W.Ps.(C) 13689/2009 & 2780/2010 Page 1 of 25 #33&34 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI 33. + W.P.(C) 13689/2009 ALL INDIA RESEARCHERS‟ COORDINATION COMMITTEE & ORS. ..... Petitioners Through: Mr. Amit Kumar, Advocate with Mr. Ashish Kumar, Advocate. versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. Neeraj Chaudhari, Mr. Khalid Arshad and Mr. Bhagat Singh, Advocates for UOI. Mr. Amitesh Kumar, Advocate for UGC. Mr. Mohinder J.S. Rupal, Advocate with Mr. Sonam Gupta, Advocate for respondent No.3. AND 34. + W.P.(C) 2780/2010 SARIKA CHAUDHARY ..... Petitioner Through: Ms. Sonia Mathur, Advocate. versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. B.V. Niren, Advocate for UOI. Ms. Maninder Acharya, Advocate for University of Delhi. Mr. Amitesh Kumar, Advocate for UGC. Reserved on: 23rd September, 2010 % Date of Decision: 06th December, 2010 W.Ps.(C) 13689/2009 & 2780/2010 Page 2 of 25 CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes J U D G M E N T MANMOHAN, J : 1. Present writ petitions have been filed under Article 226 of the Constitution of India challenging the constitutional validity of the Regulations dated 11th July, 2009 framed by the University Grants Commission (in short, “UGC”) namely, UGC (Minimum qualifications required for the appointment and career advancement of Teachers in Universities and Institutions affiliated to it) (3rd Amendment), Regulation, 2009 ( in short, “Regulations 2009”). The relevant portion of the impugned Regulations, 2009 reads as under:- “NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions. Provided, however, that candidates, who are or have been awarded Ph.D. Degree in compliance of the “University Grants Commission (minimum standards and procedure for award of Ph.D Degree), Regulation 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions. 2. The petitioners are aggrieved by the aforesaid Regulations, 2009 inasmuch as it does away with the exemption from compulsory W.Ps.(C) 13689/2009 & 2780/2010 Page 3 of 25 NET/SLET examination for appointment as Lecturers in Universities. The said exemption was earlier provided by the UGC vide UGC (Minimum qualifications required for the appointment and career advancement of Teachers in Universities and Institutions affiliated to it) (2nd Amendment), Regulations, 2006 (hereinafter referred to as, “Regulations 2006”). The relevant portion of Regulations 2006 is as under:- “NET shall remain the compulsory requirement for appointment as Lecturer for those with Post Graduate Degree. However, the candidates having Ph.D. degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phil Degree in the concerned subject are exempted from NET for UG level teaching only.” 3. Mr. Amit Kumar, learned counsel for the petitioners submitted that the power to frame Regulations had been exclusively conferred under the UGC Act, 1956 (hereinafter referred to as, “Act”) on the UGC and the Union of India (for short “UOI”) could not have interfered with the said power. According to him, the impugned Regulations framed by the UGC pursuant to direction by UOI vide letter dated 12th November, 2008 was abdication of statutory power by the UGC. It was submitted by the learned counsel that when a particular act is prescribed to be done in a particular manner under any statute, then the act must be done in that manner or not at all. To emphasise the said submission, reliance was placed on the decisions of the Supreme Court in Rao Shiv Bahadur Singh Vs. State of U.P. AIR 1954 SC 322; Deep Chand Vs. State of Rajasthan AIR 1961 SC 1527 W.Ps.(C) 13689/2009 & 2780/2010 Page 4 of 25 and State of U.P. Vs. Singhara Singh AIR 1964 SC 358 wherein the rule laid down in Nazir Ahmed Vs. King Emperor AIR 1936 PC 253 was upheld that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. 4. Mr. Amit Kumar further submitted that the direction given by the Government to the UGC to bring out the said Regulations, 2009 could not have been upheld in law as the exercise of power conferred on UOI under Section 20 of the Act was a general provision, which could not override Section 26(1) of the Act which was a special provision. It was submitted that it is well settled law that between special clause and general clause in the same statute, the special clause will prevail. The learned counsel for petitioners relied on a decision of Supreme Court in J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. The State of Uttar Pradesh and Ors. 1961 (3) SCR 0185 wherein it was stated that the rule is that whenever there is a particular enactment and a general enactment in the same statute, the latter taken in its most comprehensive sense would overrule the former. 5. Mr. Amit Kumar further submitted that it had been the consistent policy of UGC and the Government to grant exemption to those who had obtained M.Phil and Ph.D degree before the cut-off date. A similar exemption was also provided by Regulations 2006 which had given rise to legitimate expectation that a person having M.Phil/ Ph.D degree would be eligible for the post of Lecturer without anything more and created an impression that they would not have to pass NET. It was W.Ps.(C) 13689/2009 & 2780/2010 Page 5 of 25 submitted that in view of the exemptions provided by earlier Regulations, a vested right had accrued in favour of petitioners for consideration for appointment to the post of Lecturer. However, with the introduction of the impugned amendment, the said right had been extinguished and M.Phil and Ph.D degrees holders would now have to pass NET examination to become eligible for the post of Lecturer. 6. It was also submitted by Mr. Kumar that the direction of the Government of India to reject the recommendations of UGC was an arbitrary exercise of power as the reason given by the Ministry of Human Resource and Development for making NET mandatory was that there is a wide variation in the procedure adopted by the Universities in awarding M.Phil and P.hd Degrees. The said reason, according to Mr. Kumar, was legally untenable as all the Universities in India were regularly checked by UGC for their academic standards. 7. Mr. Amit Kumar lastly submitted that Section 25(3) of the UGC Act categorically stated that no retrospective rule can be framed by UGC which would prejudicially affect the interest of any person to whom such rule may be applicable. Therefore, according to him, the impugned amendment is violative of Section 25(3) of the Act and liable to be declared void. 8. Mr. Neeraj Chaudhury, learned counsel for the Union of India submitted that the Central Government has been empowered under Section 20(1) of the Act to give directions to UGC on questions of policy relating to national purpose. Hence, it is within the domain of W.Ps.(C) 13689/2009 & 2780/2010 Page 6 of 25 the Central Government to issue directions to UGC to frame regulations to give effect to the improvement of standards in teaching by prescribing an entry level qualification. According to him, Regulations 2009 were issued by UGC to comply with the intent of the policy directive dated 12th November, 2008 issued by the Central Government. 9. Mr. Chaudhari further submitted that UGC had been entrusted with the duty of maintenance of standards of teaching, examination and research in universities. UGC on the basis of recommendations made by Professor R.C. Mehrotra Committee and the Vice Chancellor‟s conference held in 1989 had decided to hold a comprehensive National Test to determine the eligibility for Lecturer with reference to a common yardstick. The Supreme Court in University of Delhi Vs. Raj Singh, (1994) Suppl. 3 SCC 516 had observed that the purpose of conducting a test like NET was to categorically evaluate the standard of candidates for the post of Lecturer, where two post graduate applicants were available from different universities. 10. Mr. Chaudhari also submitted that it was necessary to have a test to judge the abilities and standard of innumerable candidates who wish and aspire to secure the job of a Lecturer in colleges and universities. Keeping this objective in mind, the retention of NET/SLET as a compulsory requirement was insisted upon for appointment to the post of Lecturer for both undergraduate and post graduate level, irrespective of the candidate possessing M.Phil or Ph.D degree. It was submitted by Mr. Chaudhari that the NET/SLET is not an examination for degree but W.Ps.(C) 13689/2009 & 2780/2010 Page 7 of 25 an eligibility test to determine the merit in an objective manner and the Regulations, 2009 were issued in this background. 11. Mr. Chaudhari further submitted that as the salaries and other allowances for teachers were higher than those of the Group „A‟ civil servants, the Pay Review Committee had recommended that in order to justify the high salaries paid to the teachers in colleges and universities, the eligibility condition should be tightened and qualifications should be of a high order and the persons to be employed as teachers be assessed by means of an objective mechanism in the form of NET/SLET. 12. Mr. Amitesh Kumar, learned counsel for UGC submitted that UGC had been statutorily entrusted with the duty to take such steps as it may think fit for promotion and coordination of university education and for the determination and maintenance of standards of teaching, examinations and research in universities. Section 26 of the Act empowered the UGC to make regulations consistent with the Act amongst others for defining the qualifications that should ordinarily be required by any person to be appointed to the teaching staff of the university. 13. It was submitted by Mr. Amitesh Kumar that the Ministry of Human Resource and Development, Government of India had constituted a Committee to review the NET examination and the said Committee in its report had recommended as under: “NET should be retained as a compulsory requirement for appointment of lecturer for both undergraduate and post W.Ps.(C) 13689/2009 & 2780/2010 Page 8 of 25 graduate level, irrespective of candidate possessing M.Phil and Ph.D. degree.” 14. Consequently, according to him, the Ministry of Human Resource and Development, Government of India had issued an order dated 12th November, 2008 to UGC under Section 20(1) of the Act to take steps for implementing the recommendations of the report. It was further submitted that under Section 20 of the Act the Central Government was empowered to issue directions to UGC on questions of policy relating to national purposes and such directions are binding on UGC. In pursuance of the policy direction issued by the Government of India, the UGC in exercise of its power conferred by Section 26(1)(e) and (g) read with Section 14 of the Act had framed the Regulations, 2009. 15. Mr. Amitesh Kumar also submitted that the UGC‟s power to frame Regulations under Section 26 was subject to the same being consistent with the Act and rules made thereunder by the Central Government under Section 25. 16. Further, it was submitted that UGC had framed the impugned Regulations, 2009 in exercise of its power conferred by Section 26(1)(e) and (g) read with Section 14 of the Act. Hence, the contention that the UGC has not acted in the manner it is required to act under the provisions of the Act, is wholly unfounded. 17. He lastly submitted that a similar petition challenging the vires of the impugned Regulations 2009 had been dismissed on 26th April, 2010 W.Ps.(C) 13689/2009 & 2780/2010 Page 9 of 25 by the Madras High Court in G. Sinthaiah Vs. University Grants Commission, W.P. 7116/2010. 18. Having heard the rival contentions and on a perusal of the record, we are of the opinion that UGC was established by an Act of Parliament passed by virtue of power conferred under Entry 66 List 1, VII Schedule of the Constitution of India. The said Entry gives power to the Union of India to ensure that required standard of higher education in the country are achieved and maintained at the highest level. It is the responsibility of the Central Government to coordinate and determine the standards of higher education. This power includes the power to evaluate, harmonize and improve educational standards. In pursuance of the above objective, the Parliament enacted the Act. 19. The Union of India is empowered by Section 20(1) of the Act to give policy directions in relation to national purpose. Section 20 of the Act is reproduced hereinunder :- “20. (1) In the discharge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government. (2) If any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final.” (emphasis supplied) W.Ps.(C) 13689/2009 & 2780/2010 Page 10 of 25 20. It is pertinent to mention that UGC made the NET examination compulsory for appointment to the post of teachers and lecturers in the universities for the first time by way of Regulations in 1991. The 1991 Regulations were based on the recommendations of Expert Committees appointed by the Union of India from time to time for evaluation, upgradation and maintenance of the standards of higher education in the country. 21. The Union of India constituted a Review Committee on NET under the Chairmanship of Prof. Bhalchandra Mungekar, Member Planning Commission (Education). The said Committee in its final report recommended as under:- “Based on the intensive and extensive deliberations throughout the country and near unanimity among academics scientists, administrators, Vice Chancellors and potential candidates, most of whom would be teachers and particularly in view of the floodgates being opened for the registration of M.Phil and Ph.D. degrees resulting only into a further deterioration of the quality of these degrees, and consequently making easy entry of the teaching profession of such degree holders, the Committee recommends that NET should be retained as a compulsory requirement for appointment of lecturer for both undergraduate and postgraduate level, irrespective of candidate possessing M.Phil. or Ph.D. degree” 22. In view of the recommendations of the final report of Mungekar Committee, the Union of India gave policy directions vide letter dated 12th November, 2008 to UGC to issue regulations to make NET compulsory for appointment of teachers/lecturers in universities. The relevant portion of the said directions are reproduced hereinunder:- W.Ps.(C) 13689/2009 & 2780/2010 Page 11 of 25 “Now, therefore, in exercise of the powers, conferred by sub- section (1) of Section 20 of the University Grants Commission Act, 1956, the Central Government hereby directs that (1) the UGC shall, for serving the national purpose of maintaining standards of higher education, frame appropriate regulations within a period of thirty days from the date of issue of this Order prescribing that qualifying in NET/SLET shall generally be compulsory for all persons appointed to teaching positions of Lecturer/Assistance Professor in higher education, and only persons who possess degree of Ph.D. after having been enrolled/admitted to a programme notified by the Commission, after it has satisfied itself on the basis of expert opinion, as to be or have always been in conformity with the procedure of standardization of Ph.D. prescribed by it, and also that the degree of Ph.D. was awarded by a University or Institution Deemed to be University notified by the UGC as having already complied with the procedure prescribed under the regulations framed by the Commission for the purpose. (2) the UGC shall notify the date or dates from which exemption from qualifying in NET/SLET in respect of Universities/Institutions Deemed to be Universities as well as the discipline for which such exemption is being granted only on the recommendations of a Committee of Experts to be constituted by the Commission and that the experts therein shall be persons of high eminence in the respective disciplines for which the persons possessing Ph.D. are considered for exemption from qualifying NET/SLET. (3) The UGC shall not give any blanket or general exemption from NET/SLET to any University/Institution Deemed to be University unless the degree of Ph.D. awarded by it in all disciplines or programmes meet the same level of rigour in terms of standards and quality as laid down by the Commission for each discipline under the regulations for the purpose, and that exemption from NET/SLET in respect of Ph.D. awarded by any University/Institution Deemed to be University or to one or more of its programmes/disciplines in respect of such Ph.D. shall be further subject to the University/Institution continuing to comply with the regulations of the UGC and shall be open to review or reconsideration by the Commission; and, such exemption shall be withdrawn in any or all disciplines or in respect of an award of Ph.D. to any person or persons, where the Commission has, on the basis of recommendation by the Committee of experts or on the basis of any inquiry conducted by it suo moto, reasons to believe that there has been deviation from or violation of the procedure prescribed by Commission.” W.Ps.(C) 13689/2009 & 2780/2010 Page 12 of 25 23. In pursuance of the aforesaid policy direction given by the Union of India, the UGC in exercise of its powers conferred by Clause (e) and (g) of sub-Section 1 of Section 26 read with Section 14 of the Act, made the impugned Regulation, 2009 whereby qualifications were prescribed for teaching posts in the Universities and in any of the institutions affiliated to it. In our opinion, the quality of teaching in higher education is a matter of great concern and in order to position India as a powerhouse in the knowledge economy, the standards of education in Universities and other institutions of higher learning have to be improved substantially. The prescription of NET as an entry bar for being considered for appointment as a teacher has been placed in order to ensure a certain modicum of quality screening so that persons of quality enter the academic profession. Consequently, prescription of NET examination cannot be called to be arbitrary. 24. The contention of the learned counsel for the petitioners that the impugned Regulations framed by the UGC in pursuance of the directions by the Central Government is an abdication of its statutory powers, cannot be sustained as the abovesaid directives by the Central Government are with regard to policy relating to national purpose and, consequently, not only contemplated by the Act but also binding upon the UGC in terms of Section 20(1) of the Act. 25. Further, we are of the considered view that UGC‟s power to frame Regulations under Section 26 of the Act is not a stand-alone W.Ps.(C) 13689/2009 & 2780/2010 Page 13 of 25 power but is subject to other provisions of the Act. Also the Regulations so framed under Section 26 of the Act have to be in consonance with the rules as framed by the Central Government under Section 25 of the Act. The UGC in discharge of its functions under the Act has to necessarily follow the policy directions issued to it by the Central Government as mandated by Section 20(1) which has been reproduced above. In our view, it cannot be said that Section 26 is special in nature and other provisions of the Act including Section 20 are general in nature or otherwise. Consequently, it cannot be held that Section 26 of the Act is special in nature and has overriding effect over the other provisions of the Act including Section 20. 26. The submission of learned counsel for petitioners that exemption granted by the Regulations 2006 has given rise to legitimate expectation that such policy would be continued and the impugned Regulation 2009 be quashed on ground of hardship insofar as it does not grant exemption to the petitioners, does not impress us. It has been time and again held by the Supreme Court that a Rule or a Regulation cannot be declared void on the ground of hardship. In this connection, we may refer to the Supreme Court‟s judgment in State of Tamil Nadu & Anr. Vs. P. Krishnamurthy & Ors., (2006) 4 SCC 517 wherein the Apex Court has held as under:- “Whether the Rule is valid in entirety? 15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well W.Ps.(C) 13689/2009 & 2780/2010 Page 14 of 25 recognised that a subordinate legislation can be challenged under any of the following grounds: (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. (f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). 16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity. 17. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India this Court referred to several grounds on which a subordinate legislation can be challenged as follows: (SCC p.689, para 75) “75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.” (emphasis supplied) W.Ps.(C) 13689/2009 & 2780/2010 Page 15 of 25 18. In Supreme Court Employees‟ Welfare Assn. v. Union of India this Court held that the validity of a subordinate legislation is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or is so arbitrary or unreasonable that no fairminded authority could ever have made it. It was further held that the Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to be unauthorised and/or violative of the general principles of law of the land or so vague that it cannot be predicted with certainty as to what it prohibited or so unreasonable that they cannot be attributed