Students Federation Of India And Ors vs Union Of India & Ors

S.RAVINDRA BHAT, J.

Facts

The petitioners are aggrieved by the implementation of the University Grants Commission (Minimum Standards and Procedure for Award of

M.Phil./Ph.D. Degrees) Regulations, 2016 (hereafter “the impugned regulationsâ€​) and complain that they are unreasonable and arbitrary and have

the effect of inducing a drastic reduction in M.Phil./Ph.D. seats all over the country, thereby undermining the future of lakhs of students, both in the

reserved and unreserved category. They complain that the third respondent - Jawaharlal Nehru University (“JNU†hereafter) has provided only

102 seats in the M. Phil / PH. D courses in the current academic year i.e. 2017-18 as compared to 970 seats in the previous academic year i.e. 2016-

17.

The brief facts are that the University Grants Commission (“UGC†hereafter) was constituted by virtue of an Act of Parliament in 1956.

Thereafter in 1966, the JNU was set up under a separate Parliamentary enactment. The petition refers to the ninety third constitution amendment,

brought into force with effect from 20th January, 2006, which added the following provision, after Article 15 (4): Â

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the

advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such

special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State,

other than the minority educational institutions referred to in clause (1) of article 30.â€​

The petitioners also allude to the Central Educational Institutions (Reservation In Admission) Act, 2006 (""CEI Act†hereafter) came into force

which provides for the reservation in admission of the students belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward

Classes of citizens, to certain Central Educational Institutions established, maintained or aided by the Central Government, and for matters connected

therewith or incidental thereto. It is pertinent to mention that Section 5 of the Act provides for mandatory increase of seats notwithstanding the

number of annual permitted seats in terms of Section 3 (3) of the CEI Act, for the academic session immediately preceding the date of the coming into

force of the said Act. This, it is said, implied a 54% increase in the number of seats in reference to the number of seats available in 2006. It is

submitted that for academic year (AY) 2008-09, in compliance with Section 5 (of the CEI Act) and having regard to the ruling of the Supreme Court

in the Ashok Kumar Thakur vs. Union of India, (2008) 6 SCC 1, JNU started implementing the reservation policy to admit students of the OBC

(Other backward Classes) in a phased manner. In this background, reference is made to the UGC (Minimum Standards and Procedure for Award of

M.Phil./Ph.D. Degrees) Regulations, 2009 (hereafter “the 2009 regulationsâ€​) brought into force with effect from 1st June, 2009.

It is submitted that in wake of these developments, the Vice Chancellor of the JNU intimated that the impugned regulations, once notified were of

mandatory nature and would be followed. On 4th November 2016, a committee known as the „Nafe committee‟ was constituted by JNU on the

basis of an analysis of the data received from different centres/schools which arrived at the conclusion that there existed discrimination in the

admission process with reference to the viva-voce marks and therefore, recommended that the marks allocation should be revised and limited to only

15% of the total marks (for viva voce) and 85% weightage to be given to written examination. On, 3rd February 2017, JNU released a press note

concerning the minutes of meeting of the standing committee on admissions, which stated that 80% weightage would be given in the written exam and

20% weightage to viva voce for final selection, apart from the suggestion of a phased reduction in intake of students in the wake of the 2016 UGC

Regulations. The Director of Admissions stated that the policy-for admission-would be finalised only after seeking UGC's clarification regarding the

notification.

The petitioners complain that in this background in February 2017, the new impugned admission policy was published on the JNU website, which

provided for the intake of students in terms of the UGC 2016 regulations. It provided for 80% weightage to be given to the written exam and 20%

weightage to viva voce for final selection. It is alleged that this new admission policy neither found mention in the admission prospectus for academic

year 2017-18, nor was available on the JNU website.

The petitioner states that this is a clear ambiguity in the current admission policy of JNU, which is ultra vires the Article 14 of the Constitution and

also regulation 5.5.2 of the UGC Regulations which directs higher educational institutions to notify well in advance, in their website and through

advertisement in at least two newspapers, the number of seats for admission, subject and discipline wise distribution of available seats, criteria for

admission, procedure for admission, examination centers where such tests are to be conducted and all other relevant information. In the background of

these circumstances on 20.03.2017, the admission prospectus for academic year, 2017-18, was published by the JNU in its official website showing

the timeline for filling up and submission of application forms and time schedules for admission. It is alleged that the admission prospectus provides for

just 102 seats for M. Phil/PhD courses as compared with 970 seats in the previous academic session 2016-17.

The petitioner alleges that the UGC 2016 Regulations are unreasonable, arbitrary and unconstitutional for several reasons. It is alleged that these

regulations have the effect of restricting access to entry to higher educational institutions to the general public, which include general category

candidates and specially those belonging to the disadvantaged and reserved category groups for whom special provisions were made under the CEI

Act of 2006, pursuant to the amendment to Article 15 of the Constitution of India. It is highlighted that on account of the massive street cuts in the

intake capacity and no relaxation in the qualifying marks to the reserved category in the written examination those hurt or affected most are the

SC/ST candidates. The petitioners urge that the admission procedure has been reduced to utterly arbitrary process, whereby 100% weightage is given

to viva voce assessment, which has been held as unreasonable consistently by the Supreme Court.

Counsel submitted that the criteria for admission which is reduced to merely a qualifying examination, thus giving hundred percent weightage to viva

voce examination. Thus, these cumulatively result in utter arbitrariness.The petitioners submit that regulation 5.4.1 of the UGC Regulations of 2016

reduce the written examination as a mere qualifying process which means that the candidate whose eligibility on account of passing or clearing the

examination, (for attempting which the candidate must obtain at least 55% marks) would be of no avail. It is submitted that the JNU conducted

qualifying exam places importance to the extent of 50% on research methodology and 50% as subject specific. The score in this exam, which is based

on an objective assessment of the written performance of the candidate in the methodology (of research) and the particular research subject, by the

JNU itself is deemed wholly irrelevant; it merely entitles her to entry for interview She or he would be then considered on entirely on the basis of viva

voce marks.

Learned counsel for the petitioner argued that this stipulation flies on the teeth of the Constitution bench decision in Ajay Hasia v Khalid Mujib 1981

SCR (2) 79, which had held that allocation of more than 15% total marks for oral interview, in an admission procedure, for selection to an educational

institution University or college would be arbitrary and unreasonable. It is further alleged that the decision in Ajay Hasia has here has now become a

part of the jurisprudence that conferring wide     un-canalized and unstructured power, in the hands of a few or only one, who decides the

fate of candidates who are otherwise eligible and competent, since they possess the minimum required to undergo the concerned course, whether M.

Phil PhD, and also fulfill the criteria of having qualified in the written examination, is fraught. It submitted that the lack of or in the absence of any

credit given to the core performance in the written examination â€" which is part of the qualifying process for selection, and the complete and

exclusive weightage given for interview and viva voce is disproportionate and unreasonable.

Learned counsel urged that the manner in which the JNU has sought to implement the UGC Regulations has meant a drastic reduction in the seat

intake in almost every school of study in the university. It is submitted that the new norm whereby professors, associate professors and assistant

professors cannot guide more than a specified number of candidates, has resulted in the current and unique situation whereby the number of seats is

exceeded by 4 to 5 times, by the total faculty membership. It is furthermore submitted that the disproportionately in the number of scholars which

professors were handling or tutoring in the past, needed to be tapered and streamlined over a phased manner rather than reducing the intake

drastically. Learned counsel submitted that the sudden manner of implementation of the UGC regulations, in the pretext of promoting excellence has

meant two things: first, practically no category of candidate belongs to the reserved class can secure admission; and second, the number of seats

available, has gone down. Furthermore, it is submitted that one of the significant fallouts has been that in many faculties, there are hardly any scholars

admitted in the academic year. All these point to utter arbitrariness.

Learned counsel also submitted that whilst it is necessary to ensure excellence and promote standards, at the same time, those in authority cannot

be unmindful of the fact that only those students and scholars who complete their Ph.D. or M Phil., are eligible to teach in higher educational

institutions, such as colleges and universities. Given the proliferation of these colleges, universities and other affiliated institutions, the drastic reduction

in the number of candidates available for teaching would mean that institutions of higher learning would be starved of teaching faculty. It is submitted

that, therefore, applicability of foreign and overseas standards, is not appropriate and the UGC, though under a duty to ensure standards, has to

balance between the standards spelt out in countries with far lesser populations needing to be educated and those in developing nations like India. It is

submitted that as long as the education policy or the policy which promotes higher learning, which means opening of new colleges and an increase in

intake of existing institutions, to cater to the educational needs of the growing population, the policy has to accommodate the entry of meaningful

teaching staff. This is not addressed by merely devising a static statistical formula, but rather by more scientific and in-depth analysis of the causes

that lead to loss of standards.

It is submitted that fixing up of a minimum eligibility criteria as high as 50% vis-a-vis the degree for admission to the M. Phil / Ph. D programme

under Regulation 2 & 3 of UGC Regulations, 2016 and further no relaxation of marks in the ""qualifying exam"" to the candidates of reserved category,

thus keeping them at par with that General Category (i.e. the unreserved category), effectively restricting them at the entry level itself, defeats the

objectives of the 93rd Constitutional Amendment Act, 2006 as well as the CEI Act. Counsel stated that after the 93rd Constitution Amendment Act,

2006 as well as Section 5 the CEI Act, providing for increase in seats for the purpose of implementation of 27% OBC reservations and further

directions given in judgment of the Hon'ble Supreme Court in Ashok Kumar Thakur (supra), JNU started implementing the OBC reservation policy in

a phased manner in the academic year 2008-09. This implied a 54% increase in the number of seats in reference to the number of seats available

in2006. However, with the massive fall in the seats in view of the UGC Regulations 2016, the same runs contrary to reservation policy as envisaged in

the constitution as well as the CEI Act.

It is urged that executive policy matter is amenable to judicial scrutiny and liable to stuck down, it is arbitrary and fails the test of reasonableness,

in violation of Article 14 of the Constitution. Reliance is placed on Union of India and Anr. vs. International Trading Co. & Anr., (2003) 5 SCC 437.It

is argued that in the backdrop of a sudden massive seat cut, a further deviation from the established policy of giving relaxation in marks to ""no

relaxation"" to the reserved categories, by an unprecedented absolute denial of any relaxation in the qualifying exam, for the alleged attainment of

better standards, grossly restricting their access to higher education, and is unreasonable and arbitrary and in violation of Article 14 of the Constitution

of India. Lastly, counsel urged that non-compliance of the “mandatory†requirement of laying of the UGC Regulation, 2016 before both Houses of

Parliament, in terms of Section 28 of the UGC Act, would render the UGC Regulation 2016 null and void, having no effect in law. The power of the

Central Government to make Rules and the UGC to make Regulations by virtue of Section 25 and 26 of the UGC Act, respectively, are followed by

Section 28 which mandates that the Rules and the Regulations shall be laid before Parliament ""as soon as may be"" after it is made and in thirty days.

Reliance is placed on Quarry Owners Association, Etc. v. State of Bihar and Ors. (2000) 8 SCC 655, where the Supreme Court noted that

''requirement of mere placement of the rules or the provisions before the State Legislature is also one of the forms of check on the State Government

to exercise its power as a delegate"". A perusal of Section 28 makes it clear that a docile and perfunctory placement of the Rules and Regulations is

not what is envisaged in the UGC Act and the same are mandatory in nature, empowering the Parliament to either modify it or annul them.

The University Grants Commission (UGC) in its counter affidavit relied upon provisions of University Grants Commission Act, 1956, and highlights

its powers under Section 26 of that Act, which authorizes it to define minimum standard of instructions for grant of any degree by any university

(Section 26(1)(f)). The UGC contends that to maintain the quality and to check the mushrooming of substandard research degree for the first time

2009 Regulations were framed to effectively maintain and streamline the procedure for award of M.Phil and Ph.D degrees; these were notified on

11th July, 2009. The 2009 Regulations apply to Universities and constituent or affiliated colleges of the institution. Clauses 6 and 7 of those

Regulations, empowered universities etc. to spell out the criteria for faculty to be recognised as a research supervisor for M.Phil and Ph.D

programmes; they could also decide on the annual basis, a pre-determined and manageable number of M.Phil and Ph.D students depending on the

number of available eligible faculty supervisor. The 2009 Regulations place a cap that not more than 8 Ph.D. Scholars and 5 M.Phil. Scholars in

respect of each research supervisor. It is stated that 2009 Regulations were superseded by, the impugned 2016 Regulations. The UGC emphasized

that Regulation 6 prescribes the criteria for allocation of Research Supervisor as also a number of Ph.D. and M.Phil. Scholars available for

Supervisor. It is stated that teacher student ratio in India in technical courses is approximately 1:15 and 1:20 in non-technical courses. However,

surprisingly in JNU, the ratio was one supervisor is to for 44 students for M.Phil. and Ph.D. courses much above the norms with some supervisors of

JNU, according to the 2009 and 2016 Regulations. In this context, it is stated a comparison between the students and supervisor ration between Indian

universities and foreign universities such as Cornell University, Harvard University, Caltech University and Yale University is unfavourable inasmuch

as that no faculty can supervise more than three to five at any given point of time. The UGC registered and denied the baseless attack to the

Regulations, especially the Regulation 6 of 2016 Regulation, by the petitioners. It is stated that the Regulations cannot be termed arbitrary. Â

Learned counsel appearing for the UGC relied upon Annamalai University v. Secretary to Government Information and Tourism Department &

Ors., (2009) 4 SCC 590; learned counsel also relies upon a judgment of learned Single Judge in Shubhanshu Singh and Ors. v. JNU delivered in W.P.

(C) No.1557 of 2017 which has not challenged the vires of 2016 Regulations but raised identical issues. It is submitted by the counsel that the 2016

Regulations, accords to weightage at each and every stage for admission process to a candidate on merit and performance. In this context, learned

counsel relied upon the UGC v. Neha Anil Bobde (Gadekar), (2013) 10 SCC 519. In that judgment, the Supreme Court stated very categorically that

any academic matter in the absence of clear violation of the statutory provisions, regulations or notification, the court have to adopt a “hands offâ€

approach leaving such matters to the best judgment of academic experts. It is stated that whether the procedure for admission and the extent of

weightage as well as the criteria with respect to teacher supervisor ratio, are not subject to the scrutiny of the Court since these are left to the best

judgment of the regulating and expert body.

The JNU in its affidavit adopted a line which is identical to that spelt out by the UGC. According to the JNU, the intake in 2016-17 in M.Phil. and

Ph.D. courses was 908 which has now reduced to 102 after the UGC regulations of 2016. It is stated that with respect to pre-Ph.D./Ph.D. courses

the original intake was 37; after merger with Ph.D the total intake is 52. Likewise, for M.Tech/Ph.D the intake was 31 in 2016-17 and now M.Tech

(School of Computer and System Sciences; Computational and Integrative Sciences and Nano Sciences) have become 49. It is stated that PG

Diploma in Big Data Analytics with an intake of 15 also exists. Thus, again a total intake of 970 in M.Phil/Ph.D and the previous year intake scheme

which now conforms to the UGC Regulation, 2016. JNU in its counter affidavit also states as follows:

It is further submitted that the number of teachers eligible to supervise research scholars as the level of M.Phil/Ph.D in the Respondent University

is as follows:

Professor  252

Associate

Professor  118

Assistant Professor 128

Total  498

As per the UGC Regulation, 2016, the maximum limit for each Professor is as follows:

 Ph.D.

Scholars M.Phil Scholars

Professor  8 3

Associate Professor  6 2

Assistant Professor  4 1

As per the above mentioned charts, Respondent University has determined the intake, as per the UGC Regulations, 2016. 47 professors who are

superannuating by December 2018 are not considered for the purpose of calculating the number of vacancies. Similarly, 4 Associate Professors and

11 Assistant Professors, who do not possess Ph.D. degree, are not eligible for supervising Ph.D. scholars. Because the exact number of vacancy will

remain dynamic due to the above reasons. Therefore, number of vacancies announced by the Respondent University was kept tentative.

It is further submitted that Ph.D. is not like classroom teaching programs where one teacher can have more than 4060 students. Presently, many

teachers have a number of M.Phil/Ph.D scholars exceeding the cap prescribed by the UGC Notification 2016. They are also expected to teach in

terms of UGC Regulations in addition to supervision of research scholars. Keeping such a large number of research scholars by teachers in excess of

UGC cap is bound to affect either teaching or research because a highly over-burdened teacher cannot do justice to his main objective of producing

quality students at M.Phil/Ph.D. level by any standards…..â€​ Â

The JNU states that the criteria for admission and the admission procedure are reasonable. It is submitted that at the first level to determine

eligibility, the stipulation of the concern should possess minimum marks (with some concession to SC/ST candidates) followed up with a written

qualifying test which evaluates the student in the particular subject as well in his/her research capabilities is necessary. It is only if the student qualifies

the examination, he or she is called for interview and based upon the power point presentation made in the course of the interaction and assessment

(viva-voce) the decision whether to admit a particular candidate or not admit is taken. Learned counsel emphasizes that unlike in the case of normal

courses such as entry level courses at the under graduate level, those who wish to join M.Phil/Ph.D have to display high degree of not only proficiency

and familiarity in the subject but also the ability to think originally and creatively. Furthermore, learned counsel emphasizes that the viva-voce has to

consider three aspects which are clearly spelt out in Para 5.5 i.e. that the candidate possesses the competence for the proposed research (Para 5.5.1);

that the research work can be suitably undertake by the institution/.college (Para 5.5.2); and lastly that he proposed area of research can contribute to

new/additional knowledge (Para 5.5.3).

Ms.Monika Arora, learned counsel for the JNU submitted that given the compulsion and necessity to take into consideration the broad heads

relevant for each subject, it cannot be said that those who judge the suitability of the candidate, would do so arbitrarily. She also submitted that the

UGC Regulations are mandatory and binding upon all Central Universities including the JNU, therefore, the grievance that the JNU has been

especially in some manner object all adverse decision, cannot be sustained. Â Learned counsel also relies upon a tabular chart, giving the break-up of

the number of supervisors at all level i.e. the Professors, Associate Professors and Assistant Professors and stated that the number of students who

were under the supervision of such academics was excessive and disproportionate to the ability of such senior faculty to give attention in any

meaningful manner for research, ultimately ensure that the standard of research of that kind of JNU could expect from its students and research

scholar. Â Learned counsel also relies upon the decision of the Supreme Court in State of Tamil Nadu v. Adhiyaman Educational Research Institute,

(1995) 4 SCC 104 and submitted that the prescription of standard, is the primary role and duty of the UGC and to the extent that uniformly the UGC

prescribed certain criteria with respect to the procedure for admission as also as regards to the students-supervisor ratio and such standard cannot be

faulted or termed arbitrary. Doing so would mean that the Court is placing itself in the position of regulator or decision maker. Learned counsel also

relies upon the judgment in P.V.Inderesan v. Union of India, (2009) 7 SCC 300, which stated that minimum standard i.e. by way of minimum cut off

marks, in relation to reserved category candidates, linked with the open from the candidate mark per se is not arbitrary or unconstitutional. Analysis

and Conclusions

The petitioners‟ challenge has to be examined at two levels: the alleged unreasonableness in respect of the admission criteria (with the allied

argument that no concession has been provided to SC/ST candidates) and the alleged arbitrariness and unreasonableness with respect to drop in

student intake. The UGC and JNU have clearly spelt out that the criteria are not JNU specific but are universally applied on account of the 2016 UGC

regulations. They also urge that the power to frame regulations has been conferred by statute and the courts should be slow to, if at all intervene in

judicial review in academic matters.

For convenience, it would be relevant to extract the regulations impugned to the extent they are relevant; they are as follows:

“1. Short title, Application and Commencement:

1.1 These Regulations may be called University Grants Commission (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degrees)

Regulations, 2016.

1.2 They shall apply to every University established or incorporated by or under a Central Act, a Provincial Act, or a State Act , every affiliated

college, and every Institution Deemed to be a University under Section 3 of UGC Act, 1956.

1.3 They shall come into force from the date of their publication in the Gazette of India.

Eligibility criteria for admission to the M.Phil. programme:

2.1 Candidates for admission to the M.Phil. programme shall have a Master's degree or a professional degree declared equivalent to the Master’s

degree by the corresponding statutory regulatory body, with at least 55% marks in aggregate or its equivalent grade 'B' in the UGC 7-point scale (or

an equivalent grade in a point scale wherever grading system is followed) or an equivalent degree from a foreign educational Institution accredited by

an Assessment and Accreditation Agency which is approved, recognized or authorized by an authority, established or incorporated under a law in its

home country or any other statutory authority in that country for the purpose of assessing, accrediting or assuring quality and standards of educational

institutions.

2.2 A relaxation of 5% of marks, from 55% to 50%, or an equivalent relaxation of grade, may be allowed for those belonging to SC/ST/OBC(non-

creamy layer)/Differently-Abled and other categories of candidates as per the decision of the Commission from time to time, or for those who had

obtained th September, 1991. The their Master's degree prior to 19 eligibility marks of 55% (or an equivalent grade in a point scale wherever grading

system is followed) and the relaxation of 5% to the categories mentioned above are permissible based only on the qualifying marks without including

the grace mark procedures.

Eligibility criteria for admission to Ph.D. programme: Subject to the conditions stipulated in these Regulations, the following persons are eligible to

seek admission to the Ph.D. programme:

3.1 Master’s Degree holders satisfying the criteria stipulated under Clause 2 above.

3.2 Candidates who have cleared the M.Phil. course work with at least 55% marks in aggregate or its equivalent grade 'B' in the UGC 7-point scale

(or an equivalent grade in a point scale wherever grading system is followed) and successfully completing the M.Phil. Degree shall be eligible to

proceed to do research work leading to the Ph. D. Degree in the same Institution in an integrated programme. A relaxation of 5% of marks, from

55% to 50%, or an equivalent relaxation of grade, may be allowed for those belonging to SC/ST/OBC(non-creamy layer)/differently-abled and other

categories of candidates as per the decision of the Commission from time to time.

Duration of the Programme:

4.1 M.Phil.programme shall be for a minimum duration of two (2) consecutive semesters / one year and a maximum of four (4) consecutive semesters

/ two years.

4.2 Ph.D.programme shall be for a minimum duration of three years, including course work and a maximum of six years.

4.3 Extension beyond the above limits will be governed by the relevant clauses as stipulated in the Statute/Ordinance of the individual Institution

concerned.

4.4 The women candidates and Persons with Disability (more than 40% disability) may be allowed a relaxation of one year for M.Phil and two years

for Ph.D. in the maximum duration. In addition, the women candidates may be provided Maternity Leave/Child Care Leave once in the entire duration

of M.Phil/Ph.D. for up to 240 days.

Procedure for admission:

5.1 All Universities and Institutions Deemed to be Universities shall admit M.Phil/Ph.D. students through an Entrance Test conducted at the level of

Individual University/Institution Deemed to be a University. The University/Institution Deemed to be a University may decide separate terms and

conditions for Ph.D. Entrance Test for those students who qualify UGC-NET (including JRF)/UGC-CSIR NET (including JRF)/SLET/GATE/teacher

fellowship holder or have passed M.Phil programme. Similar approach may be adopted in respect of Entrance Test for M.Phil programme.

5.2 Higher Educational Institutions (HEIs) referred to in sub-clause 1.2 above and Colleges under them which are allowed to conduct M.Phil. and/or

Ph.D. programmes, shall:

5.2.1 decide on an annual basis through their academic bodies a predetermined and manageable number of M.Phil. and/or Ph.D. scholars to be

admitted depending on the number of available Research Supervisors and other academic and physical facilities available, keeping in mind the norms

regarding the scholar- teacher ratio (as indicated in Para 6.5), laboratory, library and such other facilities;

5.2.2 notify well in advance in the institutional website and through advertisement in at least two (2) national newspapers, of which at least one (1)

shall be in the regional language, the number of seats for admission, subject/discipline-wise distribution of available seats, criteria for admission,

procedure for admission, examination centre(s) where entrance test(s) shall be conducted and all other relevant information for the benefit of the

candidates;

5.2.3 adhere to the National/State-level reservation policy, as applicable.

5.3 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 bodies concerned, and taking into account the reservation policy of the Central/State Government from time to time.

5.4 HEIs as mentioned in Clause 1.2 shall admit candidates by a two stage process through:

5.4.1 An Entrance Test shall be qualifying with qualifying marks as 50%. The syllabus of the Entrance Test shall consist of 50% of research

methodology and 50% shall be subject specific. The Entrance Test shall be conducted at the Centre(s) notified in advance (changes of Centres, if any,

also to be notified well in advance) at the level of the individual HEI as mentioned in clause 1.2; and

5.4.2 An interview/viva-voce to be organized by the HEI as mentioned in clause 1.2 when the candidates are required to discuss their research

interest/area through a presentation before a duly constituted Department Research Committee.

5.5 The interview/viva voce shall also consider the following aspects, viz. whether:

5.5.1 the candidate possesses the competence for the proposed research;

5.5.2 the research work can be suitably undertaken at the Institution/College;

5.5.3 the proposed area of research can contribute to new/additional knowledge.

5.6 The University shall maintain the list of all the M.Phil./ Ph.D. registered students on its website on year-wise basis. The list shall include the name

of the registered candidate, topic of his/her research, name of his/her supervisor/co-supervisor, date of enrolment/registration. A person whose M.Phil.

dissertation has been evaluated and the viva voce is pending may be admitted to the Ph.D. programme of the same Institution;

Candidates possessing a Degree considered equivalent to M.Phil. Degree of an Indian Institution, from a Foreign Educational Institution accredited by

an Assessment and Accreditation Agency which is approved, recognized or authorized by an authority, established or incorporated under a law in its

home country or any other statutory authority in that country for the purpose of assessing, accrediting or assuring quality and standards of educational

institutions, shall be eligible for admission to Ph.D. programme.

Allocation of Research Supervisor: Eligibility criteria to be a Research Supervisor, Co- Supervisor, Number of M.Phil./Ph.D. scholars permissible

per Supervisor, etc.

6.1 Any regular Professor of the University/Institution Deemed to be a University/College with at least five research publications in refereed journals

and any regular Associate/Assistant Professor of the university/institution deemed to be a university/college with a Ph.D. degree and at least two

research publications in refereed journals may be recognized as Research Supervisor. Provided that in areas/disciplines where there is no or only a

limited number of refereed journals, the Institution may relax the above condition for recognition of a person as Research Supervisor with reasons

recorded in writing.

6.2 Only a full time regular teacher of the concerned University/Institution Deemed to be a University/College can act as a supervisor. The external

supervisors are not allowed. However, Co- Supervisor can be allowed in inter-disciplinary areas from other departments of the same institute or from

other related institutions with the approval of the Research Advisory Committee.

6.3 The allocation of Research Supervisor for a selected research scholar shall be decided by the Department concerned depending on the number of

scholars per Research Supervisor, the available specialization among the Supervisors and research interests of the scholars as indicated by them at the

time of interview/viva voce.

6.4 In case of topics which are of inter-disciplinary nature where the Department concerned feels that the expertise in the Department has to be

supplemented from outside, the Department may appoint a Research Supervisor from the Department itself, who shall be known as the Research

Supervisor, and a Co-Supervisor from outside the Department/ Faculty/College/Institution on such terms and conditions as may be specified and

agreed upon by the consenting Institutions/Colleges.

6.5 A Research Supervisor/Co-supervisor who is a Professor, at any given point of time, cannot guide more than three (3)M.Phil. and Eight (8) Ph.D.

scholars. An Associate Professor as Research Supervisor can guide up to a maximum of two (2) M.Phil. and six (6) Ph.D. scholars and an Assistant

Professor as Research Supervisor can guide up to a maximum of one (1) M.Phil. and four (4) Ph.D. scholars.

6.6 In case of relocation of an M.Phil/Ph.D. woman scholar due to marriage or otherwise, the research data shall be allowed to be transferred to the

University to which the scholar intends to relocate provided all the other conditions in these regulations are followed in letter and spirit and the

research work does not pertain o the project secured by the parent institution/ supervisor from any funding agency. The scholar will however give due

credit to the parent guide and the institution for the part of research already done.â€​

It is evident that Higher Educational Institutions („HEIs‟ hereafter) covered by the regulations are to apply to them (by virtue of Regulation 5.3)

for admission. Admission is by a two-stage process, wherein first the candidate has to qualify (secure at least 50%) in a written test that evaluates her

knowledge and aptitude by testing research method and knowledge in the subject (both of equal value 50% each). The candidate is declared

successful entirely based on the performance in viva voce. Here again, the interview board or selection board is not obliged to indicate any sub division

towards knowledge of the candidate, her aptitude, ability to communicate, evaluate the power point presentation, etc. Nor are the marks scored by the

candidate in the written exam given any weightage.

No doubt, a number of Supreme Court judgments have emphasized on a generally deferential judicial review standard with respect to academic

standards and issues concerning academic excellence. Yet, the court has also emphasized that in all matters where bodies: technical or expert

statutory bodies, exercise delegated legislative power, the rules or regulations so framed do not enjoy the same level of protection as in the case of

Parliamentary legislation. The courts have repeatedly stressed that if the regulations are shown to be plainly or manifestly arbitrary or unreasonable,

they would be declared so. Thus, in Sharma Transport v Govt. of Andhra Pradesh, (2002) 2 SCC 188, the Supreme Court held:

“… The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated

legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not

reasonable and manifestly arbitrary. The expression ""arbitrarily"" means: in an unreasonable manner, as fixed or done capriciously or at pleasure,

without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending

on the will alone. …â€​

Earlier, in Indian Express Newspaper (Bombay) Pvt. Ltd. v Union of India, AIR 1986 SC 515 it was held that:

“In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the

vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the

statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in

conformity with the statute or that it offends Article 14 of the Constitution.â€​

Later, in Khoday Distilleries Ltd. v State of Karnataka, (1995) 1 SCC 574, the Supreme Court stated as follows:

“…there is nothing in this provision which makes it imperative to impose the restrictions in question only by a law enacted by the legislature. Hence

the restrictions in question can also be imposed by any subordinate legislation so long as such legislation is not violative of any provisions of the

Constitution. This is apart from the fact that the trade or business in potable liquor is a trade or business in res extra commercium and hence can be

regulated and restricted even by executive order provided it is issued by the Governor of the State. We, therefore, answer the question accordingly.â€​

 In State of UP v Renusagar Power Co, (1988) 4 SCC 59, the court ruled as follows:

The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of

the power is manifestly arbitrary.

Similarly, if the power has been exercised on a non-consideration or non-application of mind to relevant factors the exercise of power will be regarded

as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the oasis of facts which do not exist and which are patently

erroneous, such exercise of power will stand vitiated"".

In the present case, the first issue is whether the grant of marks or 100% weightage to viva voce performance as the sole basis for selection to

M.Phil./Ph.D seats is valid or is it arbitrary. Ajay Hasia (supra), the Supreme Court had dealt with the proportion of marks given for declaring a

candidate successful in an admission process, and held as follows:

“The marks allocated for the oral interview were 50 as against 100 allocated for the written test, so that the marks allocated for the oral interview

came to 33 1/3% of the total number of marks taken into account for the purpose of making the selection. This, contended the petitioners, was beyond

all reasonable proportion and rendered the selection of the candidates arbitrary and violative of the equality clause of the Constitution. Now there can

be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly

when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for

the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness. It

may be pointed out that even in Peeriakaruppan's case (supra), where 75 marks out of a total of 275 marks were allocated for the oral interview, this

Court observed that the marks allocated for interview were on the high-side. This Court also observed in Miss Nishi Maghu's case (supra): ""Reserving

50 marks for interview out of a total of 150... does seem excessive, especially when the time spent was not more than 4 minutes on each candidate"".

There can be no doubt that allocating 33 1/3 of the total marks for oral interview is plainly arbitrary and unreasonable. It is significant to note that even

for selection of candidates for the Indian Administrative Service, the Indian Foreign Service and the Indian Police Service, where the personality of

the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are

250 as against 1800 marks for the written examination, constituting only 12.2% of the total marks taken into consideration for the purpose of making

the selection. We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the

admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained.â€​

In Nishi Maghu and Ors. v. State of J & K and Ors., (1980) 4 SCC 95 the Court held that 50% marks out of total 150 marks allotted for interview

were excessive. In Lila Dhar v. State of Rajasthan and Ors., 1981 AIR 1777, it was held as follows:

 “In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal

qualities for which greater importance may have to be attached in later life, greater weight has perforce to be given to performance in the written

examination. The importance to be attached to the interview-test must be minimal. Therefore, the ratio of the decisions in Minor A. Peeriakaruppan

etc. v. State of Tamil Nadu and Ors. [1971] 2 SCR 430 and Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. (1981). I LLJ 103 (SC) , in this

regard, cannot be applied in case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may

be the only way subject to basic and essential academic and professional requirements being satisfied.â€​

The distinction between admission (to a course in an academic institution) and appointment to a service or post was highlighted in Kiran Gupta and

Ors. vs. State of U.P. & Ors., 2000 (7) SCC 719, when it was emphasized that for admission to an academic course, selection based on a high

interview or viva voce marks or exclusively based on interview would be arbitrary and that the position might be different in the case of recruitment to

posts, especially higher posts, where the process might be only interview:

 “It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on

several factors and the question of permissible percentage of marks for an interview test has to be decided on the facts of each case. However, the

decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/

schools will not afford a proper guidance in determining the permissible percentage of marks for interview in cases of selection/ appointment to the

posts in various services. Even in this class, there may be two categories: (i) when the selection is by both a written test and viva voce; and (ii) by viva

voce alone. The courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview

and a written test. But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior positions the

question of higher percentage of marks for interview does not arise.â€​

In Ms. Anvita Singh v. Union of India, 2012 (129) DRJ 28, a Division Bench of this court held as follows:

“18. There cannot be any quarrel about the principles of law which can be culled out from the judgments cited by the learned counsel for both the

parties as they are crystalised and firmly established in those judgments. What is to be seen in all these judgments is that while examining the rule

giving weightage to the interview viva voce marks, the courts have made distinction between those cases which pertain to admission to educational

institutions from the cases which deal with the appointment to a post. When it comes to admission in academic courses in educational institutions, the

law laid down by the Apex Court in Ajay Hasia (supra) is restricting the marks of viva voce has been consistently followed and the principle which is

laid down is that in such cases, normally the weightage to be given to the viva voce marks should normally be 15 per cent and should not be in any

case not more than 15 to 20 per cent. However, when it comes to admission, the higher degree courses, little higher percentage of marks is permitted.

On the other hand, when it comes to appointment to a WP(C) No.4376/2011 Page 20 post in service, large interplay in the interview/viva voce marks

is held permissible. In such cases, how much weightage is to be given to the interview marks depends upon the nature of post to which the

appointment is made. In Ashok Kumar Yadav (supra), which was a case of ex- servicemen officer, 25 per cent marks allotted for interview was held

to be justified. On the other hand, when it comes to appointment to a post which is of high ranking and/or is of the nature where personal tests are also

important which can be judged only in viva voce test, not only a very high percentage assigned to the interview is upheld, even when selection to such

post is solely on the basis of interview, even that is held to be permissible. This was so highlighted by the Supreme Court in K.H. Siraj (supra). In the

cases of selection for entry into public service or such post, the object is to secure the post and most suitable person for the job avoiding patronage and

favouritism.â€​

The courts have also held that not indicating the minimum qualifying marks, especially in an interview or viva voce process, amounts to permitting

the selection board to evolve its own criteria, without publishing it previously. This too has been held illegal. In Ramesh Kumar v. High Court of Delhi

& Anr., AIR 2010 SC 3714, it was held as follows:

“11. In Shri Durgacharan Misra v. State of Orissa and Ors. AIR 1987 SC 2267, this Court considered the Orissa Judicial Service Rules which did

not provide for prescribing the minimum cut-off marks in interview for the purpose of selection. This Court held that in absence of the enabling

provision for fixation of minimum marks in interview would amount to amending the Rules itself. While deciding the said case, the Court placed

reliance upon its earlier judgments in B.S. Yadav and Ors. v. State of Haryana and Ors. AIR 1981 SC 561, P.K. Ramachandra Iyer and Ors. v.

Union of India and Ors AIR 1984 SC 541 and Umesh Chandra Shukla v. Union of India and Ors. AIR 1985 SC 1351 wherein it had been held that

there was no ""inherent jurisdiction"" of the Selection Committee/Authority to lay down such norms for selection in addition to the procedure prescribed

by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e. ""inherent jurisdiction"" is claimed, it has to

be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the Rules is likely to cause irreparable and

irreversible harm.

Similarly, in K. Manjusree v. State of A.P. AIR 2008 SC 1470, this Court held that selection criteria has to be adopted and declared at the time of

commencement of the recruitment process. The rules of the game cannot be changed after the game is over. The competent authority, if the statutory

rules do not restrain, is fully competent to prescribe the minimum qualifying marks for written examination as well as for interview. But such

prescription must be done at the time of initiation of selection process. Change of criteria of selection in the midst of selection process is not

permissible.

Thus, the law on the issue can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be

given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority

while laying down the norms for selection may prescribe for the tests and further specify the minimum benchmarks for written test as well as for viva

voce.â€​

To summarize: the earmarking or allocation of a high percentage of marks in an admission process has been consistently held to be arbitrary by the

courts; however, where the process involves selection to a post or service, higher weightage for entry or lower levels of service is seen to be arbitrary,

whereas for appointment or promotion to senior and higher levels, higher percentage, or even 100% weightage is permissible.

In the present case, the M.Phil./Ph.D. aspirants are not desirous of joining any service under the University or the government; nor are do they

aspire to join any public service. The evaluation under the guidelines pure and simple is for assessment of their potential, aptitude, knowledge and

ability in the research topic or subject. They are made to clear a qualifyingexamination, the results of which are entirely based on the

objectiveassessment of their worth, in all relevant parameters. Having so cleared (without being aware of what are the marks in such written exam-

which can be as high as 90%), the candidate is evaluated by a panel. Members of this panel are allowed the widest discretion; no separate marking or

evaluation by each appears to be mandated; (no weightage is given to marks in thewritten test). Whereas one- of the panel, may be objective, the

others might give full reign to their prejudices, - regional, caste, sectarian or as to all those extraneous factors which are proscribed as arbitrary.

Absolutely noweightage to the performance in the written examination, conducted by theUniversity is given.

In the opinion of this court, the entire weightage to performance of a candidate in the interview, or viva voce, based on the evaluation of the

“power point†presentation affords the widest latitude to arbitrary and capricious behaviour of the members of the board, who know that the fate

of admission hangs in their hands. Discretion, wherever allowed, is to be minimized; more so when it concerns admission to academic institutions.

Academics are no doubt brilliant in their fields; however they are not immune to baser tendencies, such as unconscious bias (subject matter,

mannerisms, perceived lack of respect, etc). This can tend to cloud their wisdom and conferring the exclusive power to admit a student at

M.Phil./Ph.D. levels would therefore be arbitrary. Therefore, para 5.4 of the impugned regulations are held to be arbitrary.

As far as the second grievance with respect to absence of any concession to reserved category candidates â€" SC/ST/OBC in the qualifying

examination goes, this Court notices that the eligibility criteria lowers the acceptable minimum from 55% in the case of M.Phil./Ph.D. aspirants

respectively, the concession is to the extent of 5% inasmuch as certain reserved category candidates can compete in the qualifying examination

though they possess lower than the minimum cut-off of 55%. There are observations in Dr. Preeti Srivastava v. State of M.P., (1999) 7 SCC 120;

equally, the judgment of the Supreme Court in P.V. Inderesan (supra) â€" both being Constitution Bench rulings â€" have indicated that in respect of

higher courses too, a certain element of concession is permissible, to reserved category candidates. In Preeti Srivastava (supra) the Constitution

Bench held as follows:

“Consequently, it cannot be said that even though short-listing of eligible candidates is permissible to the State authorities, while doing so, the State

authorities can completely give a goby to the concept of merit and can go to the extent of totally dispensing with qualifying marks for SC,ST and OBC

candidates and can short-list them for being considered for admission to reserved categories of seats for them in postgraduate studies by reducing the

qualifying marks to even zero. That was rightly frowned upon by this court in Sadhana Devis case (supra) as that would not amount to short-listing but

on the contrary would amount to completely long listing of such reserved category candidates for the vacancies which are reserved for them and on

which they would not be entitled to be admitted if they did not qualify according to even reduced bench marks or qualifying marks fixed for them. As

seen earlier, keeping in view the ratio of the Constitution bench of this court in M.R. Balajis case (supra) it must be held that along with the

permissible reservation of 50% of seats for reserved category of candidates in institutions imparting postgraduate studies, simultaneously if further

concessions by way of facilities are to be given for such reserved category of candidates so as to enable them to effectively occupy the seats

reserved for them, such concessions by way of dilution of qualifying marks to be obtained at the entrance test for the purpose of short-listing, can also

not go beyond the permissible limits of 50% of the qualifying marks uniformly fixed for other candidates belonging to general category and who appear

at the same competitive test along with the reserved category of candidates. It is found from the records of these cases that qualifying marks at the

entrance test for general category of candidates are fixed at 50%. In fact such is the general standard of qualifying marks suggested by the Medical

Council of India even at the stage of entrance examination to MBBS course which is at the gross-root level of medical education after a student has

completed his secondary education. Thus it would be proper to proceed on the basis that minimum qualifying marks for clearing the entrance test by

way of shortlisting for getting admitted to postgraduate medical courses uniformly for all candidates who appear at such examination should be 50%

but so far as reserved category of candidates are concerned who are otherwise eligible for competing for seats in the postgraduate medical courses,

50% reduction at the highest of the general bench marks by way of permissible concession would enable the State authorities to reduce the qualifying

marks for passing such entrance examination up to 50% of 50% i.e. 25%. In other words, if qualifying marks for passing the entrance examination for

being admitted to postgraduate medical courses is 50% for a general category candidate, then such qualifying marks by way of concession can be

reduced for reserved category candidates to 25% which would be the maximum permissible limit of reduction or deviation from the general bench

marks. Meaning thereby, that a reserved category candidate even if gets 25% of the marks at such a common entrance test he can be considered for

being admitted to the reserved vacancy for which he is otherwise eligible. But below 25% of bench marks for reserved category of candidates, no

further dilution can be permitted.â€​

P.V. Inderesan (supra) was a decision rendered specifically on the issue of whether cut-off marks for selection having reference to the general

category candidates‟ last cut-off of marks, is permissible. The court ruled that if such a criteria is made known in advance and actually used, it would

not be disturbed. However, it was emphasized that such minimum “cut off marks†prescribed, benchmarking the performance with the last open

or general category candidate should not result in any reserved seat going vacant. The materials placed on record as well as the pleadings of both the

JNU and UGC do not anywhere show that an expert Committee had determined whether the change in the criteria, could impact reserved category

candidates adversely. No doubt, the M.Phil and Ph.D. courses lead to acquisition of superior academic qualifications. The general clubbing of

reserved category candidates with merited candidates â€" both of whom are deemed eligible depending on the eligibility criteria (for qualifying in the

written exam), can act to the disadvantage of reserved category candidates if the same criteria of qualification (50%) is admitted. Admittedly, a

number of reserved seats have been kept apart to be filled by the reserved category candidates. Given the pattern of admission and the procedure

adopted where 100% or entire weightage is given to the interview process, the possibility of bias and also adverse impact to SC/ST and other reserved

category candidates is palpable and real. Having regard to these facts, the Court is of the opinion that the JNU and UGC ought to have worked out a

criteria to give some concession to SC/ST category candidates â€" and to the extent permissible under the Rules, to the OBC category candidates.

The same considerations would also apply to persons with disabilities (PWD) candidates for whom a 5% reservation is statutorily mandated.

As far as the last ground with respect to the drastic reduction in the student intake is concerned, JNU had contendedâ€" in support of its

contention that the regulations are valid, the total faculty strength in the Ph.D. seats with respect to the UGC Regulations, 2016, would be 3604 as

against which the Ph.D. students enrolled were 3525. According to the JNU, the total intake of 2018-19 was 342 and as on 30.04.2018, the total

number of vacancies in the PhD course was 79. Likewise, the total number of vacant M.Phil. seats were 368. In the submissions made on behalf of

the JNU â€" on 08.05.2018 â€" it was contended that after implementation of the regulations, the total faculty strength of 498 supervisors was found

(252 Professors, 118 Associate Professors and 128 Assistant Professors). These could cater to 1120 M.Phil. and 3236 PhD scholars in terms of

clause 6.5 of the regulations. The JNU contended that the total number of M.Phil. students was 899 and there were total 2880 Ph.D. students. These

statistics only go to show that despite the approved capacity of 3236 Ph.D. scholars and 1120 M.Phil. seats, 657seats went unfilled. In these

circumstances, the assertion that there was no “seat cut†cannot be taken at face value. It thus appears to the Court that 657 seats (221 M.Phil.

and 436 Ph.D.) vacancies existed. Clearly these were unfilled despite existence of capacity in the JNU.

It appears to the Court that the regulations with respect to the fixation of a cap on a number of students that the faculty at the level of Professor,

Associate Professor and Assistant Professor can supervise, at any given point of time, cannot be a matter of judicial review. That remains within the

expertise of regulatory bodies such as UGC. The petitioner‟s argument with respect to arbitrariness in regard to the guidelines with respect to the

supervisor-student ratio cannot, therefore, be upheld. However, clearly, the JNU, in implementing the UGC Regulations, 2016 has either deliberately or

on account of wrong implementation, left unfilled a substantial number of (about 657 M.Phil. and Ph.D. seats). In the opinion of this Court, this is not

healthy; it amounts to a national waste and requires to be redressed appropriately.

In view of the foregoing discussion, this Court holds as follows:

(1) That Regulation 5.4 of the UGC Regulations in so far as it permits filling of M.Phil./Ph.D. entirely on the basis of cent percent evaluation of

performance in the viva voce process is arbitrary. The said regulation is, therefore, declared void and contrary to Article 14;

(2) The absence of any concession with respect to the minimum qualifying marks in the written test, in the UGC Regulations of 2016 to reserved

category candidates (SC/ST/OBC) and physically disabled candidates is also without proper application of mind. Appropriate concession is to be given

by the UGC and the JNU, taking into account the seats filled, having regard to the implementation of the regulations in the last two academic years;

(3) The JNU is directed to take suitable review action to ensure that in any given academic year, no M.Phil./Ph.D. seat is left unfilled. It is also held

that the UGC guidelines of 2016 in so far as they prescribe the supervisorresearcher/student ratio is valid.

The writ petitions are partly allowed in the above terms. There shall be no order on costs.