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Judgment
S.B. Sinha, J.—Both, these writ applications involving common questions of fact and law were taken up for hearing together and are being disposed of by this common judgment.
An advertisement dated 23rd November, 1993, issued by the Bihar State University (Constituent College) Service Commission (hereinafter referred to as the ''University Service Commission'') published in newspaper ''Hindustan'' whereby and whereunder applications have been invited for appointment to the post of Lecturers in different Universities/Constituent colleges, is in question.
From a perusal of the said advertisement, it would appear that the minimum qualification required for appointment to the post of Lecturers is a Master''s degree in the relevant subject having at least minimum 55 per cent marks. Holding of a degree of M.Phil and Ph.D in the relevant subject was to be considered as an additional qualification, it was stated therein that the minimum qualification may be relaxed even in respect of candidates who have research degree like M.Phil/Ph.D.
According to the Petitioners the qualifications prescribed in the said advertisement is not in consonance with the standard prescribed by the University Grant Commission, whereby eligibility task known as ''National Eligibility Test'' was prescribed.
It has been contended that the University Grants Commission Act, 1953 (hereinafter referred to as ''the said Act'' being an act enacted by the Parliament of India in terms of Entry 66, List I of the VIIth Schedule of the Constitution of India shall override the provisions of the Bihar Inter-State University Board Act (hereinafter referred to as ''the Board Act'' as also Bihar State Universities Act, 1976 (hereinafter referred to as the 1976 Act) which have been enacted by the Legislature of Bihar under Entry No. 25 of List III thereof.
There are 12 Universities in the State of Bihar which are governed by the 1976 Act, apart from the Patna University which is governed by the Patna University Act.
Section 57 of the 1976 Act and Section 56 of the Patna University Act lay down the provisions for appointment in different Universities/Constituent colleges.
The 1976 Act does not contain any provisions laying down the qualification of any lecturers. Such appointment used to be governed under the Statute framed by the different Universities, by reason of Bihar Act No. 18 of 1993 known as Patna University (Amendment 1993) Act and Bihar Act. No. 17 of 1993 (known as Bihar State University Amendment Act, 1993), a provision has been made for appointment of persons in a teaching post upon holding a competitive examination to be conducted by the University Service Commission. The said amendment Acts are contained in Annexure 2 and 3 to the writ applications.
Sub-section (2) of Section 5 of the Act confers an overriding power in the State and which reads as follows:
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The Parliament had enacted the University Grants Commission Act, 1953 (Act No. 3 of 1956) with a view to make provision for co-ordination and determination of the standard in Universities and for that purpose, to establish the University Grants Commission.
Section 26(1) of the said Act empowers the Commission to frame a regulation.
In exercise of its aforementioned power the University Grants Commission had framed a regulation known as University Grants Commission (A qualification required of a person to be appointed to the teaching staff of a university and institutions affiliated to it) Regulations 1991.
A notification publishing the aforementioned regulations was issued on 19th September, 1991. The relevant provisions of the Regulations reads the:
3(A)
(a) Arts, Sciences, Social Sciences, Commerce, Education, Physical Education, Foreign languages and Law.
Good academic record with atleast 50% marks or an equivalent grade at master degree level in the relevant subject from an Indian University or an equivalent degree from foreign University.
Candidates besides fulfilling the above qualifications should have cleared the eligibility test for lecturers conducted by U.G.C. CSIR or similar test accredited by UGC.
The Chancellor of the Universities issued a letter dated 9th September, 1988, in terms of the guidelines issued by the University Grants Commission and on the advice of the Inter University Board as also the State Government whereby the following qualifications for appointment in the posts of lecturers were laid down:
(i) Minimum qualification of master''s degree in the relevant subject with 55 per cent marks or its equivalent grade and uniformally good academic record;
(ii) M.Phil, or Ph.D. in relevant subject as additional qualification; and
(iii) Minimum qualification is not to be relaxed even with respect to the candidates having qualifications of M.Phil/Ph.D that is the qualification of master''s degree with 65 per cent marks cannot be relaxed.
The University Grants Commission thereafter issued a corrigendum in terms whereof a persons who had passed M.Phil, or Ph.D. would also be entitled for appointment if they hold minimum qualification of post graduate degree with 55% marks and has submitted the sets for his such M.Phil and/or Ph.D. degrees upto 31st December, 1992/31st December, 1993 respectively.
It is stated that a letter dated 14th January, 1993 had been issued whereby and whereunder the minimum qualification for appointment to the post of Teachers/Lecturers laid down by the University Grants Commission has been declared as mandatory. According to the Petitioners, the said conditions have been accepted by the State of Bihar and the Bihar State University Board on principles.
Learned Counsel appearing on behalf of the Petitioner inter-alia submitted that the higher education being a central subject as envisaged under Entry 66 of List I of the Constitution, the U.G.C. Act shall prevail over the provisions of the said Act.
It has further been submitted that the power of the State Legislature to enact any law in the filed of education in terms of Entry 25 of List III of the Constitution of India being subject to Entries 63 to 66 of List I, the Central Act must prevail over the State Act and in that view of the matter it must be held that entire field of higher education is occupied by the Central Government in terms of Entry 66 of List I of the Constitution of India.
Reliance in this connection has been placed upon Osmania University Teachers'' Association Vs. State of Andhra Pradesh and Another, and Fatehchand Himmatlal and Others Vs. State of Maharashtra, .
Alternatively it has been submitted that even if there is any repugnancy between the Central Act and the State Acts, the Central Act shall prevail over the State Act.
Reliance in this connection has been placed in T. Barai Vs. Henry Ah Hoe and Another, .
The learned Advocate General appearing on behalf of the State, however, submitted that the scope of the Central Act is limited. It is stated that the qualification laid down under the regulation is not mandatory.
The learned Advocate General Submitted that the State has also some power to make legislation in the field of education and it can dispense with holding of NET which is not binding upon the State Government.
The learned Additional Advocate General, on the other hand conceded that in view of Entry No. 66 of List I of Constitution of India the regulations framed by the University Grants Commission shall prevail over the statute framed under the Bihar State University Act or Patna University Act or Bihar State Inter University Board Act but submitted that in view of the fact that in the State of Bihar no appointment in the post of Lecturer has been made since the year 1983, the 1991 regulations cannot have any application in the instant case, as the candidates are awaiting appointments since 1983.
It was submitted that the University Grants Commission held the last examination in the year 1991 and thus no further examination having been held, the court may not insist upon the holding of any test as an eligibility test particularly in view of the fact that the Commission is also to hold a written test in terms of the Statute.
Mr. P.N. Roy and Mr. Rafat Alam appearing on behalf of the Universities, however, submitted that only that part of the regulation framed by the Commission whereby the minimum qualification has been laid down as 55% in the Master''s examination is mandatory and other part thereof is not mandatory.
Mr. Yugal Kishore, the learned Counsel appearing on behalf of the Respondent No. 1-Commission submitted that it has issued the advertisement in question in terms of the provisions of the said Act.
In the backdrop of the aforementioned rival contentions the only question which arises for consideration is as to whether the advertisement issued in terms of the statute framed by the Chancellor shall prevail over Regulations framed by the University Grants Commission?
Entry 66 of List I and Entries 67 to 68 of List I of the Seventh Schedule of the Constitution of India reads thus:
Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
Ancient and historical monuments and records, and archaeological sites and remains (declared by or under law made by Parliament) to be of national importance.
The Survey of India, the Geological, Botanical, Zoological and Anthropoligcal Surveys of India, Meteorological organisations.
The preamble and Statement of Object and Reasons of University Commission Act reads thus:
Preamble.--An Act to make provision for the co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission.
The Constitution of India vests Parliament with exclusive authority in regard to'' co-ordination and determination of standards in institutions for higher education or researches and technical institutions. It is obvious that neither co-ordination nor determination of standards is possible unless the Central Government has some voice in the determination of standards of teaching and examination in Universities both old and new. It is also necessary to ensure that the available resources are utilised to the best possible effect. The problem has become more acute recently on account of their tendency to multiply Universities. The need for a properly constituted Commission for determining and allocating to universities funds made available by the Central Govt. has also become more urgent on this account.
It is, therefore, proposed to establish a University Grants Commission as a corporate body which will inquire into the financial needs of Universities and allocate and disburse grants to Universities for any general or specified purpose. The commission will also have the power to recommend to any University the measures necessary for the reform and improvement of University education and to advise the University concerned.
Upon the action to be taken for the purpose of implementing such recommendation, the Commission will act as expert body to advise the Central Government on problems connected with the co-ordinatation of facilities and maintenance of standards in Universities. The Commission will also have the power to cause an inspection or inquiry to be made for any university established by law in India to advises sought on the establishment of new Universities.
It may be noticed that previously there existed an Entry in List II being Entry No. II which was deleted by reason of Constitution 42nd Amendment Act and substituted by Entry 25 of List III of the Constitution.
Entry 25 of List III of the Constitution as noticed hereinbefore is subject to Entries 63 to 66 of List I of the Constitution of India.
At the outset, it would be useful to quote the relevant provisions of the said Act:
Section 12.--It shall be in the general duty of the Commission to take, in consultation with the Universities or other Bodies, concerned, all such steps as it may think fit for the promotion and co-ordination of University Education and co-ordination of University Education and for the determination and maintenance of standards of leaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may--
....
(j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions.
2(a)(1)
In this section--
(d) qualification means a degree or any other qualification awarded by a university.
Section 14.--If any University grants affiliation in respect of any course of study to any college referred to in Sub-section (5) of Section 12A in contravention of the provisions of that sub-section or fails within a reasonable time to comply with any recommendation made by the Commission u/s 12 or Section 13, (or contravenes the provisions of any rule made under Clause (f) or Clause (g) of Sub-section (2) of Section 25, or of any regulation made under Clause (e) or Clause (f) or Clause (g) of Section 26, the Commission, after taking into consideration the cause, if any, shown by the University (for such failure or contravention) may withhold from the University the grants proposed to be made out of the Fund of the Commission.
Section 26.--The Commission may by notificution in the official Gazettee, make regulations consistent with this Act and the rules made thereunder--
....
(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.
The said Act was enacted for co-ordination and determination of the standard of Universities which means of the University situated within the territory of India. The University Grants Commission in terms of the provisions of the said Act is empowerd to lay down conditions for appointment. In terms of Section 26(1)(e) of the said Act it is empowered to make regulations laying down the qualification that should ordinarily be required, if any person is to be appointed to the teaching staff of the University.
The National Eligibility Test (N.E.T. for short) laid down by the Conimission is an eligibility test and not recruitment lest. Fixing the criteria of eligibility of a person to be appointed to the post of a Lecturer is not and cannot be directory inasmuch as only when a person becomes eligible therefor, he can apply for appointment in the post of Lecturer. In our opinion, therefore, passing the N.E.T. is an essential qualification which must be possessed by the candidate before he can be considered for appointment in the post of Lecturer.
In Osmania University Teachers'' Association Vs. State of Andhra Pradesh and Another, , the Supreme Court upon taking into consideration its earlier decision in Prem Chand Jain and Another Vs. R.K. Chhabra, held thus:
Entry 25 List III relating to education including technical education, medical education and Universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List HI should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of higher education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to co-ordinate and determine the standards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state such a coordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to education has been distributed between List I and List III of the Seventh Schedule.
In the result, these appeals are allowed with costs. The judgment of the High Court is reversed. There shall be a direction to the State not to enforce the provisions of the impugned Act.
The Constitution of India vests Parliament with exclusive authority in regard to co-ordination and determination of standard in institutions for higher education. The Parliament has enacted the UGC Act for that purpose. The University Grants Commission, has therefore, a greater rule to play in shaping the academic life of the country. It shall not falter or fail in its duty to maintain a higher standards of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs. It is hoped that University Grains Commission will duly discharge its responsibility to the Nation and play an increasing role to bring about the needed transformation in the academic life of the Universities.
The Supreme Court further in Fatehchand Himmatlal and Others Vs. State of Maharashtra, inter-alia held:
Let us look at the basics of the legal situation before us, before examining the wealth of learning counsel has accumulated. Article 246 vests exclusive power in Parliament over matters enumerated in List I (Seventh Schedule) and the State Legislature enjoys like power over topics in List II subject to Clauses (1) and (2) of the Article. Plainly, therefore, the State can legislate upon any Entry in the State List. We may visualize situations, where parliamentary occupation may exclude the State Legislature. Where for instance, Parliament, while enacting on a matter in the Union list, makes as it is entitled to make, necessary incidental provisions to effectuate the principal legislation, such ancillary expansion may trench upon the State field in List II. In such a case, if the State makes a law on an Entry in its exclusive List, and such law covers and runs counter to what has already been occupied by Parliament, through incidental provisions, it may be argued that the State Law stands pushed out on account of the superior potency of ''Parliament''s power in our constitutional scheme. Again there are certain tell-tale heads of legislation in the Lists where one may plausibly invoke the doctrine of occupied field. Examples may, perhaps, be furnished by Entries 52 and 54 of List I, Entries 23 and 24 of List II and Entry 33 of List III. Without fear of contradiction, we may assert that Article 246(3) read with Entry 30 in List II, empowers the State to make the impugned law. When then is it incompetent? Because, says Mr. Nariman, the field of gold industry is already occupied by Parliament and the State Legislature therefore stands excluded. Entry 52 in List I reads:
Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
Parliament in the Industries (Development and Regulation) Act, 1951 (Act 65 of 1951) has made the necessary declaration contemplated in Entry 52 and has occupied the field of ''gold Industry'' as is evident from reading Section 2 and item 1B(2) of the First Schedule therein. This expression of parliamentary intent to legislate upon the gold industry is enough to expel from that field the State Legislature. This is Shri Nariman''s contention. But what is the sequitur? Assuming the appropriation by Parliament of the power to legislate on gold, what follows? It can make laws directly on that industry and ancillarily on every allied area where effective exercise of the Parliamentary power necessitates it, So much so "business in golds", licensing of gold merchants, regulation of making or pledging of gold ornaments, keeping of jewellery, disclosure of gold possession and the like are incidental to the parliamentry power and purpose and the Gold Control Act, 1968 and the Rules made thereunder are valid (vide, for example, Harakchand Ratanchand Banthia and Others Vs. Union of India (UOI) and Others, Several sections of the Act, some rules and a few rulings were read before us to drive home the point that gold loans are already within the ken of the law made under Entry 52 List I. If so what? Does it spell death sentence on the Debt Act? Or maim it? Or leave it intact?
We may sum up the legal position to the extent necessary for our case. Where Parliament has made a law under Entry 52 of List I and in the course of it framed incidental provisions affecting gold loans and money-lending business involving gold ornaments, the State, making a law on a different topic, but covering in part the same area of ''gold loans'' must not go into irreconcilable conflicts. Of course, if Article 254(2) can be invoked--we will presently examine it--then the State law may still prevail since the assent of the President has been obtained for the Debt Act. Thirdly the doctrine of ''occupied field'' does not totally deprive the State Legislature from making any law incidentally referrable to gold. In the event of plain conflict, the State law must step down unless, as pointed out earlier in the previous passage, Article 254(2) comes to the rescue.
Articles 246 and 254 of the Constitution of India reads thus:
246 Subject matter of laws made by Parliament and by the Legislatures of States (i) Notwithstanding anything in Clauses (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (In this Constitution referred to as the ''Union List'').
(2) Notwithstanding anything in Clause (3), Parliament and subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the ''Concurrent List'').
(3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.
Inconsistency between laws made by Parliament and laws made by the Legislature of State--
(1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provision of an earlier law made by Parliament or an existing law with respect to that matter, then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time law with respect to the same matter including the law so made by the Legislature of the State.
As noticed hereinbefore, Entry 25 of List III of the Constitution of India is subject to Entry 63 to 66 of List I of the Constitution.
In terms of Article 246 of the Constitution of India the power to enact in terms of any entry in List I is exclusively within the domain of the Parliament. In terms of the concurrent List both the Parliament and the States Legislature have power to make legislation in the fields covered under the concerned entries but there cannot be any doubt that in case of repugnancy between a Central Act and a State Act, the Central Act shall prevail.
As noticed hereinbefore, the learned Advocate General merely suggested that by reason of Entry 25 of List III of the Constitution, the State is vested with some powers. He did not elaborate his submission which were absolutely vague.
In our opinion, the powers of the State to make a Legislation in the field covered under Entry 66 of List I can be exercised only subject to the provisions of the University Grants Commission Act.
The Bihar State Universities Act, 1976 as amended in the year 1993 as also the Bihar Inter State University Boards Act are in our opinion, being subject to the University Grants Commission Act, the essential qualification for appointment of the lecturers must be held be the criteria laid down by the University Grants Commission.
In terms of the University Grants Commission Act it is the University Grants Commission alone which can lay down standard of education in higher education in the country and for that purpose it is also entitled to lay down the qualifications of the lecturer for appointment in the said posts.
For the purposes of judging the qualification of a Lecturer the University Grunts Commission, in our opinion, is also entitled Jo hold an examination. Laying down a provision for passing of such an examination, as an eligibility clause, is in our view, within the competence of the University Grants Commission.
The submission of the learned Advocate General, therefore, to the effect that the State having some power to make legislation in the field of higher and technical education can dispense with holding of examination is not correct.
As noticed hereinbefore, however, the learned additional Advocate General for all intent and purport conceded that the directives issued by the University Grants Commission shall prevail over the directives issued by the State of Bihar in exercise of its power under the Bihar State University Act, 1976, as amended in the year 1993.
The contention of the learned additional Advocate General to the effect that the said regulations of 1991 cannot be followed as no appointment had been made to the post of Lecturer since, 1983, however, cannot also be accepted as it is well known that appointments have to be made in terms of the law as existing on the day when the process of selection commenced. It is not the case of the Respondent that process of appointment had begun prior to coming into force of 1991 regulations. If the process of selection had begun prior to coming into force of 1991 Regulations, such a contention could have been raised. The 1991 Regulations framed by the University Service Commission having the force of law and being mandatory in nature, the same cannot be given a go-bye only because the vacancies exist since 1983.
The submission of Mr. P.N. Rai, and Mr. Rafat Alam, learned Counsel appearing on behalf of the University to the effect that only that part of the regulation whereby a candidate was required to have obtained at least 55% marks is mandatory and other parts of the directory also for the aforementioned reasons cannot be accepted.
At the cost of the repetition, it may be reiterated that laying down of standard of education is the exclusive function of the University Grants Commission under the Central Act and no deviation or departure therefrom is permissible at the instance of the State. Laying down the condition for appointment of a Lecturer being concomitant to laying down the standard of education for imparting education to the students of the University, and thus it must be held that the entire regulation is mandatory. No exception to the aforementioned rule, in our opinion, can be taken in view of the decisions of the Supreme court in Osmania''s case (Supra) and Fatechand Himmatlal case (Supra).
It will also not be out of place to mention that even in terms of the letter dated 14th January, 1993 the minimum qualification for the post of teacher/lecturer laid down by the U.G.C. has been directed to be followed and the said conditions having been accepted by the State of Bihar and the Bihar State Inter University Board on principle, they cannot now take a stand contrary thereto or inconsistent therewith.
These applications are, therefore allowed and the Respondents are hereby directed to consider the applications of only those candidates who have passed the NET examination in. terms of the regulation framed by the University Gants Commission.
It is, however, made clear that it would be open to the Respondents to hold written examination and/or viva voce test also for judging the respective merits of the candidates.
However, in the facts and circumstances, there will be no order as to costs.
S.K. Singh, J.
I agree.