Manas Dubey (Dr.) and Another vs State of CG and Others

By means of this writ petition, the petitioners have prayed for the following reliefs:-

(i) To issue a writ of mandamus directing the respondents No. 1, 3 and 4 to select the candidates according to the Regulations framed by the respondent University Grant Commission, (ii) To issue a writ declaring the impugned notification dated 8-8-2006 as null and void,

(iii) To direct the respondent No. 1, 3 and 4 to submit a report regarding previous compliance of the Regulations framed by the respondent University Grants Commission within a time bound period disclosing the legality of the appointments made in the institutions,

(iv) To direct the respondents to first consider the candidates who have passed NET / SET examinations and further on non-availability of such candidates the application of other candidates may be considered.

(v) To grant any other relief as may be deemed just and proper under the facts and circumstances of the case.

(vi) To allow the cost and expenses of the petition.

An advertisement to fill up the post in different subjects in the degree colleges was made in the newspapers, however in the same it was specifically mentioned that the selection be made on the basis of merit and according to the normal University Grants Commission. Preference shall be given under:-

Category 1.- NET /SLET examination passed in the concerned subject Category 2. - Ph.D. holder in the concerned subject

Category 3. - M. Phil. In the concerned subject.

It was mentioned in the advertisement that first of all, category 1 candidates will be considered, and if they are not available then category 2 candidates will be considered and in the last, category 3 candidates will be considered. There is no mention in this advertisement that at any point of time, only Post Graduate degree holders will be considered.

The University Grants Commission issued a notification on 4th April, 2000 fixing the norms which were amended by notification dated 14th June, 2006 namely "University Grants Commission (Minimum Qualifications Required For The Appointment And Career Advancement of Teachers in Universities And Institutions Affiliated To It) (Second Amendment) Regulations, 2006. This amendment is relevant for the purpose and the same is quoted as under: -

NOTIFICATION In exercise of powers conferred by clause (e) and (g) of sub -section (I) of Section 26 read with Section 14 of University Grants Commission Act, 1956 (3 of 1956), and in supersession of the Regulations issued under University Grants Commission letter No. E1-93/74 (CPP) Part (v) dated 13th June, 1983, No. F-1-11/87 (CPP - II) dated 19th September, 1991 and No. E1-11/87 (CPP) dated 21st June, 1995 and Notification No. E1-93/74 (CP) dated 19th February, 1985, 26th November, 1985 and No. F.3-1/94 (PS) dated 24th December, 1998. UGC Regulations No. 3-1/2000 (PS) dated 4.4.2000 and No. F-1/2002 (PS) Exemp. dated 31st July 2002 the UGC hereby makes the following Regulations to amend the UGC (Minimum Qualifications Required For The Appointment And Career Advancement Of Teachers in Universities and Institutions affiliated to it), Regulations, 2000, namely

Short title, Application and Commencement:

(i) These regulations may be called UGC (Minimum Qualifications Required For The Appointment And Career Advancement Of Teachers in Universities And Institutions affiliated to it) (Second Amendment), Regulations, 2006.

(ii) They shall apply to every university established or incorporated by or under a Central Act, Provincial Act or State Act, every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the university concerned under Clause (f) of Section 2 of the UGC Act, 1956, and every institution deemed to be a university u/s 3 of the said Act.

(iii) They shall come into force with immediate effect.

In the University Grants Commission (Minimum Qualifications Required For The Appointment And Career Advancement Of Teachers in Universities And Institutions affiliated to it) Regulation, 2000, wherever the following paras occurs: -

"NET" shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidates who have completed M.Phil degree or have submitted Ph.D. thesis in the concerned subject upto 31st December, 1993 are exempted from appearing in the NET examination. Should be substituted with the following para: -

Institutions affiliated to it) Regulation, 2000, wherever the following para occurs: -

"NET" shall remain the compulsory requirement for appointment as Lecturer for those with post graduate degree. However, the candidates having Ph.D. degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phil degree in the concerned subject are exempted from NET for UG level teaching only.

Chhattisgarh State has also enforced the rules namely "Chhattisgarh Higher Education Service Rules, 2002 which came into force on 9th July, 2002. In Rule 5, procedure for appointment has been given and marks allotted according to which merit was given. Besides this, Post Graduation, M.Phil, Ph.D., NET or SLET were allotted separate marks. But later on, vide Notification dated 8th August, 2006, the same was amended and only Post Graduate qualification was deleted and following categories along with merit marks were mentioned:-

Post Graduate degree holder with NET or SET

25 merit marks

Post Graduate and M.Phil degree holders

25 merit marks

Post Graduate, M.Phil and NET /SET holders

30 merit marks

Post Graduate and Ph.D. degree holders

35 merit marks

Post Graduate and Ph.D. and NET SET degree holders OR Post Graduate, M.Phil and Ph.d. with or without NET /SET

40 merit marks

If we compare the UGC norms vide amended notification dated 14th June, 2006, we would see that Ph.D. degree holders were exempted from NET for PG level and UG level teaching and M. Phil. Degree holders were exempted from NET for UG level teaching only, and, in the rules of 2002 also, amendment has been made by the State Government by notification issued in the year 2006. This amendment also did not provide only Post Graduate qualification, therefore, the contention raised by the learned counsel for the petitioners that the State Government is making appointment bye-passing the norms of UGC is not sustainable, however, we feel that the UGC norms cannot be superseded by any subordinate legislation or executive instructions.

In the case of Jatinder Singh Vs. Gurmeet Singh Sidhu and Others, Hob''ble Apex Court had held that clearing of eligibility test viz. NET conducted by UGC or other similar tests as specified in the university circular dated 18-5-1999 was absolutely necessary.

The Hon''ble Supreme Court in the case of Brahmo Samaj Education Society and Others Vs. State of West Bengal and Others, , has held that only a person who has qualified NET or SLET will be eligible for the appointment as Lecturer in an aided institution in view of the Regulations made in this regard by the UGC.

In the case of University of Delhi Vs. Raj Singh and others reported in AIR 1995 Supreme Court 336, a question came up before the Hon''ble Supreme Court as to whether the Delhi University has to comply with the regulations made by the University Grants Commission prescribing the qualifications for the post of Lecturer and the Supreme Court held that the regulations made by the UGC in this regard are not only valid, but mandatory and the Delhi University was obliged under the law to comply with the same.

Hon''ble Supreme Court in the case of University of Delhi (supra) had further held that: -

It is now appropriate to clarify the directions that the Delhi High Court issued in allowing the writ petition. It held that the notification dated 19th September, 1991, by which the said Regulations were'' published, was valid and mandatory and the Delhi University was obliged under the law to comply therewith. The Delhi University was directed to select lecturers for itself and its affiliated and subordinated colleges strictly in accordance with the notification. Put shortly, the Delhi University is mandated to comply with the said Regulations. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said Regulations or it may seek prior approval for the relaxation of this requirement in a specific case; or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC''s approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the U.G.C., forfeit its grand from the U.G.VC. If, however, it did show cause to the satisfaction of the U.G.C., it not only would not forfeit its grant but the appointment made without obtaining the U.G.Cs prior approval would stand regularized. The appointment of the teachers in degree colleges can only be made according to the norms of U.G.C. Since the UGC has exempted Ph.D. and M. Phil degree holders and the State Government has fixed the criteria differently and excluded the Post Graduate degree holders alone, it cannot be said that the rules are contrary to the norms fixed by the U.G.C.

However, in any case, we expect from the State Government that the norms fixed by the UGC shall be strictly followed in making appointment to degree colleges as the effect of the same has been made clear by the notification dated 4th April, 2000 in which following has been mentioned: -

Consequences for failure of universities to comply with recommendations of the Commission as per provisions of Section 14 of the University Grants Commission, 1956. If any university grants affiliation in respect of any course of study to any college referred to in sub - section (5) of Section 12 A in contravention to the provisions of that sub-section or fails within a reasonable time to comply with any recommendations 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 regulations made under clause (e) or clause (g) of subsection (1) of Section 26, the Commissions after taking into consideration the clause, 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. In view of above, though we dismiss the writ petition, but subject to the above observations.

No order as to costs.