^IWV^^ ^ <i- < .(&oo 0 IN THE HON'BLE HI6H COURT OF CHHATTCSGARH AT BILAS.PUR WRIT PETETCON fS) NO..%^1\./2010 PETETCONERS <»^-. ^ 7 / -^ ^' ^^ -'yy ^....-••^ RESPONbENTS 1. Dr. Subodh Kumar bewangan, Son of Shri Vednath bevangan, aged 38 years, R/o. C/o. Tarun Tailors, Bastar Road, Dhamtari (C.G.), 2. Dr. Rameshwar Singh Sahu, Son of Late Shri ^uhled Ram Sahu, aged 43 years, R/o. C/o. Yogesh Buifding Workshop, Village and Post Mohcli, Tahsil Magarlod, District Dhamtari (C.G.). / 3. Dr. Praveen Kumar, Son of Kranti Prasad Gupta, aged 44 years, R/o. Shikaripara, Balod, District Durg (C.G.). ^4. Kulvinder Singh, Son of late Mohcin Singh, agsd 40 years, R/o infront of Pragya Budh Vihar street, House of Jagdish Mishra, Shikaripara, Balod, District Durg (C.G.). ^5. Suresh Kumar Son of Shri Chatur Singh, aged 30 years, R/o. Indira Colony, beside Mathai Building, Dallirajhara, Tahsil Balod, District Durg (C.6.), / / 6. Dinesh Kumar Makhija, Son of Shri Ram Kumar Makhija, aged about 42 years, R/o. C/o. Krishna Book Depot, infront of New Asha Talkies, Dallirajhara, bistrict - Durg (C.6.), VERSUS 1. State of Chhattisgarh, Through : The Secretary, Higher Education Department, Mantralaya, D.K.S. Bhawan, Raipur (C.6.). BH /2.. The Secretary, General Administration Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.). ^ _L WRIT PETCTION UNDER ARTECLE 226 OF CONSTETUTCQN OF INblA, THE ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. fS) No. 3374 of 2010 Petitioners : Dr. Subodh Dewangan & Others Versus Responcients I?<6titioners State of Chhattisgarh & Another & W.P. (S) No. 3380 of 2010 Respondents Budheshwar Prasad Singhraul 85 Others Versus State of Chhattisgarh 6& Others Writ Petitipn under Article 226 ofthe Constitution oflndia DB: Hon'ble Shri Justice I.M. Quddusi 8s Hon^ble Shri Justice N, K. Agarwal. P^g^jgnt : Shri RS Patel and Shri Anurag Dayal Shrivastava, Advocat^s for the Detitioners. Shri Vinay Harit, Deputy Advocate General with Shri Suryakant Mishra, Panel Lawyer for the State/respondents. ORAI/ ORDER (Passed on 10th day ofAugust, 2010) .Per I.M. Quddusi, J. By this common order, Writ Petition (S) Nos. 3374 ,of 2010 and 3380 of 2010 are being disposed of, as comimon facts and issues are involved in both the writ petitions. By way of these writ petitions, the petitioners pray for following reliefs: "10.1 This Hon'ble Court may kindly be pleased to call -records from the respondents. 10.2 This Hon'ble Court may kindly be pleased to issue writ of Certiorari & quashed the rules namely "Chhattisgarh Uchch Shiksha (Samvida ^ ^ 3. Sewa) Niyam, 2010 dated 15.06.2010 (Annexure P/2) and declare as ultra-vires. 10.3 That this Hon'ble Court may kindly be pleased to issue writ of Certiorari & quashed the advertisement dated 11.06.2010, published on 16.06.2010 (Annexure P/l) by the respondents for the appointment of Assistanf Professors on contract basis for the various subjects in the State of Chhattisgarh. 10.4 That this Hon'ble Court may kindly be pleased to issue writ of mandamus and command/direct the respondents that they give the age relaxation to the petitioners as Shiksha Karmis. 10.5 This Hon'ble Court may further be pleased to pass an appropriate order or issue writ as deemed fit under the facts and circumstances of the case and cost of the petition may also be awarded to the petitioners." At the very outset, it is necessary to mention here that Entry No. 66 of List-I of Schedule-7 of the Constitution of Indla i.e. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions, is the union subject and has enacted the law namely University Grants Commission(for short 'UGC') Act, 1956. Further, in List-III i.e. in concurrent list of 8chedule-7,Entry No. 25 is in respect of education including technical education, medical education and universities, but this entry is subject to the provisions of Entry Nos. 63, 64, 65 and 66 of List-I. These entries are as under : <(63. The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the _527 [Delhi University; the University ^iXilii^SiBiiSS^ ,...';:.^;3i:l;l-:: established in pursuance of article 371E;] any other institution declared by Parliament by law to be an institution ofnational importance. 64. tnstitutions for scientific or technical education financed by the Government of India wholly or in part and declarei by Parliament by law to be institutions of national importance. 65. Union agencies and institutions for- (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection ofcrime. 66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." Therefore, the law made by the Union in respect of Entries No. 63 to 66 of List-I of Schedule-7 is binding on the k8tate and therefore cannot make any law contrary to the law made by the parliament in respect of those entries. 4. The UGC Act was enacted with the following objects. 1. 'The Constitution of India vests Parliament with exclusive authority in regard to 'co- ordination and determination of standards in institutions for higher education or research and scientiflc and technical institutions'. It is obvious that neither co-ordination nor determination of standards is possible unless the Central Government has some voice in the determination of standards of teaching and examination in Universities, both old and new. It is also necessary to ensure that the available resources are utilized to the best possible effect. The problem has become more acute ,y^^K:s%^. C"fi .% 1 '^ \0\ A .yj^ recently ori account of the tendency to multiply Universities. The need for a properly constituted Commission for determining and allocating to Universities funds made available by the Central Government has also become more urgent on this account. It is therefore proposed to establish a University Grants Commission as a corporate body which will inquired into the financial needs of Universities and allocate and disburse grants to Universities for any general or specified purpose. The Commission will also have the power to recommend to any University the measures necessary for the reform and improvement of University education and to advise the University concerned upon the action to be taken for the purpose of implementing such recommendation. The Commission will act as an expert body to advice the Central Government on problems connected with the co-ordination of facilities and maintenance of standards in Universities. The Commission in consultation with the University concerned, will also have to power to cause an inspection or inquiry to be made of any University established by law in India and to advice the University on any matter which has been the subject of an inquiry or inspection. The Commission shall also advise, whether such advise is sought, on the establishment of new Universities. The Bill also seeks to restrict the use of the word 'University' or the power to confer degrees, ete., to institutions established as such by law in India or to institutions established as such by law in India or to 'UOROnj^SUT 9AT§ O^ p9^09dX9 ST 9q qOTL[M UT U0p"60np9 jo qouBjq OL[: o^ PJB§QJ §uiA^q '^TSJQATUH oq^ jo JJB^S §UTL[OB^ 9q^ O^ p9^UTOddB ^q o^ uosjod AUB jo pojmboj sq ^uBmpjo ppoqs y3\^ suopBOijHBnb oq^ §muy9p (9 ^ UOT^OQS JO ^) QSUBp J9pUU UOTSSTUJUJOQ 9q^ Aq p9ZTU§oo9j sq ABUI qoiqM suopn^psui jo ssBp jo suopn^psm Qq^ SmXjpQds (p :uoTSSimuioo QL[^ Aq pQ^uioddB SQQAo^dme QL[^ jo QOTAJQS jo suopTpuoo pu^ smjo^ a^SmAjTOods (o f5 UOpOQS j^pun uoTssimmoQ ^q^ WM P^^BTOOSSB 9q A-em suosj^d qoiL[M joj s^sodjnd QL[^ PUB qoiqM m jouuBm oq^ §up^n§oj (q ^B9J9L[^ sssmsnq Suponpuoo joj 9jnp9oojd sq^ pua uoTssTmmoo sq^ jo s§up99m sq^ gupB^nSQj (•e -joj suoT^"ejn§9j9^am o^ oon 9il; sj9Modm9 qoiqM ^oy OOH J° 9S uop^^S m ^P^ S-BM UOTSTAOjd 9L[^ JO 9UO <S^09[qO 9L[^ TUJI^J O^ <9JOJ9J9iqj^ "9 -^^ „•3^92^0 IBTOTJJO 9^ UT uopBoypou B Suinssi Aq HTg siq^ jo esodjnd 9q^ JOJ A^TSJQATUfl B 9q O^ UOT^B3np9 J9L[§TL[ joj uopn^psm AUB ojBp^p o^ ^UQmujQAOO ^J^UQQ 9L[^ UI p9^S9A ST J9MOd <S9l^T8J9ATUfl ^ou 9JB L[OTL[M uopBonpQ J9q§iqjo suopn^sui o^ A^ddB ^ou op nig ^q^ jo suoisiAOjd 9^ ^IHM •Xpoq Q^BJodjoo B jo ^npTATpuT w8 Aq suoisiAOjd Qssq^ jo UOpU9ABJ^UOO JOJ ^"BUQd B SQpTAOjd pUB ^UQm-BnJBd jo ^QV u^ ^q os op o^ p9j9Modui9 suopn^psui s •17 .^'s^:' % 'VVi&. &' A. ^'..J :^ ^tei^i-"fj 6 f) defining the minimum standards of instruction for the grant of any degree by any University; g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities. h) regulating the establishment of institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions; i) specifying the matters in respect of which fees may be charged, and scales of fees in accordance with which fees may be charged, by a college under sub-section (2) ofsection 12A; j) specifying the manner in which an inquiry may be conducted under sub-section (4) of section 12A.] v°^ 6. Accordingly, the UGC made regulations namely UGC (MINIMUM QUALIFICATIONS REQUIRED POR THE APPOINTMENT AND CAREER ADVANCEMENT OF TEACHERS IN UNIVERSITIES AND INSTITUTIONS AFFILIATED TO IT) (3RD AMENDMENT), REGULATION 2009. The said amendment came into force on 11.07.2009^ according to which, the following paragraphs have been substituted: "NET/SLET shall remain the minimum eligibility condition for recryitment and appointment of Lectures 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 beexempted from \0^ ! { ^ •'•;^^";' ^' ......^^" the recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/ Institutions." 7. However, the State of Chhattisgarh has made the rules i.e. Chhattisgarh Ucchha Shiksha (Samvida Seva) Niyam, 2010 (for short 'the Rules, 2010?) by order and in the name of Governor of Chhattisgarh, which came into force from 15.06.2010. These Rules are purely meant for the purpose of appointment on contractual basis. The eligibility and qualifications for appointment given in Rule 6 are as under : U6. Eligibility and qualifications for appointment- 1. The candidates must have obtained a post graduate degree in the relevant subject with atleast 55% marks or an equivalent degree from an Indian University or a Foreign University. There shall be a relaxation of 5% marks for Scheduled Caste and Scheduled Tribes applicants. 2.Must have cleared the eligibility test (NET) conducted by UGC or CSIR or SET examinations conducted by the State Government. Provided that the candidates having Ph.D. Degree shall be exempted from clearing the above examination and they shall be eligible for teaching at under graduate and postgraduate level. Provide further that the candidates having M.Phil Degree shall be exempted from clearing the above examination and they shall be eligible for teaching at under graduate level only. Is i ...i^^ ^r" -.,..-^3 f ' ^y 1&. i \^ f. ^|%; .i. '^A^y^/ Note: (a) The above essential qualifications Hiust have been acquired on or before the last date of submission of application form. Educational Qualifications acquired after the submission of application form shall not be entertained and permission for making any correction in the application form shall be given, once it has been sent. (b) In case of non availability of NET/SET/Ph.D/M.Phil candidates in Tribal sub project area selection shall be made based on the merit list prepared on the basis of marks obtained at post graduate level.w 8. Hon'ble Supreme Court in Prem Chand Jain and another Vs. R. K. Chhabra { AIR 1984 SC 981} in paragraph 8 observed as under : "8. 'Education including universities was a State subject until by the 42nd Amendment of the Constitution in 1976, that entry was omitted from the State list and was taken into entry 25 of the Concurrent list. But as already pointed out the Act essentially intended to make provisions for the coordination and determmation of the standards in universities and that, as already indicated, it squarely covered under entry 66 of list I. While legisladng for a purpose germane to the subject covered by that entry and establishing a University Grants CommissiQn Parliament considered it necessary, as a regulatory measure, to prohibit unauthorized conferment of degrees and diplomas as also use of the word <university? by institution which had not been either established or incorporated by special legislation. .As long as the legislation is within the permissible field in pife and substance, objection would not be entertained merely on the gs^s y^' ';''7.;-...' ^^•^ \oG. I ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond it. In a serie's of decisions this Court has opined that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to anofher legislature. 9. Hon?ble Supreme Court in Osmania University Teachers Association Vs. State of Andhra Pradesh and anofher { AIR 1987 SC 2034), wherein the question as to the Constitutional validity of the Andhra Pradesh Commissionerate of Higher Education Act, 1986 was involved as to whether the enactment falls within Entry 66, List I or Entry 25, List III - Concurrent List of the Seventh Schedule to the Constitution, in paragraphs 23 and 24 Hon'ble Court held as urider : (<23. It will be seen that the Commissionerate has practically taken over the academic programmes and activities of the Universities. The Universities have been rendered irrelevant if not non-entities. It is apparent from this discussion that the Comissionerate Act has been drawn by and large in the same terms as that of the U.G.C. Act The Commissionerate Act, as we have earlier seen' also contains some more provisions. Both the enactments, however, deal with the same subject-matter. Both deal with the co-ordination and determination of excellence in the standards of teaching and examination in the Universities, Here and there, some of the words and sentences used in the Commissionerate Act may be different from those used in the U.G.C. Act, but M;:,\ 10 \^ 10. nevertheless, they convey the same meaning. It is just like referring the same person with different descriptions and names. The intention of the legislature has to be gathered by reading the statute as a whole. That is a rule which is now firmly established for the purpose of construction of statutes. The High Court appears to have gone on a tangent. The High Court would not have fallen into an error if it had perused the U.G.C. Act as a whole and compared it with the Comissionerate Act or vice versa. 24. In Prem Chand Jain v. R. K. Chhabra, (1984) 2 SCR 883: (AIR 1984 SC 981) this Court has held that the U.G.C. Act falls under entry 66 of List I. It is then unthinkable as to how the State could pass a parallel enactment under entry 25 of ListIII, unless it encroaches entry 66 of List I. Such an encroachment is patent and obvious. The Commissionerate Act is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative. 9) In University of Delhi Vs. Raj Singh Others { 1994 Supp (3) SCC 516 } the respondent had applied for the post of lecturer in Commerce in three colleges affiliated to the Delhi University. He was not called for interyiew. He filed a writ petition saying that the appellant/University ought to have mentioned in the advertisement that candidates should have passed the test prescribed by the UGC (Qualifications required of a person to be appointed to the teaching staff of a ^University and institutions affiliated to it) Regulations, 1991. The regulations were held valid and obligatory by the High Court and the appellant/Delhi University was directed to select Lecturers for appointment in itself and in its affiliated /^ 11 v^^ "c'>^? "'-^?^ colleges, strictly in accordance with the said Regulafions. On appeal, Hon'ble Supreme Court in paragraph 19 held as under: a 19. The Delhi University Act was on the statute book when the UGC Act was enacted by Parliament under Entry 66 of List I. It must be assumed that Parliament was aware of the provisions of the Delhi University Act when it enacted the UGC Act, particularly because the power to enact legislation concerning the Delhi University lay with Parliament under Entry 63 of List I. The Delhi University and other Universities covered by Entry 63 were consciously made subject to the regulation of the UGC insofar as coordination and determination of standards were concerned. This was made explicit by the definition of University in Section 2(f) oftheUGC Act. To take any other view would be to make otiose, qua the Universities covered by Entry 63, not only the UOC Act but Entry 66 itself. The argument that Section 2(f) of the UGC Act defining 'University' had to be read not with reference to the UGC Act as a whole but only with reference to such provisions of the UGC Act as deal with funding must be rejected. If there were merit in the argument that Entry 66 operated only vis-a-vis institutions other than those mentioned inEntry 63, the UGC Act in its entirety would not apply to the Delhi University and the Delhi University would, consequently, not be entitled to receive any grant thereunder. It is for this reason, to avail the grant but shed the obligation under the UGC Act, that the argument has been so cautiously advanced. ?? 11, Hon'ble Supreme Court in University of Delhi Vs« Raj Singh Others (supra), having considered the ambit of Entry 66 which was considered in Osraania University Teachers /'^sy^ y "Wk. 'w '"•^•'^t^^ 12 \^ 12. Association Vs. State of Andhra Pradesh and another (supra), held in paragraph 21 as under: "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 recognized 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 servre the purpose intended, namely, to ensure that all applicants for the post of lecturer, from whichever University they may have procured the minimum qualificafoiy degree, must establish that they possess the proficiency required for lecturers in all Universities in the countiy. This is what clause 2 of the said Regulations mandates, thus : a No person shall be appointed to a teaching post in University ....in a subject if he does not fulfill the requirements as to the qualifications for the appropriate subject as provided in Schedule I. " The first provision to clause ...............................upon by the said Regulations " Hon'ble Supreme Court in Prof. Yashpal and another Vs. State of Chhattisgarh & others { (2005) 5 SCC 420 held that having regard to the constitutional scheme, in order to ensure that the enactment made by Parliament, namely, the UGCAct, is able to achieve the objective for which it has been made and as the UGC is able to perform its duties and responsibilities, a State enactment does not come in conflict •^'^- 13 ^.; ^ ^^^" |»»* ^ \\° with the Central legislation and create any hindrance or obstacle in the working ofthe latter. 13. Hon'ble Supreme Court in Annamalai University Vs. Secretary to Governinent, Infonnation and Tourisni Department and others { (2009) 4 SCC 590 } has held that the UGC Act was enacted by Parliament in exercise of its power under Entry 66 of List I of Schedule VII to the Constitution whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of ListIII thereof. The question of repugnancy of the provisions ,of the said two Acts, therefore, does not arise. It is true that the Statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalize educational opportunities. The system was rigid inter alia in respect of attendance in classrooms. Combinations of subjects were also inflexible. However, in the matter of ensuring the standard of education, the alternative system envisaged under the Qpen University Act was not in substitution of the formal system. The distinction between a formal system and an informal system is in the mode and manner in which education is imparted. The UGC Act was enacted for effectuating coordination and determination of standards in uniyersities. 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. 14 v\\ 14. A bare reading of proviso to above Rule 6 shows that the candidates having M.Phil Degree shall be exempted from clearing the NET/SET examination and they shall be eligible for teaching at pre-graduate level only. This is nof in consonance with the regulations made by the UGC under Section 26, as quoted above. However, during the course of argument, we have been informed by the learned Deputy Advocate General Shri Harit, appearing for the State, as per the instructions, that the examination for regular appointment has already been conducted and result in respect of some subjects have also been declared and for some subjects, it is under process. 16. Therefore, we are of fhe opinion that, for making contractual appointment, the provisions ofRules, 2010, as quoted above, should be amended and be kept in consonance with the UGC norms laid down in the Regulation, 2009, as amended in 2009. But, at this time, at the midst of the session, we do not want that the education in the State should be disturbed. Therefore, till end of the current session, if any contract appointment has already been made in accordance with the Rules, 2010 in the State of Chhattisgarh by the State Government, it is open for the State Government to continue such appointments. But, for the next sesslon, if it is necessary to make contract appointments, the same shall be made strictly in accordance with the nornis fbced by the UGC in accordance with the Regulations, made under 8ection 26 of the UGC Act. 15 •\\^- 16. The above provision, contrary to the UGC norms, will no more remain effective after the current session is over and in case the amendment is not made according to the above directions, whatever norms fb<ed by the UGC shall be followed through the regulations. 17. However, we feel that system of ad-hoc appointment or contract appointment in Higher Education should be minimized, but, if it is not possible and there is urgency and stop gap arrangement of appointments are necessary, the same may be made in accordance with the existing rules for which we have issued a direction to amend for the next session, in accordance with the UGC norms. 18. With the above observation and direction these writ petitions stand disposed of. Interim relief granted earlier stand discharged. 19. In the facts and circumstances of the cases, there shall be no order as to costs. Sd/- I.M. Quddusi Judge Sd/- N.K. Agarwal Judge Sahu/ Thal<ur