Himachal Pradesh High Court
Akshay Kumar And Others vs Himachal Pradesh University on 26 June, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.5359 of 2024 Decided on: 26th June, 2024 _________________________________________________________________ .
Akshay Kumar and others ....Petitioners Versus Himachal Pradesh University ...Respondent _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua, Whether approved for reporting? Yes r to ____________________________________________________________ For the petitioners: Mr. Ashwani K. Sharma Mr. Ankit Chandel, Advocates.
and For the respondent: Mr. Nitin Thakur, Advocate.
Professor B.K. Shivram, Professor Hari Singh and Mr. Pankaj Panwar, present in person.
Jyotsna Rewal Dua, Judge With the grievance that the entrance test conducted by the respondent-University for admission to Ph.D. Programme in its Department of Physical Education, was not in consonance with the University Grants __________ Whether reporters of Local Papers may be allowed to see the judgment? yes ::: Downloaded on - 01/07/2024 20:30:06 :::CIS -2- Commission (Minimum Standards and Procedures for Award of Ph.D. Degree), Regulations, 2022, the petitioners have filed this writ petition.
.
2. Following facts are not in dispute.
2(i). The University Grants Commission (UGC in short) on 07.11.2022, notified University Grants Commission (Minimum Standards and Procedures for Award of Ph.D. Degree), Regulations, 2022 (hereinafter referred to as UGC Regulations, 2022). In terms of the following Regulation No.1 (2), these regulations were to apply to every university established or incorporated by or under a Central Act, a Provincial Act or a State Act, every college and every institution deemed to be a University under Section 3 of the UGC Act, 1956:-
"1. Short title, Application, and Commencement: -
(1) These Regulations may be called University Grants Commission (Minimum Standards and Procedures for Award of Ph.D. Degree), Regulations, 2022.
(2) They shall apply to every university established or incorporated by or under Central Act, a Provincial Act or a State Act, every college and every institution deemed to be a University under Section 3 of the University Grants Commission Act, 1956.
(3) They shall come into force from the date of ::: Downloaded on - 01/07/2024 20:30:06 :::CIS -3- their publication in the Gazette of India."
2(ii) Regulation No.5 of the UGC Regulations 2022 prescribes following procedure for admission to the Ph.D. .
Programme :-
"5 Procedure for admission. -
(1) The admission shall be based on the criteria notified by the institution, keeping in view the guidelines/norms in this regard issued by the UGC and other statutory/regulatory bodies concerned, and taking into account the reservation policy of the Central/State Government from time to time.
(2) Admission to the Ph.D. programme shall be made using the following methods:
i HEls may admit students who qualify for fellowship/scholarship in UGC-NET/UGC-CSIR NET/GATE/CEED and similar National level tests based on an interview.
And/or ii. HEls may admit students through an Entrance Test conducted at the level of the individual HEI. The Entrance Test syllabus shall consist of 50% of research methodology, and 50% shall be subject- specific.
iii. Students who have secured 50% marks in the entrance test are eligible to be called for the interview.
iv. A relaxation of 5% marks will be allowed in the entrance examination for the candidates belonging to SC/ ST/ OBC/ differently -abled category, Economically Weaker Section (EWS), and other categories of candidates as per the decision of the Commission from time to time.
v. HEIs may decide the number of eligible students to be called for an interview based on the number of ::: Downloaded on - 01/07/2024 20:30:06 :::CIS -4- Ph.D. seats available..
vi. Provided that for the selection of candidates based on the entrance test conducted by the HEI, a weightage of 70% for the entrance test and 30% for the performance in the interview/viva- voce shall be .
given.
(3) Universities and Colleges which are eligible to conduct Ph.D. programmes, shall:
i. Notify a prospectus well in advance on the institution's website specifying the number of seats for admission, subject/discipline-wise distribution of available seats, criteria for admission, the procedure for admission, and all other relevant information for the candidates;
ii. Adhere to the National/State-level reservation r policy, as applicable.
(4) The Higher Educational Institution shall maintain a list of Ph.D. supervisors (specifying the name of the supervisor, his or her designation, and the department/ school/centre), along with the details of Ph.D. scholars (specifying the name of the registered Ph.D. scholar, the topic of his/her research and the date of admission) admitted under them on the website of the institution and update this list every academic year."
2(iii) The UGC Regulations, 2022 were adopted by the Respondent-University on 09.05.2023. The notification issued by the respondent-University in this regard is extracted hereinafter: -
"No. 1-60/2023-HPU(DS)- Dated: Shimla-5, the 09th May, 2023 NOTIFICATION On the recommendations of the Standing Committee of Academic Council vide item No.1 in its meeting held on 04.02.2023, the Executive Council vide Additional ::: Downloaded on - 01/07/2024 20:30:06 :::CIS -5- Supplementary Item No.6 of its meeting held on 06.04.2023 has approved the adoption of University Grants Commission (Minimum Standards and Procedures for Award of Ph.D. Degree) Regulations, 2022 dated 07.11.2022 and 10.11.2022 (Annexure "A") in toto for its implementation in HP University .
from the session 2023-24.
Sd/-
Dean of Studies Endst. No.: 1-60/2023-HPU(DS)- Dated: Shimla-5, the 9th May, 2023"
2(iv) The respondent-University issued an admission notice on 12.03.2024 inviting applications for admission to its Ph.D. Programme through entrance test for the session 2023-24 in its different departments. At Sr. No.7 of the admission notice, figured Department of Physical Education, wherein six seats were made available for admission to Ph.D. Programme, out of which, four seats were meant for the candidates belonging to General Category and one each for the candidates belonging to Scheduled Castes and Scheduled Tribes categories. The petitioners applied for admission to Ph.D. Programme in the Department of Physical Education.
2(v) The respondent-University conducted an entrance test for admission to Ph.D. Programme in Physical Education on 13.05.2024. The result of the entrance test was declared on 27.05.2024. The petitioners' names did not figure in the ::: Downloaded on - 01/07/2024 20:30:06 :::CIS -6- list of candidates, who were declared to have qualified the written test and were called for personal interview scheduled for 10.06.2024. After declaration of the result, the petitioners .
made representation to the respondent-University on 04.06.2024 with the grievance that in the entrance test, the allocation of questions had not been set in accordance with UGC Regulations, 2022. That as per the UGC Regulations 2022, entrance test paper was to consist of 50% questions on research methodology and 50% was to be subject specific, whereas, the respondent-University had conducted the entrance test for admission to Ph.D. Programme in the Department of Physical Education, wherein out of 80 questions, only 10 questions were set-out from research methodology as against the requirement of 50%.
2(vi). Hearing no response from the respondent-
University, the petitioners preferred this writ petition on 11.06.2024, seeking following substantive reliefs:-
"(I) That the entire selection process for Ph.D. course in physical education in Himachal Pradesh University for the academic session 2024 may kindly be quashed and set aside.
(II) That writ in the nature of mandamus may kindly be issued directing the respondent to hold a fresh selection process for allotment of seats for Ph.D. course in physical ::: Downloaded on - 01/07/2024 20:30:06 :::CIS -7- education, after setting question paper for entrance test in accordance with Regulation 5(2) (ii) of the Regulations 2022 (Annexure P-2).
(III) That the respondent be directed not to publish the result .
of entrance test held on for allotment of sears for Ph.D. course in the department of Physical Education in the respondent University."
2(vii) Initially, this writ petition was listed alongwith CWP No. 5295 of 2024. In that writ petition, following interim order was passed on 10.06.2024: -
"Notice. Mr. Nitin Thakur, learned Standing Counsel, appears and waives service of notice on behalf of the respondent.
It has been contended that the petitioner has applied for the Ph.D. (Physical Education) in response to respondent's admission notice dated 12.03.2024; The petitioner had applied as an OBC candidate and, as such, he is eligible for relaxation of 5% marks in the entrance examination in view of UGC Notification dated 07.11.2022. The petitioner's grievance is that had the respondent granted him 5% relaxation, he would have been eligible for the counselling that was conducted today (10.06.2024) where the requisite criteria was 50% marks.
Learned counsel for the respondent-University states that the counselling is already over, however, result has not yet been declared.
In view of submissions made by learned counsel for the petitioner, the result of the counselling be not declared without leave of the Court till the next date of hearing.::: Downloaded on - 01/07/2024 20:30:06 :::CIS -8-
Respondent to file reply to the petition by the next date of hearing."
CWP No. 5295 of 2024 was dismissed on
.
20.06.2024. On the said date, a separate interim order was passed in this Writ petition that the respondents shall not declare the result of counselling till the next date of hearing.
It is an admitted position that the result of the personal interview has not yet been declared.
3 Submissions 3(i).
Petitioners' main contention revolves around the UGC Regulations 2022 and its non-compliance by the respondent-University while conducting the entrance test for admission to the Ph.D. Programme in Physical Education. It is the specific case of the petitioners that in terms of UGC Regulation No. 5(2)(ii), the entrance test was to consist of 50% questions on research mythology and 50% was to be subject specific. As against this regulation, which had been adopted by the respondent-university vide notification dated 09.05.2023, the entrance test actually conducted on 13.05.2024 for admission to Ph.D. Programme in Physical Education comprised of only ten questions out of total 80 from the research methodology against the requirement of ::: Downloaded on - 01/07/2024 20:30:06 :::CIS -9- 50%. It has also been submitted that this deviation and the wrong setting of the question papers in the entrance test came to the notice of the petitioners after participating in the .
entrance test, whereafter, representation was preferred by the petitioners on 04.06.2024 to the respondent--University, which went un-responded.
3(ii) Learned counsel for the respondent-University highlighted following aspects: -
(a) Petitioner No.1 had also preferred CWP No. 5295 of 2024, wherein, he had sought 5% relaxation in marks as a candidate belonging to OBC category in the entrance test. The said petition has already been dismissed on 20.06.2024. Hence, this particular petitioner was estopped from instituting the present petition.
(b) Petitioners have not impleaded such of the individuals who have qualified the entrance test and have been called for interview. Therefore, the writ petition is not maintainable on account of non-impleadment of necessary parities.
::: Downloaded on - 01/07/2024 20:30:06 :::CIS- 10 -
(c) Learned counsel for the respondent--University also submitted that the petitioners had participated in the entrance test and it was .
only after declaration of the result of entrance test that they raised the grievance of entrance test having not been conducted in accordance with the UGC Regulations 2022.
4. Consideration I have heard learned counsel on both sides and considered the case file. My observations are as under: -
4(i) It is a fact that present petitioner No.1 had also instituted CWP No. 5295 of 2024, seeking relaxation of 5% marks in the entrance test. However, that relaxation was sought by him on the basis of the UGC Regulations 2022.
Petitioner's case in that writ petition was for granting relaxation of 5% marks in his favour in the entrance test on the pretext of his belonging to OBC category. His contention was not accepted on account of the fact that no post in the admission notice was reserved for the candidates belonging to the OBC category and he had applied as a General Category candidate. Therefore, CWP No. 5295 of 2024 was dismissed ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 11 -
holding that the petitioner was not entitled to 5% relaxation in marks in the entrance test. Significantly, in that petition also, the petitioner had pressed the UGC Regulations 2022 in .
service for seeking the relief in his favour. Petitioner No.1 had almost simultaneously preferred this writ petition alongwith nine other petitioners against the entrance test held by the respondent-University on the ground that UGC Regulations 2022, had not been followed by the respondent-University in letter and spirit while conducting entrance test in Physical Education for the session 2023-24. Under the circumstances, it will be too far-fetched to hold that having preferred CWP No. 5295 of 2024, petitioner No.1 cannot maintain the present writ petition. In any case, there are nine other petitioners in this petition. The writ petition, therefore, is maintainable. It is an admitted fact that pursuant to the interim order passed by the Court, the final result of the selection process has not been declared. As such, no one has acquired any vested right as yet for admission to Ph.D. Programme in Physical Education.
4(ii) It is a fact that UGC Regulations 2022 were notified on 07.11.2022. Clause (1) of these regulations make ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 12 -
the same applicable to every university established or incorporated by or under a Central Act, a Provincial Act or a State Act. Learned counsel for the respondent-University .
does not dispute the applicability of the UGC Regulations 2022 to the respondent-University. In fact, the respondent-
University has itself issued a notification on 09.05.2023, adopting the UGC Regulations 2022 in toto for its implementation that too from the session 2023-24.
4(iii) It is a fact that the admission notice in question issued on 12.03.2024, invited applications for admission to Ph.D. Programme through entrance test for the session 2023-
24. In the admission notice, following criteria was laid down for the entrance test.
"The criteria for Entrance Test are as under: -
a. Written Test will be of 80 marks. b. Qualifying marks (Percentage) for all the candidates for Ph.D. program shall be 50% for General Category and 45% for reserved categories (SC/ST/PwD) c. Weightage will be maximum of 10% of the marks obtained in the Entrance Test and will give as under: -
i. NET-JRF. other equivalent fellowship, NET and GATE-10% of the marks obtained in the Entrance Test by the Candidate.
ii. SLET/M.Phil-5% of the marks obtained in the ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 13 -
Entrance Test by the Candidate.
iii. Research Aptitude- 12 Marks through personal interview based on research proposal.
.
............XXXX NOTE:
1. The candidates to Ph.D. Programme through Entrance Test will be admitted strictly in accordance with the H.P. University rules related to admission in Ph.D. Programme notified vide Notification No. 7-1/2022- HPU(Acad.) dated 12 October, 2023 and No. 1-60/2024-1HPU(DS) dated 04.3.2024."
4(iii)(a) Learned counsel for the respondent-University submitted that in the above criteria for the entrance test laid down in the admission notice dated 12.03.2024, it was clearly indicated that the written test was to be of 80 marks and research aptitude was to be tested, for which 12 marks through personal interview were allocated based on research proposals. It was further submitted that as per Note (1) of the admission notice dated 12.03.2024, candidates to the Ph.D. Programme through entrance test were to be admitted strictly in accordance with the H.P. University Rules related to Ph.D. Programme notified on 12.10.2023 and 04.03.2024.
During the course of hearing, notification dated 12.10.2023 was produced, which is taken on record.
::: Downloaded on - 01/07/2024 20:30:06 :::CIS- 14 -
However, this notification does not at all specify the pattern of questions/percentage thereof to be set up in the entrance test. The Dean of Studies of the respondent-University has .
attended the hearing and submitted that Regulation No. 5(2)(ii) of the UGC Regulations 2022 was not followed while conducting the entrance test for admission to Ph.D. Programme in Physical Education for the reason that there appeared to be conflict between the notification dated 12.10.2023, issued by respondent-University and the UGC Regulations, 2022.
4(iii)(b) The aforesaid submission cannot be countenanced for the simple reasons that: - Firstly, there is apparently no conflict between the respondent's notification dated 12.10.2023 and the UGC Regulations 2022, notified on 07.11.2022. The respondent's notification dated 12.10.2023 does not at all prescribe the pattern/head wise percentage of questions (syllabus) to be set up for conducting the entrance test. This percentage of questions and pattern has been prescribed only in the UGC Regulation, 2022. Secondly, the respondent has itself issued a notification dated 09.05.2023, adopting the UGC Regulations, 2022 in toto for its ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 15 -
implementation in the University from the session 2023-24.
The entrance test in question was for the session 2023-24.
Thirdly, UGC Regulations will in any case have a binding .
force:-
In Kalyani Mathivanan Vs. K.V. Jeyaraj and others1, some of the issues for consideration before the Hon'ble Apex Court were (i) whether UGC Regulations, 2010 are mandatory in nature; (ii) In the event of conflict between the University r Act and the UGC Regulations, which of the two would have overriding effect. Hon'ble Apex Court considered the provisions of the UGC Act, 1956 in particular, Sections 26 and 28 thereof. Section 26 gives power to the UGC to frame regulations and under Section 28, the Rules and Regulations so framed are to be laid before each House of Parliament. It is only when both Houses of the Parliament approves the legislation, the same can be given effect to. The Hon'ble Apex Court, inter-alia, held:-
"...........Thus, we hold that the U.G.C. Regulations though a subordinate legislation has binding effect on the Universities to which it applies; and consequence of failure of the University to comply with the recommendations of the Commission, the UGC may withhold the grants to the university made out of the 1 (2015) 6 SCC 363 ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 16 -
Fund of the Commission. (See Section 14)."
The Hon'ble Apex Court then considered 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, involved in the said case and held as under:-
"61.
We do not agree with the finding of the Bombay High Court that Regulation 7.3.0 of the UGC Regulations, 2010 is not traceable to clause (e) or (g) of Section 26(1) of UGC Act, 1956. We also refuse to agree that Regulation 7.3.0 of the UGC Regulations, 2010 being a sub-ordinate legislation under the Act of Parliament cannot override the preliminary legislation enacted by the State Legislature. However, the finding of the Bombay High Court that Regulation 7.3.0 has to be treated as recommendatory in nature is upheld in so far as it relates to Universities and Colleges under the State Legislation.
62. In view of the discussion as made above, we hold:
62.1 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 Concurrent List shall be repugnant to the Central Legislation and would be inoperative.::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 17 -
62.2 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. 62.3 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.
62.4 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.
62.5 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."
The above judgment was reiterated by the Hon'ble Apex Court in Meher Fatima Hussain Vs. Jamia Milia Islamia & Ors.2, as under:-
"25. As far as the role of the UGC is concerned, in paragraph 27 of the decision of this Court in the case of Kalyani 2 Civil Appeal No. 4963 of 2024, decided on 15.04.2024.::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 18 -
Mathivanan v. K.V. Jeyaraj and others, this Court held thus:
"27. From the aforesaid provisions, we find that the .
University Grants Commission has been established for the determination of standard of universities, promotion and coordination of university education, for the determination and maintenance of standards of teaching, examination and research in universities, for defining the qualifications regarding the (2015) 6 SCC 363 teaching staff of the university, maintenance of standards, etc. For the purpose of performing its functions under the UGC Act (see Section 12) like defining the qualifications and standard that should ordinarily be required of any person to be appointed in the universities [see Sections 26(1)(e) & (g)] UGC is empowered to frame regulations. It is only when both the Houses of Parliament approve the regulation, the same can be given effect to. Thus, we hold that the UGC Regulations though a subordinate legislation has binding effect on the universities to which it applies;
and consequence of failure of the university to comply with the recommendations of the Commission, UGC may withhold the grants to the university made out of the fund of the Commission (see Section14)."
26. This Court has highlighted the importance of the position of UGC. It is true that the letter dated 25th June 2019 addressed by the UGC has used the word 'may'. However, considering the statutory position of the UGC, there was no reason for the University not to follow what the UGC stated. Much capital was made of the fact that the letters of appointment mentioned that the posts were ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 19 -
tenure posts till the XII Plan period or till the scheme lasted. We may note that nothing has been placed on record showing that the scheme expired. Moreover, the appellants should have been continued after the merger, .
as suggested by the UGC.
27. At this stage, we may also refer to the case of Somesh Thapliyal. This Court was dealing with a case of appointment of teachers (Associate Professors/Assistant Professors). They were appointed after going through the process of selection provided under the Uttar Pradesh State Universities Act, 1973. In paragraphs 49 and 50, this Court held thus:
"49. In our considered view, once the appellants have r gone through the process of selection provided under the scheme of the 1973 Act regardless of the fact whether the post is temporary or permanent in nature, at least their appointment is substantive in character and could be made permanent as and when the post is permanently sanctioned by the competent authority.
50. In the instant case, after the teaching posts in the Department of Pharmaceutical Sciences have been duly sanctioned and approved by the University Grants Commission of which a detailed reference has been made, supported by the letter sent to the University Grants Commission dated 14-8-2020 indicating the fact that the present appellants are working against the teaching posts of Associate Professor/Assistant Professor sanctioned in compliance of the norms of the AICTE/PCI and are appointed as per the requirements, qualifications and selection procedure in accordance with the ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 20 -
1973 Act and proposed by the University, such incumbents shall be treated to be appointed against the sanctioned posts for all practical purposes."
.
It will also be in place to refer to Professor (Dr.) Sreejith P.S. Vs. Dr. Rajasree M.S. & Ors3, where the submissions made on behalf of the State that unless the UGC Regulations are specifically adopted by the State, the UGC Regulations shall not be applicable and the State legislation judgment are as under:-
r to shall prevail, was not accepted. Relevant paras from the "8.2 Even in the case of Kalyani Mathivanan (supra), it is observed in paragraph 53 that to the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List, the same shall be repugnant to the Central legislation and would be inoperative. It is also required to be noted that in the case of Kalyani Mathivanan (supra), this Court was considering the UGC Regulations, 2010, which were silent in regard to the post of Vice Chancellor . 8.3 The decision of this Court in the case of Gambhirdan K. Gadhvi (supra) has been subsequently followed by this Court in the recent decision of this Court in the case of Anindya Sundar Das & Ors (supra) while considering the appointment of the Vice Chancellor of Calcutta University. In the said decision, it is also observed and held in paragraph 56 that in view of the decision in the 3 Civil Appeal No. 7634 of 2023 decided on 21.10.2022 ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 21 -
case of Gambhirdan K Gadhvi (supra), even if the provisions of the State Act allowed the appointment of the Vice Chancellor by the State government, it would have to be as per the UGC Regulations and any .
appointment of Vice Chancellor in violation of the UGC Regulations shall be void ab initio. It is further observed that the UGC Regulations shall become part of the statute framed by Parliament and, therefore, shall prevail.
8.4 In view of the above two binding decisions of this Court, any appointment as a Vice Chancellor made on the recommendation of the Search Committee, which is constituted contrary to the provisions of the UGC Regulations shall be void ab initio. If there is any conflict between the State legislation and the Union legislation, the Union law shall prevail even as per Article 254 of the Constitution of India to the extent the provision of the State legislation is repugnant. Therefore, the submission on behalf of the State that unless the UGC Regulations are specifically adopted by the State, the UGC Regulations shall not be applicable and the State legislation shall prevail unless UGC Regulations are specifically adopted by the State cannot be accepted.
8.5 Even otherwise, it is required to be noted that in the present case as such vide order dated 10.12.2010, the UGC Regulations have been specifically adopted by the State Government. At this stage, it is required to be noted that in the order dated 27.03.2010, while adopting/accepting the UGC Regulations, it is specifically observed in paragraph 5 that all the universities shall incorporate the UGC Regulations in their Statutes and Regulations within one month from thedate of the said order and Government will initiate ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 22 -
steps to amend the Acts of the Universities, if required to implement the Regulations. It is further mentioned in paragraph 5 that Government will also take the steps to amend the Special Rules to give effect to the stipulations .
of the UGC Regulations. Merely because the subsequent amendment has not been specifically adopted/accepted by the State cannot be a ground by the State to contend that the amendment to the Regulations shall not be binding on the State/State's Universities. Therefore also, the UGC Regulations were applicable with respect to the appointment of Vice Chancellor in the respective Universities in the State and the appointment of the Vice Chancellor shall be always as per the relevant provisions of the UGC Regulations amended from time to time."
4(iv) Insofar as the petitioners' participation in the entrance test is concerned, suffice to note that before appearing in the entrance test, the petitioners cannot be expected to have the knowledge that the respondent would not comply with the UGC Regulations, 2022 while setting up the question paper for the entrance test. The entrance test was held on 13.05.20224 and after declaration of result, the petitioners preferred their representation on 04.06.2024.
It would also be appropriate, at this stage, to refer to Dr. (Major) Meeta Sahai Vs. State of Bihar and ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 23 -
others4, wherein the Hon'ble Apex Court held that a candidate by agreeing to participate in the selection process only accepts prescribed procedure and not the illegality in a .
situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, accordingly, the same cannot be condoned merely because a candidate has partaken in it. Relevant paras from the judgment are as under: -
"15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for respondents relied upon a catena of decisions of this Court to substantiate his objection.
16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumar Shahi v. State of Bihar, observing as follows:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would 4 (2019) 20 SCC 17 ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 24 -
not have even dreamed of challenging the selection. The appellant invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant .
clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."5 The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
18. The question of permissibility of giving weightage for 'work experience' in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non- private hospitals serve a ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 25 -
public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government .
hospitals and private hospitals as distinct classes.
Instead such recognition ensures that the doctors recruited in not so rich states like Bihar have the requisite exposure to challenges faced in those regions."
19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of 'work experience' as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not."
In Krishan Rai (dead) through legal representatives and others Vs. Banaras Hindu University through Registrar and others5, settled principle was reiterated that principle of estopple cannot override law.
Relevant paras from the judgment are as under:-
19. In the present case, the Board of Examiners comprising of large number of Members changed the entire 5 (2022) 8 SCCC 713 ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 26 -
procedure and they established a completely new procedure. They awarded 20 marks for the type test treating it to be compulsory, 60 marks for the written departmental test of simple English, Hindi and .
Arithmetic with 20 marks for each subject and further introduced an interview of 20 marks. Thus, the merit list was to be prepared on the total 100 marks as distributed above.
20. There is neither any provision nor any other indication in the Manual duly approved by the Executive Council for preparing such a merit list based upon the marks awarded under different heads. The promotion was to be made on the basis of seniority subject to passing the departmental written test, once the candidate was eligible having five years' experience in Class IV and matriculation certificate or equivalent. The intention and object as culled out from the aforesaid eligibility procedure was that, seniority subject to qualifying the written test would be the criteria for promotion.
21. The Board of Examiners on their own changed the criteria and made it purely merit based by introducing an interview and also preparing the merit list on the basis of marks awarded in the type test, written test and interview. As per the provisions of Clause 6.4 of the Manual, type test was not mandatory. Anybody who would fail in the type test, could also be promoted subject to the rider that they would have to qualify the type test within two years from his joining.
22. What we notice is that, the Division Bench approved the reasoning of the learned Single Judge. The relevant extract of the judgment of the Division Bench is reproduced below:
::: Downloaded on - 01/07/2024 20:30:06 :::CIS- 27 -
"Learned Single Judge as already noted above has rightly proceeded to observe that interview was not at all subscribed by the provisions holding the field. We are also of the same view that procedure prescribed ought to have been adhered to by the Board of Examiners. Board of .
Examiners on their own could not have changed the procedure already holding the field as laid down by the Executive Council."
23. However, the Division Bench fell in error in applying the principle of estoppel that the appellants having appeared in the interview and being unsuccessful proceeded to challenge the same and on that ground alone, allowed the appeals, set-aside the judgment of the learned Single Judge. The Division Bench having approved the reasoning of the learned Single Judge, ought not to have interfered in the judgment of the learned Single Judge on a technical plea. The Division Bench ought to have considered that the appellants were Class-IV employees working from 1977 onwards and expecting from them to have raised serious objection or protest at the stage of interview and understanding the principles of changing the Rules of the game, was too farfetched, unreasonable and unwarranted.
24. The case laws relied upon by the Division Bench would have no application in the facts of the present case as none of the judgments relied upon by the Division Bench laid down that principle of estoppel would be above law. It is settled principle that principle of estoppel cannot override the law. The manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence."
::: Downloaded on - 01/07/2024 20:30:06 :::CIS- 28 -
In view of above discussion, the UGC Regulations 2022 will have binding force. In the instant case, not only the respondent-University admits of binding nature of the UGC .
Regulations 2022, but had also specifically adopted them from session 2023-24. It is also an admitted position that the entrance test for admission to Ph.D. Programme in the Department of Physical Education had not been conducted in accordance with Regulation No. 5(2)(ii) of the UGC Regulations 2022. The reason given for not adhering to this regulation, of there being a conflict between the UGC Regulations and the respondent-University's notification is fallacious, imaginary and unsustainable.
5. For the foregoing reasons, it has to be held that the entrance test conducted by the respondent-University for admission to Ph.D. Programme in Physical Education for the academic session 2023-24 was not in consonance with the Regulation No. 5(2)(ii) of UGC Regulations 2022.
The writ petition is accordingly, allowed. The selection process undertaken by the respondent-University for admission to Ph.D. Programme in Physical Education for the academic session 2023-24, is quashed and set aside. The ::: Downloaded on - 01/07/2024 20:30:06 :::CIS
- 29 -
respondent-University is at liberty to hold fresh selection process in accordance with law.
Pending miscellaneous application(s), if any, also .
to stand disposed of.
Jyotsna Rewal Dua
Judge
June 26, 2024
R.Atal
r to
::: Downloaded on - 01/07/2024 20:30:06 :::CIS