Court No. - 58
Case :- WRIT - A No. - 24317 of 2018
Petitioner :- Ram Krishna Chaturvedi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ramesh Upadhyaya,Rajan Upadhyay
Counsel for Respondent :- C.S.C.,Rohit Pandey
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order dated 30.10.2018, passed by the Director, Higher Education, U.P., whereby the petitioner's claim, for being allowed to officiate on the post of Principal has been rejected on the ground that the qualification for appointment to the post itself was not possessed by him. A further direction is issued to recover the amount which has already been paid to the petitioner for his working on the post of Principal. A previous order dated 19th December, 2014 has also been declared to be null and void.
The order in essence holds the petitioner ineligible to officiate on the post of Principal, as he lacks requisite qualification for appointment to the post and also directs recovery to be made from his salary for the period during which he had worked as officiating Principal. Both parts of the order are assailed and the submission advanced to support it would be taken one by one.
Sri Ramesh Upadhyaya, learned counsel for the petitioner submits that the qualification prescribed under the UGC Regulation would not be relevant nor can be relied upon for holding the petitioner to be ineligible, inasmuch as the UGC Regulation has not yet been adopted formally by the State nor the Statutes of the University have been adequately amended. Learned counsel for the petitioner places reliance upon a judgment of the Apex Court in Kalyani Mathivanan vs. K.V. Jeyaraj and others; (2015) 6 SCC 363 to contend that unless the UGC Regulations are formally adopted by the State and the Statutes are amended, it cannot be applied ipso facto. It is also stated that the petitioner is substantively appointed as an Associate Professor and he possessed requisite qualification for it. It is contended that the post of Principal is a promotional post and the UGC Regulations do not specifically provide for any additional qualification to be possessed while considering the claim of the petitioner for promotion to the post of Principal.
The contention in that regard is seriously resisted by Sri Sri Rohit Pandey, appearing for the University. It is contended that the UGC Regulations, 2010 are binding and once the qualification for appointment to the post of Principal stands specified therein, the petitioner cannot be permitted to act on the post unless he possesses requisite qualification. It is otherwise stated that the UGC Regulations have been adopted by the State vide Government Order dated 30th December, 2010. The judgment of the Apex Court in Kalyani Mathivanan (supra) is sought to be distinguished on the ground that the provision, which was interpreted by the Apex Court, related to appointment on the post of Vice Chancellor in respect of which separate provision existed in the UGC Regulations itself.
Before proceeding further, it would be appropriate to refer to the constitutional scheme relating to maintaining of standards of higher education in the country. Entry 66 of List I of the VII Schedule to the Constitution confers exclusive power in the Union in the matter relating to making of laws regulating the maintenance of standards in institutions for higher education or research and scientific and technical institutions. Entry 66 is reproduced hereunder:
"66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
It may further be noticed that to the extent field is not occupied by the Central Legislation, education, including technical education, medical education and Universities, is also entered in the concurrent list, which is reproduced hereunder:-
"25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."
Admittedly, by exercising powers under Entry 66 the Union Parliament has enacted the UGC Act, 1965. It is in furtherance of such Act that UGC Regulations, (UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHER AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION 2010) have been framed in the year 2010, which lays down the minimum qualification for appointment to different posts in institutions of higher level. Clause 4.2.0 specifies the qualification required for appointment to the post of Principal, which reads as under:-
"4.2.0. PRINCIPAL
i. A Master's degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University.
ii. A Ph.D. Degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance.
iii. Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education.
iv. A minimum score as stipulated in the Academic Performance indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges."
Qualification for appointment to the post of Associate Professor is also specified in Clause 4.3.0, which is distinct from the qualification prescribed for the post of Principal. Similarly, Clause 7.0.0 of the Regulations of 2010 provides for selection of Pro-Vice Chancellor/Vice-Chancellor of University. The qualification of Pro-Vice- Chancellor is specified in Clause 7.1.0, while qualification of Vice-Chancellor is prescribed in Clause 7.3.0 of the Regulations. Clause7.4.0 is also relevant for appreciating the argument advanced on behalf of the petitioner and, therefore, is reproduced:-
"7.4.0 The Universities/State Governments shall modify or amend the relevant Act/Statutes of the Universities concerned within 6 months of adoption of these Regulations.
The argument advanced on behalf of the petitioner with reference to the judgment of the Hon'ble Supreme Court in Kalyani Mathivanan (supra) essentially rests upon Class 7.4.0, which states that the University/State Government shall modify or amend the relevant Act/Statutes of the University within six months of adoption of these Regulations. Two things are clearly established from the provision. Firstly, that the regulations are required to be adopted and then the Statutes or the relevant State Act would have to be amended. It is by relying upon these provisions of the Regulations itself, that the Hon'ble Supreme Court in Kalyani Mathivanan (supra) had proceeded to hold that so long as the qualifications specified are not amended by amending the relevant State Act, the norms laid down in the Regulations of 2010 would ipso facto not apply. The requirement of adoption or amending the Statutes would not be applicable in case of an appointment to the post of Principal or Associate Professor etc., inasmuch as Clause 7.4.0 is not shown to be applicable to other parts of the Regulations of 2010.
It may be noticed that Clause 7.0.0 of the Regulations deal exclusively with the selection of Pro-Vice Chancellor/Vice Chancellor and Clause 7.4.0 occurs in the part exclusively meant for Pro- Vice Chancellor/Vice Chancellor. As against this, the qualification of Principal is prescribed in Clause 4, which regulates direct recruitment and includes Professor in Clause 4.1.0, Principal in Clause 4.2.0 and Associate Professor in Clause 4.3.0. No provision akin to Clause 7.4.0 is shown to exist in Clause 4 of the Regulations of 2010.
Having noticed that Clause 7.4.0 is restricted to Pro-Vice Chancellor/Chancellor alone, the petitioner would not be entitled to draw any benefit from the observations of the Apex Court rendered in the case of Kalyani Mathivanan (supra), inasmuch as the controversy raised therein was entirely distinct and would have no bearing in the facts of the present case.
In the view that this Court takes it is fortified by a previous judgment of the Apex Court in Prof. Yashpal and Another vs. State of Chhattisgarh and Others; (2005) 5 SCC 420. The The Constitutional Scheme has been meticulously noticed by the Apex Court in Prof. Yashpal (supra) to hold that the UGC Regulations would have binding effect by virtue of Entry 66 of List I of the Constitution of India and to the extent the State enactment is in conflict, the State enactment would be invalid. Paragraphs 45 and 46 of the Apex Court judgment in Prof. Yashpal (supra) would be relevant for the present purpose and is reproduced here under:
"45. The State Legislature can make an enactment providing for incorporation of Universities under Entry 32 of List II and also generally for Universities under Entry 25 of List III. The subject "University" as a legislative head must be interpreted in the same manner as it is generally or commonly understood, namely, with proper facilities for teaching of higher level and continuing research activity. An enactment which simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a University so as to take advantage of Section 22 of UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teaching facility for higher studies or facility for research is not contemplated by either of these Entries. Sections 5 and 6 of the impugned enactment are, therefore, wholly ultra vires being a fraud on the Constitution.
46. Entry 66 which deals with co-ordination and determination of standard in institutions for higher education or research and scientific and technical institutions is in Union List and the Parliament alone has the legislative competence to legislate on the said topic. The University Grants Commission Act has been made with reference to Entry 66 (See Prem Chand Jain v. R.K. Chhabra 1984 (2) SCR 883 and Osmania University Teachers Association v. State of Andhra Pradesh 1987 (4) SCC 671). The Act has been enacted to ensure that there is co-ordination and determination of standards in Universities, which are institutions of higher learning, by a body created by the Central Government. It is the duty and responsibility of the University Grants Commission, which is established by Section 4 of the UGC Act, to determine and coordinate the standard of teaching curriculum and also level of examination in various Universities in the country. In order to achieve the aforesaid objectives, the role of UGC comes at the threshold. The course of study, its nature and volume, has to be ascertained and determined before the commencement of academic session. Proper standard of teaching cannot be achieved unless there are adequate infrastructural facilities in the campus like classrooms, libraries, laboratories, well-equipped teaching staff of requisite caliber and a proper student-teacher ratio. For this purpose, the Central Government has made a number of Rules in exercise of powers conferred by Section 25 of UGC Act and the Commission has also made Regulations in exercise of power conferred by Section 26 of the UGC Act and to mention a few, UGC Inspection of Universities Rules, 1960, UGC Regulations 1985 regarding the Minimum Standards of Instructions for the Grant of the First Degree, UGC Regulations, 1991 regarding Minimum Qualifications for Appointment of Teachers in Universities and Colleges, etc. The UGC with the approval of the Central Government and exercising power under Section 22(3) of the UGC Act has issued a schedule of degrees which may be awarded by the Universities. The impugned Act which enables a proposal on paper only to be notified as a University and thereby conferring the power upon such University under Section 22 of the UGC Act to confer degrees has the effect of completely stultifying the functioning of the University Grants Commission in so far as these Universities are concerned. Such incorporation of a University makes it impossible for the UGC to perform its duties and responsibilities of ensuring co-ordination and determination of standards. In absence of any campus and other infrastructural facilities, the UGC cannot take any measures whatsoever to ensure a proper syllabus, level of teaching, standard of examination and evaluation of academic achievement of the students or even to ensure that the students have undergone the course of study for the prescribed period before the degree is awarded to them."
Once it is shown that qualification for appointment to the post of Principal is determined under the UGC Regulations of 2010, the eligibility norms provided therein would have to be fulfilled before a person could claim entitlement for the appointment to the post itself. There would be no distinction permissible on account of mode of appointment, i.e. be it promotion or direct recruitment.
A Larger Bench of this Court in Anand Kumar Yadav and others vs. Union of India and others; 2015(8) ADJ 338 has also been pleased to hold that the qualification laid down by the NCTE would be binding and the mere fact that State enactment or service rules are inconsistent would not be of any consequence. The Full Bench judgment of this Court has been approved by the Apex Court also with dismissal of special leave petition on 25.07.2017.
One of the other grounds, not to enforce the UGC Regulations so far as the appointment to the post of Pro-Vice Chancellor by the Apex Court in Kalyani Mathivanan goes that the Vice Chancellor happens to be an officer and that the UGC Regulations of 2010 do not relate to them.
In view of the discussions held above, I am of the considered opinion that the Director, Higher Education is justified in rejecting petitioner's claim for officiating on the post of Principal once it is found that qualification prescribed under the UGC Regulations of 2010 are not possessed by the petitioner. The challenge laid to the first part of the order, therefore, fails.
Coming to the second aspect, learned counsel for the petitioner submits that there was no misrepresentation made by the petitioner with regard to the qualification possessed by the petitioner and the authorities of the State with their open eyes allowed the petitioner not only to officiate but also released salary to the petitioner of the post itself. It is only by the order impugned that decision has been taken by the authorities of the State to hold the petitioner ineligible to work on the post of Principal. The direction, therefore, issued by the Director to recover the amount is sought to be assailed on the ground that in the facts and circumstances it would be unjust to allow the respondents to recover the difference of salary from the petitioner, particularly when the petitioner has actually worked as Principal. Reliance has been placed upon the judgement of the Apex Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others; (2015) 4 SCC 334 in order to contend that the principles laid down therein could be extended in the facts of the present case also.
The challenge to this part of the order is not seriously opposed, inasmuch as it is not denied that the petitioner was allowed to work as officiating Principal and has also been paid salary for such period.
In view of the fact that no misrepresentation or fraud is alleged and in view of the fact that the petitioner has actually worked as officiating Principal for all such period, this Court finds the order impugned, insofar as it directs recovery to be made from the petitioner, to be unjust and arbitrary. The direction issued in that regard is, accordingly, set aside.
Writ petition stands disposed of accordingly.
Order Date :- 27.11.2018 Pkb/