Hon'ble Mrs. Vijay Lakshmi, J.
In response to the Banaras Hindu University (hereinafter referred to as the 'University') having issued a Bulletin inviting applications for admission to Ph.D. and M.Phil programme through Research Entrance Test (RET) and direct admission (RET Exempted) in various disciplines including Performing Arts for registration in September, 2012 and March, 2013 session, the appellant-petitioner, who had passed M.Phil in Musicology from the University, applied for admission in two disciplines, namely Vocal (RET Exempted Category) and Musicology (RET Category). The admitted case of the appellant is that he was selected to be given admission as a Ph.D. student in Vocal Music (RET Exempted Category) but still was not registered for Ph.D. Such decision was communicated to the appellant by the University on 23.1.2013.
Challenging the same, the appellant filed a writ petition no. 30347 of 2013, which was disposed of on 28.5.2013 with the direction to the Vice Chancellor of the Banaras Hindu University to decide the representation of the petitioner in this regard, by speaking and reasoned order. Pursuant thereto, when representation was not decided, the appellant-petitioner filed a contempt petition and thereafter by the order dated 13th/14th, August, 2013, the representation of the appellant-petitioner was rejected with the following directions:-
"WHEREAS the Dean, Faculty of the forming Arts has informed that said Shri Pandey failed to identify a mutually agreeable supervisor from the Department of Vocal Music (where he appeared in Test C prior commencement of any of the two terms of registration (September12 and March 13) during the academic session 2012-13 and thus he missed the opportunity of registration for Ph.D. against his/her application under RET 2012 in accordance with the provisions of the Ordinances explicitly laid in the RET 2012 information Bulletin.
WHEREAS on consideration of the representation dated 08th June 2013 of said Shri Vineet Ashish Pandey in the light of provisions contained in the Ph.D. Ordinances of the University and the RET 2012 Information Bulletin, the Vice-Chancellor, Banaras Hindu University vide his orders dated 08.08.2013 disposed of the representation with the observation that it has no merit as no mutually agreeable supervisor could be found for the candidate which is one of the conditions for Ph.D. registration in the University."
Challenging the same, the appellant-petitioner filed a writ petition no. 49436 of 2013 with the prayer for quashing the orders dated 23.1.2013 and 13th/14th, August, 2013 passed by the respondent-University. It was also prayed that Clause U.2.2 (g) of the Information Bulletin for admission in Ph.D. and M.Phil programmes issued by the University, be declared ultra vires the UGC Regulations and the respondent-University, be directed to provide Supervisor/Co-supervisor to the petitioner and register the petitioner to Ph.D. course in Vocal Music for the year 2012-13.
The said writ petition has been dismissed by judgement and order dated 6.12.2013, primarily on the ground that it is wrong to say that no assistance was given to the petitioner by the University for identifying a mutually agreeable Supervisor and also after holding that Clause U.2.2 (g) of the Information Bulletin is not contrary to Regulation 12 of the Regulations framed by the University Grants Commission (hereinafter referred to as the 'UGC'). Aggrieved by the said judgement, this intra court appeal has been filed.
We have heard Sri Chandan Sharma, learned counsel for the appellant as well as Sri Ajit Kumar Singh, learned counsel appearing for the respondents-University and have perused the record. Pleadings between the contesting parties have been exchanged and with their consent, this appeal is being disposed of finally at this stage.
The submission of the learned counsel for the appellant primarily is that once a Ph.D. student has been chosen for admission, then admission cannot be denied to such student merely on the ground that he is unable to choose the Supervisor. Clause U.2.2 of the Information Bulletin issued by the University deals with the allotment of Ph.D. Supervisor. The same provides for the University to facilitate the students in identifying a suitable match between the selected candidates and the Ph.D. Supervisor. However, sub-clause (g) of the said Clause U.2.2 categorically states that in case a candidate fails to identify a mutually agreeable supervisor during the academic session 2012-13, he/she shall forfeit the opportunity of registration for Ph.D. against his/her application under RET-2012. It is submitted that the said provision in the Information Bulletin is contrary to the provisions made in Regulation 12 of the UGC (Minimum Qualification Required For The Appointment And Career Advancement Of Teachers In Universities And Institutions Affiliated to it.) (3rd Amendment), Regulation 2009, wherein it is categorically provided that allotment/allocation of Supervisor shall not be left to the individual student or teacher. It has thus been submitted that Clause U.2.2 (g) of the Information Bulletin is ultra vires the Regulations of 2009 framed by the UGC.
On the other hand, Sri Ajit Kumar Singh, learned counsel appearing for the respondents-University has submitted that the Bulletin issued for the RET-2012 admission to the Ph.D. Programme and M.Phil, clearly provides that the eligibility requirements for the purpose of admission shall be only those which are mentioned in the Information Bulletin of the academic session concerned and that all Ph.D. Scholars shall be governed by the Ph.D. Ordinances and that the candidate shall be bound by BHU Statutes/Ordinances/Rules and Regulations framed from time to time. It has been contended that once the appellant-petitioner has appeared in the admission process in terms of the Bulletin for admission to RET-2012 and having not been found entitled to the Ph.D. admission on the ground that he has not been able to identify a mutually agreeable Supervisor as required under Clause U.2.2 (g) of the Information Bulletin, he cannot now turn around and raise a grievance that he cannot be denied admission as the said provision under the Ordinances is contrary to Regulation 12 of the UGC Regulation 2009. In support of his submission, Sri Ajit Kumar Singh, learned counsel for the respondents-University has placed reliance on a decision of the Apex Court in the case of Union of India vs. N. Chandrasekharan, SCC 1998 (3) 694.
It is submitted that provision to require the student to choose the Supervisor and be given admission only after the Supervisor gives his consent was incorporated after due deliberations of the Expert Committee, which passed a resolution in its meeting dated 7th/10th, January, 2012 and the recommendation made by the Academic Council as well as the Executive Council of the University. It is further submitted by the learned counsel for the respondents-University that the requirement in the Regulation 12 of the UGC Regulation, 2009 is only regarding allocation of Supervisor to the extent that the same shall be decided by the Department in a formal manner depending on the Student/Supervisor ratio and the allotment/allocation shall not be left to the individual student or teacher. According to the respondents, the same would not mean that a Supervisor can be imposed on a student or a student can be compelled to work under a particular Supervisor.
Sri Ajit Kumar Singh, learned counsel for the respondents-University thus submits that providing for a higher requirement in the Ordinances of the University to the effect that the student will be obliged to take the consent of the Supervisor before being granted admission to the course, would not be contrary to or against the provisions of the Regulation framed by the UGC. In support of his submission, he has placed reliance on a decision of the Apex Court in the case of State of Karnataka vs. Chamundeswari Sugar Limited, passed in Civil Appeal No. 4934 of 2006 decided on 8.4.2008. Sri Ajit Kumar Singh has thus submitted that denial of admission to the petitioner on the ground that he could not identify a mutually agreeable Supervisor and has thus forfeited his right of registration for Ph.D. for Vocal Music in RET-2012 session, is fully justified.
We have carefully considered the rival submissions of learned counsel for the parties and have perused the record.
For proper appreciation of the dispute involved in the present appeal, the relevant provision of U.2.2 of the Information Bulletin is reproduced below:-
"U.2.2) Allotment of Ph.D. Supervisor
a) The Head/Coordinator of the Department/School/Centre will provide a list of teachers together with their research areas to the RET and RET- exempted selected candidates and advise them to interact with potential Supervisors in the discipline and submit letter of consent of the identified Supervisor to the DRC/ SRC/CRC within one week.
b) As many RET-exempt candidates who qualified after the Test C can be admitted to Ph.D. in the discipline if Supervisors are available/agreeable. For those qualifying under the RET category, the maximum number will ordinarily be restricted to the number of vacancies announced in the RET bulletin.
c) If required, DRC/ SRC/CRC should help in identifying a suitable "match" between the selected candidate and Ph.D. Supervisor (and Co-Supervisor/s, if required.
d) The DRC would formally allot a Ph.D. Supervisor (and Co-Supervisor/s, if required) for the selected candidates keeping in view the mutual consent and the facilities available with the Supervisor for undertaking the proposed research topic.
e) Those of the RET candidates who obtained a composite merit index of 75 and above, but could not register in the July/ Sept term, may be considered, subject to availability of vacancy, in the next Jan/March term. However, they will have to appear at the Test C again.
f) Candidates under the RET-exempt category, who could not be admitted in July/September term may be considered along with those who apply in response to the notification for admission in the January/March term and will be evaluated through Test C and admitted, if selected, as above.
g) In case a candidate fails to identify a mutually agreeable supervisor prior to commencement of any of the two terms of registration(September12 and March 13) during the academic session 2012-13, he / she shall forfeit the opportunity of registration for Ph.D. against his/her application under RET 2012."
(emphasis supplied) The relevant portion of the RET-2012 Bulletin for admission in Ph.D. programme and M.Phil on which reliance has been placed by the respondents-University is reproduced below:-
"F. GENERAL NOTES:
(i) Notwithstanding anything contained in the Ordinances, the eligibility requirements for the purpose of admission shall be only those which are mentioned in the Information Bulletin of the academic session concerned.
(ii) All Ph.D. Scholars shall be governed by the Ph.D. Ordinances.
(iii) The candidate shall be bound by BHU Statutes/Ordinances/Rules and Regulations framed from time to time."
Regulation 12 of the University Grants Commission (Minimum Standards And Procedure For Awards Of M.Phil/Ph.D. Degree), Regulation, 2009 is quoted below:-
"Allocation of Supervisor
12. The allocation of the supervisor for a selected student shall be decided by the department in a formal manner depending on the number of student per faculty member, the available specialization among the faculty supervisors, and the research interest of the student as indicated during interview by the student. The allotment/allocation of supervisor shall not be left to the individual student or teacher."
(emphasis supplied) Before considering the aspect relating to the legality of the provisions contained in Clause U.2.2 (g) of the Information Bulletin, we would also like to consider the compliance of provisions of Clause U.2.2 (c) of the said Information Bulletin. The categorical case of the appellant has been that the University did not help the appellant in identifying a suitable match of a Supervisor of the course for which he had been selected. The University has, in para 17 of the counter affidavit filed in the writ petition, merely stated that "all the eligible candidates were provided the list of supervisors in the Department of Vocal Music and full liberty to interact with them. However, neither the candidate nor the DRC could identify a Supervisor agreeable to supervise the Ph.D. programme of the petitioner." This is in response to the specific averments made by the appellant-petitioner in para 27 of the writ petition that he was not provided with any assistance in identifying the suitable match between candidates and the Ph.D. Supervisor as required under sub-clause (c) of Clause U.2.2 of the Information Bulletin.
The writ court has brushed aside the said contention of the petitioner by merely stating that there is no reason to doubt the statement made by the University in this regard.
In our view, when a specific averment had been made by the appellant-petitioner in the writ petition, the University could not have vaguely replied that the list of supervisors, or assistance, was given. No such communication providing the list was filed by the respondents-University. Even the date of such communication was not mentioned. When a party makes a certain averment, which can only be contradicted or proved by the respondents in its reply, it is a duty of the respondents to give a specific reply. It was not possible for the appellant-petitioner to prove something in the negative, that is, when he was not provided the list, or assistance, by the University. If something positive was done by the University, it was for the University to produce such documents to contradict the averment made by the appellant-petitioner. In not having done so, the conclusion, which the Court would normally arrive, is that the fault lies with the University. As such, in our view the conclusion drawn by the learned Single Judge in the impugned order to the effect that the assistance was given by the respondents-University for identifying a suitable match of Ph.D. supervisor, cannot be justified in the facts of the present case.
As regards the other question, which is that the provisions of Clause U.2.2 (g) of the Information Bulletin is contrary to Regulation 12 of the UGC Regulation 2009, what is to be first considered by this Court is as to whether the said Regulations framed by the UGC would have binding effect on the University or not.
The said Regulations have been framed by the UGC under Section 26 of the University Grants Commission Act 1956, which have been duly approved by both the houses of Parliament as required under Section 28 of the said Act. Clause (g) of Section 26, under which the said Regulations have been framed, provides for issuance of Rules and Regulations relating to maintenance of standard and coordination of work and facilities in the University. Thus, the Regulations framed by UGC will have binding effect on the respondent-University. The Apex Court in the case of Annamalai University vs. Secretary to Government Infn. and Tourism Dept. and Ors., (2009) 2 UPLBEC 1094 has also held that UGC Regulations will be binding on the University. The relevant paragraph 23 of the said judgement is reproduced below:
"23............Was the alternative system envisaged under the Open University under the Open University Act was in substitution of the formal system is the question. In our opinion, in the matter of ensuring the standard of education, it is not. The distinction between a formal system and informal system is in the mode and manner in which education is imparted. UGC Act was enacted for effectuating co-ordination and determination of standards in Universities. The purport and object for which it was enacted must be given full effect. The provisions of the UGC Act are binding on all Universities whether conventional or open. Its powers are very broad. Regulations framed by it in terms of clauses (e), (f), (g) and (h) of Sub-section (1) of Section 26 are of wide amptitude. They apply equally to Open Universities as also to formal conventional Universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the co-ordination of work of facilities in universities must be maintained and for that purpose required to be regulated."
(emphasis supplied) It has been specifically provided in Regulation 12 of the UGC Regulations, 2009 that the allotment/allocation of supervisor shall not be left to the individual student or teacher. In fact, the obligation is cast on the University/Department to provide a supervisor to the student who has been duly selected for such admission.
The contention of the learned counsel for the respondents-University is that providing for the student to identify a mutually agreeable supervisor, would be a higher qualification or requirement, and thus the said provisions would not be contrary to Regulation 12 of the UGC Regulations, 2009, is not worthy of acceptance. The two decisions of the Apex Court rendered in the case of Union of India vs. N. Chandrasekharan (supra) and State of Karnataka vs. Chamundeswari Sugar Limited (supra), which have been relied on by the learned counsel for the respondents in this regard, relate to a situation where a minimum qualification had been provided for, whereas in the present case it is not a qualification which has been provided by the relevant Clause in the Information Bulletin, but it is a procedure which is provided and the two cannot be equated. The procedure for selection of a supervisor for a selected candidate would be different from a minimum qualification, which may be prescribed under the Act or the Rules.
As such, the ratio of the said decisions relied on by the learned counsel for the respondents does not apply to the facts of the present case. If students are left to choose the supervisor on mutual agreement basis, failing which the admission would not be granted to the students, then it would be highly discriminatory as meritorious students may be deprived of getting a supervisor, which could be because the student is either not good looking and does not have much money or is not acceptable to the supervisor for any other reasons, whereas the lesser meritorious students, who have other better qualification (which may not be specified in this order), may get mutually agreeable supervisor by the dozen.
As such, the aforesaid provision, depending on the subjective choice of a supervisor reminds us the story of Eklavya and Guru Dronacharya. Eklavya was the son of Nishadraj (Tribal fisherman) who approached Guru Dronacharya to tutor him in the arts of war especially archery. Guru Dronacharya was appointed by the royal family of Hastinapur to impart training to young Princes, Kauravs and Pandavs, so he refused to accept Eklavya as his student and turned him away due to the reason that Eklavya belonged to a lower caste, which was not entitled to gain education in those days when the society was divided into four 'Varnas' namely 'Brahman, Kshatriya, Vaishya and Shudra' and only Kshatriya had the right to learn war skills and archery. One more reason with Guru Dronacharya for not accepting Eklavya as his disciple was that Guru Dronacharya did not want anyone to acquire such proficiency in archery so as to be in direct competition with his favourite disciple Arjun.
Thus Eklavya, despite being a meritorious and skilled archer, was deprived of getting the archery training by Guru Dronacharya because the choice was left on the will of Dronacharya to accept or not to accept Eklavya as his disciple. This practice might have been accepted in the ancient times of Mahabharat (Treta Yug) but at present this kind of practice can never be accepted and if there is any such rule providing for the same, it must be struck down.
The first criteria of selection of a candidate for any course, and more so for Ph.D. course, should be merit. It is the University which should provide the meritorious students, a compatible supervisor and should not leave it to the students to choose the supervisor or the supervisor to choose its students. Such is a mandate of University Regulation also, which provides that the allotment/allocation of supervisor shall not be left to the individual student or teacher. The provisions made in Clause U.2.2 (g) of the University Regulations is thus contrary to the mandate of the Regulations of the UGC provided in Regulation 12 of Regulation, 2009, which is binding on all Universities.
As such, we have no doubt in holding that the said provision of Clause U.2.2(g) of the Information Bulletin is ultra vires the Regulation 12 of the Regulation, 2009 of the UGC.
For the reasons given hereinabove, this appeal stands allowed. The judgement and order dated 6.12.2013 passed by the learned Single Judge in writ petition no. 49436 of 2013 is set aside. The said writ petition filed by the appellant-petitioner is also allowed to the extent that the orders dated 23.1.2013 and 13th/14th, August, 2013 passed by the respondents-University are quashed.
The Clause U.2.2 (g) of the Information Bulletin for the RET-2012 admission to Ph.D. programme and M.Phil is quashed, being contrary to the provisions of Regulation 12 of the Regulation, 2009 of the UGC. The respondents-University is directed to provide a Supervisor or Co-supervisor to the appellant-petitioner and register the appellant-petitioner to Ph.D. course of Vocal Music in the next academic session of the University.
There shall be no order as to costs.