IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.04.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.7116, 7465, 7580, 7581, 7759, 7760, 8033, 8034, 8035, 8036, 3037, 3038, 8076, 8077 and 8078 of 2010 & connected Miscellaneous Petitions. G.Sinthaiah ..Petitioner in WP 7116,7465/2010 P.Susella A.Baskaran S.Saravanan M.Rajendran P.Louis Alphonse D.Anbalagan D.Jayamani R.Subramani R.Thirupathi T.Rajendran L.Gunasekaran ..Petitioner in WP 7580,7581/2010 V.Santhi ..Petitioner in WP 7759,7760/2010 S.Easwaran ..Petitioner in WP 8033 to 8035/2010 Mrs. A.Ali Fathima ..Petitioner in WP 8036 to 8038/2010 Mr.P.Selvam ..Petitioner in WP 8076,8078/2010 Vs. UNIVERSITY GRANTS COMMISSION REP. BY ITS CHAIRMAN BAHADURSHAH ZAFAR MARG NEW DELHI-110 022. ...1ST RESPONDENT IN W.P.7465/10 ...1ST RESPONDENT IN W.P.7580/10 ...1ST RESPONDENT IN W.P.7581/10 UNIVERSITY GRANTS COMMISSION REP BY ITS SECRETARY BAHADURSHAH ZAFAR MARG NEW DELHI.110 022 ...1ST RESPONDENT IN W.P.7759, 7760/10 (8033 TO 8038/10, 8076 TO 8078/10) https://hcservices.ecourts.gov.in/hcservices/ THE TEACHERS RECRUITMENT BOARD REP. BY ITS CHAIRMAN GOVERNMENT OF TAMIL NADU EVK SAMPATH MAALIGAI DPI COMPOUND COLLEGE ROAD,CHENNAI-6. ...RESPONDENT IN W.P.7116/10 2ND RESPONDENT IN W.P.7465, 7580, 7581, 7759, 7760, 8033, 8034, 8035, 8036, 8037, 8038, 8076, 8077, 8078/10 THE BHARATHIYAR UNIVERSITY REP. BY ITS REGISTRAR COIMBATORE-641 046. ...3RD RESPONDENT IN 8033 TO 8038/10, 8076 TO 8078/10 THE STATE OF TAMIL NADU REP. BY ITS SECRETARY TO GOVERNMENT HIGHER EDUCATION (F2) DEPARTMENT FORT ST. GEORGE,CHENNAI-9. ...4TH RESPONDENT IN W.P.8035, 8038,8076 TO 8078/10 Prayer in W.P.No.7116/10, and WP.7580,7759,8034,8037,8077/10: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus to forbear the respondent from insisting on NET/SLET qualification for persons who have passed M.Phil prior to 1993 for being eligible to apply for the post of Assistant Professors in Tamil Nadu Collegiate Educational Service and consequently direct the respondent to entertain the application of the petitioner for the Post of Assistant Professor in Tamil Nadu Collegiate Educational Service pursuant to the Notice dated 29.3.2010 issued by the respondent and consider the petitioner for the said post without imposing the condition of requirement of NET/SLET qualification. Prayer in W.P.No.8033/10 and 7465,7581,7760,8036,8076/10: Petition under Article 226 of the Constitution of India praying for a Writ of declaration declaring the University Grants Commission (Minimum Qualifications required for appointment and career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations 2009 and notified on 11.7.2009 as arbitrary and violative of Articles 14 and 16 of the Constitution in so far as NET/SLET has been made as minimum qualification for Lecturer Post without giving special exemption for the candidates who got their M.Phil degrees prior to 31.12.1993 and pass orders. WP NO.8035/2010, WP NO.8038/10, WP NO.8078/10:The writ petition filed under article 226 of constitution of India praying to issue a writ of Mandamus to Calling for the records of the 4th respondent Government Order having reference G.O.Ms.No.412 Higher Education (F2) Department dated 7.12.2009 and quash the same in so far as the https://hcservices.ecourts.gov.in/hcservices/ said Government Order does not award 9 marks to the candidates who have completed only M.Phil degree and consequently direct the 2nd respondent to award 9 marks to the petitioner who has completed M.Phil Degree in the concerned subject prior to 1993 while processing his application and certificate verification for the post of Assistant Professor. For Petitioners in all W.Ps. :: Ms.Nalini Chidambaram, Sr.Counsel for Ms.C.Uma For Respondents For University Grants Commission:: Mr.P.K.Gopinathan For Teachers Recruitment Board :: Mr.K.H.Ravikumar, G.A COMMON ORDER Excepting the petitioner in W.P.No.7116 of 2010, other petitioners have filed the present Writ Petitions seeking for a Writ of Declaration or any other writ declaring the University Grants Commission (Minimum Qualifications required for appointment and career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations 2009 and notified on 11.7.2009 as arbitrary and violative of Articles 14 and 16 of the Constitution in so far as NET/SLET has been made as minimum qualification for Lecturer Post without giving special exemption for the candidates who got their M.Phil degrees prior to 31.12.1993 and pass appropriate orders. The prayer in W.P.No.7116 of 2010 is more or less claiming similar relief but vouched with a different prayer. 2. Pending the Writ Petitions, they also sought for interim injunction directing the Teachers Recruitment Board from rejecting their applications submitted for the post of Assistant Professors coming under the Tamil Nadu Collegiate Educational Service for want of NET/SLET qualification pending disposal of the Writ Petitions. They also sought for stay of the impugned qualifications prescribed by the University Grants Commission. 3. When the matter came up for admission, this Court directed notice to be issued to the University Grants Commission and accordingly Mr.P.K.Gopinathan, learned counsel takes notice for UGC. On behalf of the Teachers Recruitment Board, Mr.K.H.Ravikumar, learned Government Advocate took notice and also filed a short counter affidavit in respect one Writ Petition, namely W.P.No.7116 of 2010 dated 16.4.2010 along with supporting documents. 4. Heard the arguments of Mrs.Nalini Chidambaram, learned senior counsel leading Ms.C.Uma, learned counsel for the petitioners, Mr.P.K.Gopinathan, learned counsel for University https://hcservices.ecourts.gov.in/hcservices/ Grants Commission and Mr.K.H.Ravikumar, learned Government Advocate for the Teachers Recruitment Board. 5. Provocation for the petitioners to file the present Writ Petitions arose when applications were called for by the Teachers Recruitment Board vide Advertisement No.4/20 for direct recruitment to the post of Assistant Professors under the Tamil Nadu Collegiate Educational Service-2010. In the notification issued for selection to the said post, in paragraph No.3, the educational qualifications have been prescribed, which are as follows: "3. Educational qualifications: a) All candidates other than SC/ST: Pass in Post- graduate Degree in the relevant subject with a minimum of 55% marks and a pass in the UGC/CSIR/JRF/NET/SLET/SLST in the relevant subject. (or) Pass in Post-graduate Degree in the relevant subject with a minimum of 55% marks and Ph.D.in the relevant subject. b) for SC/ST candidates and all Physically handicapped candidates: Pass in Post-graduate Degree in the relevant subject with a minimum of 50% marks and a pas in the UGC/CSIR/JRF/NET/SLET/SLST in the relevant subject. (or) Pass in Post-graduate Degree in the relevant subject with a minimum of 50% marks and Ph.D.in the relevant subject." Admittedly, all the petitioners have got M.Phil Degrees obtained before 31.12.1993. 6. According to the petitioners, in the earlier regulations framed by the University Grants Commission, candidates, who have obtained M.Phil degrees before 31.12.1993 were exempted from writing NET/SLET examination. Therefore, suddenly introducing such a qualification would deprive their chances of getting considered for the post of Assistant Professors. Therefore, the University Grants Commission inasmuch as granting the regulation without taking note of relevant consideration is clearly illegal. Though they do not question the jurisdiction of the University Grants Commission in prescribing minimum qualification but not taking into account the relevant circumstances, i.e the earlier regulations of the year 2000, 2002 and 2006, when they have exempted M.Phil degree holders without NET/SLET qualification for considering in the said post and all of a sudden introducing, on 11.7.2009 vide Regulation of the year 2009 for a pass in NET/SLET as an essential qualification for https://hcservices.ecourts.gov.in/hcservices/ all is really violative of Articles 14 and 16 of the Constitution. 7. The learned senior counsel appearing for the petitioners also submitted that while there is power under the University Grants Commission Act to frame regulations but when the power is exercised, it must be done reasonably and it must be informed of reasons. Therefore the Writ Petitions should be admitted and interim directions should be granted to the respondents. 8. The learned senior counsel for the petitioners also submitted that during the year 1990, the University of Madras informed the candidates that if they have passed M.Phil degrees, they are exempted from appearing for the State Level Screening Test. Subsequently, the Bharathiar University by its Notification dated 16.8.2009 calling for applications for the State Eligibility Test (SET) in the Additional Examination of the year 2008 informed that the persons, who are holding M.Phil degree before 31.12.1993 were exempted from writing the examination. Since they were made to believe all these years that such an exemption will be available, suddenly asking them to possess such qualification really works hardship. They are unable to go through the test for selection and hence the impugned regulation should be set aside. 9. It is seen from the communications issued on 11.7.2009 (published in the Gazette of India) that the University Grants Commission has prescribed the minimum qualifications required for appointment and career advancement of Teachers. Regulation 2009, which is the third amendment. By Regulation 2000, with reference to NET qualification, it was stated as follows: "NET shall remain the compulsory requirement for appointment as lecturer even for candidates having Ph.D degree. However, the candidates who have completed M.Phil degree or have submitted Ph.D. Thesis in the concerned subject upto 31st December 1993 are exempted from appearing in the NET examination." By Regulation 2002, it was prescribed as follows: "NET shall remain compulsory requirement for appointment as Lecturer even for candidates having Ph.D.Degree. However, the candidates who have completed M.Phil. Degree by 31st December 1993 or have submitted Ph.D. Thesis to the University in the concerned subject on or before 31st December 2002 are exempted from appearing in the NET examination. In case such candidate fail to obtain Ph.D. Degree, they shall have to pass the NET examination." By Regulation 2006, it was stipulated as follows: https://hcservices.ecourts.gov.in/hcservices/ "NET shall remain compulsory requirement for appointment as Lecturer even 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." The impugned regulation of the year 2009 reads as follows: "NET/SLET shall remain the minimum eligibility condition for recruitment for appointment of Lecturers in Universities/Colleges/Institutions. Provided, however, that candidates, who are or have been awarded Ph.D. Degree and 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 position in Universities/Colleges/Institutions." 10. Therefore, what is applicable to the Universities and Colleges with reference to the qualification, is the qualification prescribed for the year 2009 with effect from 11.7.2009. The said power of the University Grants Commission has been exercised in terms of Section 26(1)(e) and (g) read with Section 14 of the University Grants Commission Act, 1956. It must be noted that it is not as if the University Grants Commission did not have any materials for introducing such qualifications. On the contrary, the Government of India appointed Prof.G.K.Chadha Committee and the Committee has recommended strict implementation of the University Grants Commission regulations. The Committee's Report was forwarded to all the Governments and various Universities. It is pursuant to the directive of the University Grants Commission, the State Government also appointed an official committee for introducing the scales of pay as well as the qualifications for recruitment for Teachers by G.O.Ms.78, Finance (Pay Cell) Department dated 25.2.2009. Pursuant to the recommendation of the Official Committee, the Government has issued G.O.Ms.350, Higher Education (H1) Department dated 9.9.2009. In the said order of the State Government, in paragraph No.A (iv), it has been stated as follows: "(vi) National Eligibility Test (NET) shall be compulsory for appointment at the entry level of Assistant Professor, subject to the exemptions to the degree of Ph.D.in respect of those persons obtaining the award through a process of registration, course-work and external evaluation, as have been/or may be laid down by the UGC through its regulations, and so adopted by the University. Net shall not be required for such Masters' programmes in disciplines for which there https://hcservices.ecourts.gov.in/hcservices/ is no NET." 11. The qualifications prescribed by the State Government adopts the recommendations of the University Grants Commission. For the implementation of the University Grants Commission scales of pay to Teachers and it had introduced the minimum norms for recruitment and that cannot be found fault with. The prescription contained the Government Order is in tune with the current University Grants Commission regulations. 12. In fact, subsequent to the order of the Government in accepting the recommendations of the Official Committee in respect of the current regulation, the State Government has also issued G.O.Ms.No.412, Higher Education Department dated 7.12.2009. In the said Government Order, they have prescribed award of revised marks for possessing higher qualification. The current marks to be awarded is found in para 3, which reads as follows: "3. The Government have examined the suggestions of the Chairman, Teachers Recruitment Board carefully and decided to revise the marks awarded for selection of Lecturers in Government Arts and Science Colleges and Colleges of Education. Accordingly, the amendments I & II issued in the Government Order third read above are slightly modified as follows: 1 For teaching experience in Universities/Governemtn/aided colleges / self financing colleges in the approved post including the teaching experience (in the relevant subject) of the candidates in Medical Engineering/Law Colleges. (2 marks for each year subject to a maximum of 15 marks) 15 marks 2 Qualification: a) For Ph.D. In concerned subject 9 b) For M.Phil with SLET/NET 6 C) For PG & SLET/NET 5 9 marks (maximum) 3 Interview 10 marks Total 34 marks 13. Therefore, the State Government before calling for candidates for the Tamil Nadu Collegiate Education Service has kept in mind the current University Grants Commission Regulations and also had given appropriate marks for candidates, who are in https://hcservices.ecourts.gov.in/hcservices/ possession of higher experience and higher qualifications. Merely because the petitioners do not have such qualifications, that cannot be a ground for them either to attack the selection made by the State Government through the agency of the 2nd respondent (Teachers Recruitment Board) or attack the University Grants Commission regulations on the ground that it is either unreasonable or causing hardship to the candidates not in possession of NET/SLET qualifications. 14. In this context, it is necessary to refer to the history behind the introduction of standard test for recruitment of College Teachers and University Teachers and the note for introduction of such a qualification. 15. The Supreme Court vide its judgment in University of Delhi v. Raj Singh, 1994 Supp (3) SCC 516 in paragraph No.20 after upholding the view of the University Grants Commission to prescribe such qualifications, which will have a bearing through out the country and in paragraph 21 the regulation itself was analysed. It was held in paragraph 21, which is as follows: "21. We now turn to analyse the said Regulations. They are made applicable to a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, every institution, including a constituent or an affiliated college recognised by the UGC in consultation with the University concerned, and every institution deemed to be a University. The said Regulations are thus intended to have the widest possible application, as indeed they must have if they are to serve the purpose intended, namely, to ensure that all applicants for the post of lecturer, from whichever University they may have procured the minimum qualificatory degree, must establish that they possess the proficiency required for lecturers in all Universities in the country. This is what clause 2 of the said Regulations mandates, thus: “No person shall be appointed to a teaching post in University ... in a subject if he does not fulfil the requirements as to the qualifications for the appropriate subject as provided in Schedule 1.” The first proviso to clause 2 permits relaxation in the prescribed qualifications by a University provided it is made with the prior approval of the UGC. This is because the said Regulations, made under the provisions of Section 26(1)(e), define the qualifications that are ordinarily and not invariably required of a lecturer. The second proviso to clause 2 makes the application of the said https://hcservices.ecourts.gov.in/hcservices/ Regulations prospective. Clause 3 of the said Regulations provides for the consequence of the failure of a University to comply with the recommendation made in clause 2 in the same terms as are set out in Section 14 of the UGC Act. The provisions of clause 2 of the said Regulations are, therefore, recommendatory in character. It would be open to a University to comply with the provisions of clause 2 by employing as lecturers only such persons as fulfil the requirements as to qualifications for the appropriate subject provided in the schedule to the said Regulations. It would also be open, in specific cases, for the University to seek the prior approval of the UGC to relax these requirements. Yet again, it would be open to the University not to comply with the provisions of clause 2, in which case, in the event that it failed to satisfy the UGC that it had done so for good cause, it would lose its grant from the UGC. The said Regulations do not impinge upon the power of the University to select its teachers. The University may still select its lecturers by written test and interview or either. Successful candidates at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and, therefore, all who have cleared it stand at the same level. There is, therefore, no element of selection in the process. The University’s autonomy is not entrenched upon by the said Regulations." The non-adherence of such regulations will also result in instant punishment, namely withholding of the University Grants Commission grants, which was also referred to in paragraph 24 and it reads as follows: "24. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said Regulations; or it may seek prior approval for the relaxation of this requirement in a specific case; or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC’s approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the UGC, forfeit its grant from the UGC. If, however, it did show cause to the satisfaction of the UGC, it not only would not forfeit its grant but the appointment made without obtaining the UGC’s prior approval would stand regularised. Therefore, the petitioners cannot contend and rightly agreed by the learned senior counsel for the petitioners that there is lack of jurisdiction in the University Grants Commission to prescribe minimum standards for recruitment. https://hcservices.ecourts.gov.in/hcservices/ 16. Mr.K.H.Ravikumar, learned Government Advocate also brought to the notice of this Court a judgment of the Division Bench of this Court in Secretary, Kamaraj College, Thoothukudi vs. D.S.Arulmani, Reader and Head of Department of Tmail, Kamaraj College, Thoothukudi and others reported in (2008) 2 MLJ 593, wherein the insistence of the UGC regulations in relation to appointment of Teachers in private Colleges came up for consideration. The Division Bench after referring to all the prior decisions on this field including the University of Delhi's case (1994 Supp (3) SCC 516) in paragraph 26 held that the qualifications prescribed by the UGC regulations indicate the bench mark or bottom line i.e., the eligibility criteria for selection. After upholding the validity of those UGC regulations, it was held that they are legally valid and there are no grounds to strike down those regulations. Though the learned senior counsel for the petitioners contended that the judgment is confined to the facts of the case and has no bearing on the present case, this Court is unable to agree with the said submission. 17. Subsequent to the Division Bench order, this Court had an occasion to consider a Government Order issued pursuant to the exercise of power under Article 309 of the Constitution. The issue arose was whether the Government can prescribe qualification contrary to the UGC regulation vide the case relating to Jeevarathinam (Ms.)and Others Vs. Government of Tamil Nadu, rep. By Secretary to Government, Law Department, Chennai and others reported in (2008)7 MLJ 1074. In paragraphs 35 and 37, it was observed as follows: "35. There is no averment in the counter affidavit filed by the State as to why the UGC Regulations dated 4.4.2000 was not adhered to. Even the Tamil Nadu Dr.Ambedkar Law University, to which the Government Law Colleges are affiliated, has been following the qualifications prescribed by the UGC for the post of Lecturers as can be found in the advertisement dated 10.11.2006 a copy of which is enclosed in the typed set. 37. Very recently, a Division Bench of this Court vide its decision in Secretary, Kamaraj College, Tuticorin Vs. D.S. Arulmani and Others (2008) 2 MLJ 593 dealt with the application of G.O.Ms.No.111 Higher Education Department dated 24.3.1999 vis-a-vis the Private Colleges Act and held that a legislation made by the State cannot override the said G.O. And UGC Regulations are binding on the affiliated Colleges in the matter of selection to the posts of Lecturers." 18. Therefore, there can be no challenge to the UGC exercising https://hcservices.ecourts.gov.in/hcservices/ its power in terms of Entry 66 of List I of Schedule VII of the Constitution. The State Government in that regard is bound to follow the UGC regulations since the regulations occupy the field over which the State has no control. 19. The second question whether the group of petitioners before this Court by not having the minimum eligibility as per the 2009 Regulations are entitled for exemption and that too by the order of the Court or by striking out the existing Regulations, can be countenanced by this Court. This Court is unable to go through such an exercise only because the petitioners were given a promise, (if at all there was any promise) on this issue, for not acquiring NET/SLET qualification. 20. In this context, it is necessary to refer the judgment of the Supreme Court in State of Maharashtra vs. Shashikant S.Pujari and others reported in (2006) 13 SCC 175, wherein a similar question came up for consideration. In that judgment, an appointment was denied on a regular basis on the ground of non-fulfilment of requisite qualification. When the same was not accepted by the College, a Writ Petition was filed and the Writ Petition was allowed by the Bombay High Court. As against the decision of the Bombay High Court, the State of Maharashtra preferred an appeal before the Supreme Court. The Supreme Court set aside the decision of the Bombay High Court and in paragraphs 39 and 40, it is held as follows: 39. If that is so, the High Court must be held to have committed an error in arriving at the said decision. We may also notice that he was found unsuitable, as being not possessed of the requisite qualifications. 40. The respondent might have been appointed by the College, but the State while undertaking to bear the financial burden of payment of salaries and other remunerations to teachers of a college is not bound thereby. It is entitled to contend that all appointments must be in accordance with the statute. (See A. Umarani v. Registrar, Coop. Societies; Mahendra L. Jain v. Indore Development Authority; National Fertilizers Ltd. v. Somvir Singh and Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad.)" 21. Similarly in Mohammed Sohrab Khan vs. Aligarh Muslim University and others reported in (2009) 4 SCC 555, the Supreme Court held that if the educational qualifications are prescribed in an advertisement, the authorities cannot deviate from the advertisement. Therefore, no direction can be given by this Court directing the State of Tamil Nadu or its agency, namely the Teachers https://hcservices.ecourts.gov.in/hcservices/ Recruitment Board to deviate from the advertisement published by them and by giving relaxation in favour of the petitioners herein. 22. The Supreme Court once again had an occasion to consider the Regulations framed under the IGNOU Act and the recruitment Rules framed by the State Government under Article 309 of the Constitution vide its judgment in Annamalai University rep.by