3.1 of which states:
of "3.3.1. NET/SLET/SET shall remain the rt 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 equivalent positions in Universities/Colleges/ Institutions."
31. By two resolutions dated 12th August, 2010 and 27th September, 2010, the UGC opined that since the regulations were prospective in nature, all candidates having M. Phil. degree on or before 10th July, 2009 and all persons who obtained the Ph.D. degree on or before 31st December, 2009 and had registered themselves for the Ph.D. before this date, but were awarded such degree subsequently shall remain exempted from the requirement of NET for the ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 18 purpose of appointment as Lecturer/Assistant .
Professor.
32. The Central Government, however, by letter dated 3rd November, 2010 informed the UGC of that they were unable to agree with the decision of the Commission and stated that consequently a rt candidate seeking appointment to the post of Lecturer/Assistant Professor must fulfill the minimum qualifications prescribed by the UGC including the minimum eligibility condition of having passed the NET test.
33. Now, adverting to P.Suseela case (supra), it would be noticed that a large number of appeals were filed before the Hon'ble Supreme Court in which the judgments of four High Courts were assailed.
34. The High Court of Delhi in its judgment dated 6th December, 2010 was faced with the constitutional validity of the University Grants Commission Regulations (Minimum Qualifications Required for the Appointment And Career Advancement of Teachers in Universities and ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 19 Institutions affiliated to it) (the third Amendment) .
Regulation 2009 under which NET/SLET is to be the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/ Colleges/ of Institutions. The challenge was repelled saying that the Regulations do not violate Article 14 of the rt Constitution of India and are, in fact, prospective inasmuch as they apply only to appointments made after the date of the notification and do not apply to appointments made prior to that date.
35. Along the lines of the Delhi High Court, the Madras and Rajasthan High Courts also repelled challenges to the aforesaid regulations vide their judgments dated 6th December, 2010 and 13th September, 2012.
36. On the other hand, the Allahabad High Court in its judgment dated 6th April, 2012 (supra) had found that the said regulations were issued pursuant to directions of the Central Government which themselves were issued outside the powers conferred by the UGC Act and, hence, the eligibility conditions ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 20 laid down would not apply to M. Phil. and Ph.D. .
degrees awarded prior to 31st December, 2009.
37. However, a subsequent judgment of the Allahabad High Court dated 6th January, 2014 of distinguished the aforesaid judgment and upheld the self- same regulations.
rt
38. Whereas the Union of India filed appeal against the Allahabad High Court judgment dated 6th April, 2012, the M.Phil. degree holders and Ph.D. degree holders who had not yet been appointed as Assistant Professors in any University/College/ Institution filed separate appeals against the judgment rendered by the aforesaid four High Courts before the Hon'ble Supreme Court.
39. The judgments rendered by the Delhi, Madras and Rajasthan High Courts were assailed before the Hon'ble Supreme Court on the ground that Section 26(3) expressly entitles a regulation to be prospective but so as not to prejudicially affect the interests of any person to whom such regulation may be applicable. It was argued that both under Article 14 as well as this sub- section, since all M.Phil. and ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 21 Ph.D. holders had been repeatedly assured that they .
would be exempt from passing the NET exam if they were such holders prior to 2009, the regulations should not be so construed as to impose the burden of this of examination upon them. It was further argued that under Section 26(2), regulations made in pursuance of rt Section 26(1) (e) and (g) do not require the previous approval of the Central Government and, therefore, the impugned regulations are bad since they follow the dictate of the Central Government which, in fact, is not required. Also, this would show that when it comes to qualifications of persons to be appointed to the teaching staff, the UGC is an expert body to whom alone such qualifications and consequently exemptions from such qualifications should be left to decide. It was also argued that there is a violation of Article 14 in that unequals have been treated equally as those who passed their M. Phil. and Ph.D. degrees prior to 2009 fell in a separate class which had an intelligible differentia from those who did not so fall as has been maintained by the UGC from time to time.
40. On the other hand, the stand of the Union of India and UGC before the Hon'ble Supreme Court ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 22 was that under Section 26 regulations have to be .
made consistently with the Act and Section 20 is very much part of the Act. Therefore, if directions on questions of policy are made by the Central of Government, regulations must necessarily be subordinate to such directions. It was also argued that rt if a question arises as to whether a subject matter is a question of policy relating to national purposes, the decision of the Central Government shall be final.
41. The Hon'ble Supreme Court, after considering the rival contentions, held that Section 26 enables the Commission to make regulations only if they are consistent with the UGC Act, which necessarily means that such regulations must conform to Section 20 of the Act and under Section 20 of the Act, the Central Government is given the power to give directions on questions of policy relating to national purposes which shall guide the Commission in the discharge of its functions under the Act.
42. On the aforesaid reasoning, the Hon'ble Supreme Court concluded that both the directions of 12th November, 2008 and 30th March, 2010 were ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 23 directions made pertaining to questions of policy .
relating to national purposes inasmuch as, being based on the Mungekar Committee Report, the Central Government felt that a common uniform of nationwide test should be a minimum eligibility condition for recruitment for the appointment of rt Lecturer/ Assistant Professors in Universities/ Colleges/ Institutions.
43. The Hon'ble Supreme Court further observed that for the obvious reason that M. Phil.
Degrees or Ph.D. degrees are granted by different Universities/ Institutions having differing standards of excellence. The objects sought to be achieved by these direction was clear that all the Lecturers in Universities/Colleges/ Institutions governed by the UGC Act should have a certain minimum standard of excellence before they are appointed as such. These directions are not only made in exercise of powers under Section 20 of the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act.
::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 2444. In this context, it shall be apt to quote para .
12 of the judgment, which reads thus:
"12. It is clear that Section 26 enables the Commission to make regulations only if they are consistent with the UGC Act. This necessarily of means that such regulations must conform to Section 20 of the Act and under Section 20 of the Act the Central Government is given the power to rt give directions on questions of policy relating to national purposes which shall guide the Commission in the discharge of its functions under the Act. It is clear, therefore, that both the directions of 12th November, 2008 and 30th March, 2010 are directions made pertaining to questions of policy relating to national purposes inasmuch as, being based on the Mungekar Committee Report, the Central Government felt that a common uniform nationwide test should be a minimum eligibility condition for recruitment for the appointment of Lecturer/Assistant Professors in Universities/Colleges/Institutions. This is for the obvious reason that M. Phil. Degrees or Ph.D. degrees are granted by different Universities/Institutions having differing standards of excellence. It is quite possible to conceive of M.Phil/ Ph.D. degrees being granted by several Universities which did not have stringent standards of excellence. Considering as a matter of policy that the appointment of Lecturers/ Assistant Professors in all institutions governed by the UGC Act (which are institutions all over the country), the need was felt to have in addition a national entrance test as a minimum eligibility condition being an additional qualification which has ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 25 become necessary in view of wide disparities in .
the granting of M. Phil./ Ph.D. degrees by various Universities/ Institutions. The object sought to be achieved by these directions is clear: that all Lecturers in Universities/Colleges/Institutions governed by the UGC Act should have a certain of minimum standard of excellence before they are appointed as such. These directions are not only made in exercise of powers under Section 20 of rt the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act. It is clear, therefore, that any regulation made under Section 26 must conform to directions issued by the Central Government under Section 20 of the Act."
45. The other argument raised before the Hon'ble Supreme Court by the appellants therein was that since the previous approval of the Central Government was not necessary for regulations which define the qualifications required of persons to be appointed to the teaching staff of a University, the Government has no role to play in such matters and cannot dictate to the Commission.
46. This contention was repelled by the Hon'ble Supreme Court on the ground that such argument ignores the opening lines of Section 26(1) which states that the Commission can only make regulations ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 26 consistent with the Act, which brings in the Central .
Government's power under Section 20 of the Act, a power that is independent of sub-section (2) of Section 26. A regulation may not require the previous of approval of the Central Government and may yet have to be in conformity with a direction issued under rt Section 20 of the Act.
47. Now once the Hon'ble Supreme Court has upheld the validity of the directions issued by the government on 12.11.2008 and 30.3.2010 respectively, then the necessary consequence is that the requirement of having passed NET/SLET/SET is mandatory and cannot be relaxed even in the cases of the candidates possessing the degree of M.Phil or Ph.D while considering the cases for appointment to the teaching post of Assistant Professor.
48. Learned counsel for the petitioner(s) at this stage would vehemently argue that the regulations framed by the UGC cannot be given retrospective effect so as to prejudicially affect the interest of any person to whom such regulation may be applicable.
Similar contention was raised, in P.Suseela's case ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 27 (supra) but the same was repelled by the Hon'ble .
Supreme Court in the following manner:
"14.The other interesting argument made is that such regulations should not be given retrospective effect so as to prejudicially of affect the interests of any person to whom such regulation may be applicable. In order rt to appreciate this contention, it is necessary to distinguish between an existing right and a vested right. This distinction was made with great felicity in Trimbak Damodhar Rajpurkar v. Assaram Hiraman Patil, 1962 Suppl. 1 SCR
700. In that case a question arose as to whether an amendment made to Section 5 of the Bombay Tenancy and Agricultural Lands Amendment Act could be said to be retrospective because its operation took within its sweep existing rights. A bench of five Hon'ble Judges of this Court held that Section 5 had no retrospective operation.
15.This Court held: (Trimbak case, AIR pp.1760-61, paras 8-10 SCR pp.707-09).
"8.Besides, it is necessary to bear in mind that the right of the appellant to eject the respondents would arise only on the termination of the tenancy, and in the present case it would have been available to him on March 31, 1953 if the statutory provision had not in the meanwhile extended the life of the tenancy. It is true that the appellant gave notice to the respondents on March 11, 1952 as he was then no doubt entitled to do; but his right as a landlord to obtain ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 28 possession did not accrue merely on .
the giving of the notice, it accrued in his favour on the date when the lease expired. It is only after the period specified in the notice is over and the tenancy has in fact expired that the landlord gets a right to eject the tenant and obtain possession of the land. Considered from this point of of view, before the right accrued to the appellant to eject the respondents amending Act 33 of 1952 stepped in and deprived him of that right by rt requiring him to comply with the statutory requirement as to a valid notice which has to be given for ejecting tenants.
9.In this connection it is relevant to distinguish between an existing right and a vested right. Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included. As observed by Buckley, L.J. in West v. Gwynne [ (1911) 2 Ch 1 at pp 11, 12] retrospective operation is one matter and interference with existing rights is another.
"....If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date as from which the new law, as enacted by the Act, is to be taken to have been the law."
These observations were made in dealing with the question as to the retrospective construction of Section 3 of the Conveyancing and Law of Property Act, ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 29 1892 (55 & 56 Vict. c. 13). In substance .
Section 3 provided that in all leases containing a covenant, condition or agreement against assigning, underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition or agreement shall, unless the lease contains an expressed provision to the contrary, be of deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent. It was held that the provisions of the said section rt applied to all leases whether executed before or after the commencement of the Act; and, according to Buckley, L.J., this construction did not make the Act retrospective in operation; it merely affected in future existing rights under all leases whether executed before or after the date of the Act. The position in regard to the operation of Section 5(1) of the amending Act with which we are concerned appears to us to be substantially similar.
10.A similar question had been raised for the decision of this Court in Jivabhai Purshottam v. Chhagan Karson [ Civil Appeal No 153 of 1958 decided on 27-3-1961] in regard to the retrospective operation of Section 34(2)(a) of the said amending Act 33 of 1952 and this Court has approved of the decision of the Full Bench of the Bombay High Court on that point in Durlabbha Fakirbhai v. Jhaverbhai Bhikabhai [ (1956) 58 BLR 85] . It was held in Durlabbhai case [ (1956) 58 BLR 85] that the relevant provision of the amending Act would apply to all proceedings where the period of notice had expired after the amending Act had come into force and that the effect of the amending Act was no more than this that it imposed a new and additional limitation on the right of the landlord to obtain possession from his tenant. It was observed in that judgment that (Jivabhai Purshottam case10, AIR p.1493, para-4) ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 30 .
'4....A notice under Section 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction of under sub-section 2(a) on the right of the landlord to terminate the tenancy, the crucial date is not the date of rt notice but the date on which the right to terminate matures; that is the date on which the tenancy stands terminated".
49. Learned counsel for the petitioner(s) would then argue that on account of the judgments rendered by this Court from time to time, they had a vested right of being appointed to the post in question.
50. Even this contention of the petitioner cannot be accepted for the reason that it is not in dispute that the advertisement No.3/2011 has not been taken to its logical end by making appointment and till and so long the appointments are actually not made, the petitioner(s) cannot claim any vested right of appointment, at the highest, petitioner(s) could only contend that they have a right to be considered for the post in question. This right is always subject to minimum ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 31 eligibility conditions and till such time as the .
petitioner(s) are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition is laid of down, it does not mean that any vested right of the petitioner(s) is affected. This is precisely what was rt even held in P.Suseela's case (supra) when similar contentions were raised before the Hon'ble Supreme Court:-
"16. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail."
51. The learned counsel would then argue that in terms of the directions passed by this Court in CWP ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 32 No. 6479 of 2011 they have a preferential right of .
being considered for appointment. We have gone through the directions and find that this court has no where directed the respondents while making of appointments, to ignore the qualifications of the recommendees, rather a specific direction was rt passed that while considering the recommendations, the Executive Council will have to examine as to whether the recommendees are fulfilling the requirements specified in the advertisement bearing No.3 of 2011 as would be clear from the following observations:
"the Executive Council, while considering the recommendations, will have to examine as to whether the recommendees are fulfilling the requirements specified in the advertisement bearing No.3/11 and as per other mandatory requirements of rules governing the selection process and take final decision on that basis."
52. Learned counsel for the petitioners would then desperately argue that the issue raised in the instant case is squarely covered by the judgment rendered by the Division Bench of the Allahabad High Court in Dr. Ramesh Kumar Yadav's case (supra) ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 33 wherein it was held that a candidate could be held to .
be eligible for consideration for appointment as lecturer in University provided he satisfy any six test out of eleven laid down by the UGC and the Union of of India, i.e. Ministry of Human Resource Development had no power whatsoever to override the decision rt taken by the UGC.
53. This submission deserves outright rejection for the simple reason that the judgment in Ramesh Kumar Yadav's case upon which much reliance is being placed by the petitioners, has been specifically over ruled by the Hon'ble Supreme Court in P.Suseela's case in the following manner:
"22. The Allahabad High Court in its judgment dated 6th April, 2012 Ramesh Kumar Yadav V. University of Allahabad, 2012,SCC Online All paras 105-106 has held as follows:
"105. CONCLUSIONS:
1. The Central Government, in exercise of its powers under Section 20 (1) of UGC Act, 1956, does not possess powers and authority to set aside or annul the recommendations of the University Grants Commission, and the regulations made by it under Section 26 (1)
(e) of the Act defining the qualification, that should ordinarily be required to be ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 34 possessed by any person to be appointed to .
the teaching posts of the University, for which under Section 26 (2) of the UGC Act, 1956, the previous approval of the Central Government is not required.
2. The exemptions given by UGC to those, of who were awarded Ph.D degrees prior to 31.12.2009 before the enforcement of the Regulations of 2009, is not a question of rt policy relating to national purpose on which the Central Government could have issued directions under Section 20 (1) of the UGC Act, 1956.
3. The UGC is an expert body constituted with specialists in laying down standards and for promotion and coordination of University education. The recommendations made by it in the matters of qualifications and the limited exemptions of such qualifications for appointment for teachers in Universities taken after constituting expert Committees and considering their recommendations is not subject to supervision and control by the Central Government. The Central Government in the matters of laying down minimum qualifications for appointment of teachers in the University, does not possess any supervisory powers, to annul the resolutions of UGC.
4. The 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 ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 35 qualifications, unless the UGC has provided .
for any exemptions.
5. The resolution on agenda item no. 6.04 and 6.05 in the 468th meeting of the UGC held on 23.2.2010, and the resolution of UGC in its 471st meeting on agenda item no. 2.08 of dated 12.8.2010 recommending the 3rd Amendments to the Regulations of 2009 to be prospective in nature, is binding on the rt Universities Allahabad.
including the University of
6. The petitioners were awarded Ph.D
degrees in the year 2009 and in the year 2003 respectively prior to enforcement of the 3rd Amendment in the regulations, which came into force on 31.12.2009, and thus they are 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.
The writ petition is allowed. The petitioners are held eligible for consideration for appointment as Lecturer for guest faculty in the Department of Sanskrit of the University, provided they satisfy any of the six tests out of eleven, laid down by the UGC, and which are made essential for award of Ph.D degree under the 3rd Amendment of the Regulations of 2009. It will be open to the University to consider from the material produced by the petitioners, that they satisfy six out of eleven tests recommended by the ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 36 University Grants Commission for award of .
their Ph.D."
22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also of pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body rt does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government.
23. The Allahabad High Court adverted to an expert committee under the Chairmanship of Professor S.P. Thyagarajan which laid down that if six out of eleven criteria laid down by the Committee was satisfied when such University granted a Ph.D. degree, then such Ph.D. degree should be sufficient to qualify such person for appointment as Lecturer/Assistant Professor without the further qualification of having to pass the NET test. The UGC itself does not appear to have given effect to this recommendation of the Thyagarajan Committee. However, the High Court thought it fit to give effect to this Committee's recommendation in the final directions issued by it. When the UGC itself has not accepted the recommendations of the said Committee, we do not understand how the High Court sought to give effect to such recommendations. We, therefore, set aside the Allahabad High Court judgment dated 6th April, 2012 in its entirety."
::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 3754. Now what emerges from the above said .
analysis and discussion is that the petitioners admittedly have not qualified NET/SLET/SET, which terms of P.Suseela's case is an essential qualification of for being appointed as Assistant Professor. These writ petitions at their instance are, therefore, not rt maintainable and are accordingly dismissed, leaving the parties to bear the costs.
CWP No. 7366 of 201355. This writ petition has been preferred for quashing of the selections made by the respondent University to the post of Assistant Professor, Fine Arts (Painting) on the ground that there were certain irregularities in the selection process.
56. That respondent University has filed its reply, wherein it has been stated that the present petition is covered by the decision of this Court rendered in CWP No. 2429 of 2013, titled Desh Raj Thakur Vs. H.P. University.
57. As per petitioner own showing he has not qualified NET/SLET/SET examination and, therefore, ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 38 being ineligible like the petitioners in the aforesaid .
cases, he too cannot maintain this petition.
58. Moreover, the petitioner has also not chosen to appear in the interview though to justify the of same, he has levelled allegation that he was dissuaded by the other candidates and even rt members of the ruling party exerted pressure upon him not to appear, but these allegations are totally unsubstantiated.
59. That apart, the record reveals that interviews for the post were held on 26.8.2012, but the instant petition came to be filed after more than one year on 30.8.2013. If at all the petitioner was genuinely aggrieved because of the alleged irregularities in the selection, then what prevented him to approach the Court immediately, is not forthcoming. The allegations are nothing but an afterthought.
60. Accordingly there is no merit in this petition and the same is dismissed, leaving the parties to bear the costs.
::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 39COPCs No. 4266 & 4267 of 2013.
.
61. Petitioners in these petitions have prayed for initiation of proceedings against the respondents under the Contempt of Courts Act on the ground of that they have deliberately and willfully violated the judgment passed by this Court on 25.9.2013 in a batch rt of writ petitions, the lead whereof was CWP No.2429 of 2013.
62. We have considered this submission and are of the considered view that in light of the judgment rendered by the Hon'ble Supreme Court in P.Suseela's case (supra), which in turn has been followed by us while deciding CWP No. 9048 of 2013 along with CWPs No. 9051, 9055, 7031, and 7366 of 2013 (supra), the respondent University will now be required to first decide the eligibility of each of the candidates strictly in accordance with what has been laid down by the Hon'ble Supreme Court in P.Suseela's case and thereafter alone can it proceed to make appointments.
63. This in fact is what has otherwise been directed even by this Court while adjudicating CWP ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP 40 No. 6479 of 2011 titled Surender Sharma & ors Vs. H.P. .
University, where it was held:
"the Executive Council, while considering the recommendations, will have to examine as to whether the recommendees are fulfilling the of requirements specified in the advertisement bearing No.3/11 and as per other mandatory requirements of rules governing the selection rt process and take final decision on that basis."
64. That being the position, no ground for initiating proceedings under the Contempt of Courts Act at this stage is made out and accordingly, both these contempt petitions are dismissed.
(Mansoor Ahmad Mir), Chief Justice.
(Tarlok Singh Chauhan), Judge.
October , 6 2015 (sl) ::: Downloaded on - 15/04/2017 19:03:04 :::HCHP