g IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) wwP.rh )qi§%%%a&3 (PUBLIC INmEREST LITIGATION) PETITIONERS 1.DrAmnima Sharma aged abuut 32 years D/C Shri Y.K. Sharma R/O D-3 Vidyaup Nagar, Bilaspur, District Bilaspur (C.G.) Dr. Neeta Shrivastava xgged about 41 years W/O Dr. Sushil Shrivastava R/O A-ISS Agaya Nagar Bilaspur (Chhattisgarh) Smt. R. Vibha Rao W/O Shri R.J. Rao aged about 43 years R/O L-9 Vinoba Nagar Bilaspur (Chhattisgarh) VERSUS yl. State of Chhattisgarh through Secretary Department of Education /'DKS Bhawan, Raipur (C.G.) / I X 2. U.G.C. Grants Commission Bahadur Shah Zafar Marg, New Delhi — 110002 f f 3. Pt. Ravishankar University through Registrar Raipur (Chhattisgarh) V 4. Guru Ghasidas University through Registrar ilaspur (Chhattisgarh) ,/ f PETITION UNDER ARTICLES 226/227/6F THE CONSTITUTION OF INDIA é FOR ISSUANCE OF APPROPRIATE WRITE DIRECTIONS AND OTHERS : PARTICULARS OF THE PETITIONHRS :— As stated above in the cause title. f menM comrr OF cnnAmsGARn (mvmon BEncm Con-am Hon’bl shri Aji. atnaik, C.J., Hoha Sin-i uma inhn, J x WP. M1432 or 2003 Dr. Amnima Shanna and others Vs. State of Chhattisgarh and others Aggearance: Mr. Shanna, Kanak for Tiwai, ihe ptitioners Sr. Advocate with Mr. hateak r e. Mr. V.V.S. urthy, Deputy Advocate Gcneral, for the Statei respondent no. 1. Mr. AS. Gahaar, counsel for respondent no.2. a. ORDER (66.07.2005 The fouowing order has hem passed by Hon’ble Shri A. KPatnaik, C.J. (1) Petitioner no.1 hoids Postgraduate Degee in History. Petitioner no.2 is the Chairman of Educational Sub-Committee of the Municipal Corporation, Bilaspur. Petitioner No.3 is an advocate and at the time of wing Writ petition was the Chairman of the Municipal Corporation, Bilaspur. They have hled this Ptiblic Interest Litigation Iinder Article 226 of the Constitution of India challeng'ng the provisions of Chhattiegarh Higher Education Services Recruitment Rules 2002. AT mm3mm e P n’l Sum! Kr S M nv V \ (2) The case of the writ petitioners is that the University Grants Commission has &amed regulations on minimum qualificatian for Appointment and Career Advancement of Lecturers, Readars and Professors in Universities and Calleges under section 26 read with Section 14 of the University Grants Commission Act 1956 bv notmcation issued in March 2000 and in the said regulations it has been prescribed that for appointment as a Lecturer, a candidate should have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test wated by the UGC such as State Level Elig‘bility Test (SLET). But under the Chhattisgarh Higher Education Services Recruitment Rules 2002. candidates who have not passed NET; SLET can be considered for appointment to the post of LecturerfAssistant Professor in different colleges situated in the State of Chhattisgarh Whereas petitioner no.1 who has passed NET is not being considered for the post of LecturerjAssistant Professor in the colleges of Chhattisgarh. (3) Mr. Kanak Tiwari, learned counsel for the petitioners submits that a plain reading of Chhattisgarh Higher Education Service Recruitment Rules 2002 as notihed by the notihcation dated 9th July 2002 would show that for assessing the merit of the candidates only two marks are added as grace marks, but there is no provision in the said Recruitment Rules 2002 that a candidate will not be eligible for consideration at all for appointment to the post of LectureriAssistant Professor in Chhattisgarh unless he has passed NET or SLET. In support of his contention, Mrfl‘iwari, cited a decision of the Supreme Court in the case of Jatinder Singh —Vs- Gumeet Sing]! Sidhu and others (2001} 6 SCC 508 in which the Supmme Court has held that clearing of eligibility test viz“ NET conducted by UGC or other similar tests as specmed in the unimsity circular dated 18.5; 1999 was absolutely necessary. He also cited the decision of the Supreme Court in Brahmo samai Educution Socie_ty and others —Vs- State o[ FEB. ' and others reparted in (2004; 6 SCC 224 in which the Supreme Court has inter-alto held that only a person who has qualified NET or SLET will be elig'ble for the appointment as Lecturer in an aided institution in View of the Regulations made in this regard by the U.G.C. (4) Mr.A.S.Gaharwar, learned counsel appearing for the University Grants Commission supported the contention of the petitioners and submitted that it will be clear from the aforesaid U.G.C. regulations, a copy of which has been produced before us by him that a candidate for a post of Lecturer should have cleared the eligibility test (NET; for lecturers conducted by UGC or c3112 or equivalent test accredited by the UGC. In this context, he referred to the clause 1.3.3 of the Annemre to the Notihcation of March 2000 made under section 26 read with section 14 of the University Grants Commission Act 1956 as well as the note appended thereto to show that NET shall remain compulsory requirement for the appointment as Lecturer even‘for the candidates having PhD. degee. He pointed out that in the said note as amended it is stated that a candidate who has completed M.Phil. degree ,4— or has aubmitted PhD. thesis to the Universitv in the concerned subject on or before 31'“ December 2002 i3 exempted mun apyearing for the NET examination and only in case such candidate faih to obtain Ph.D., he shall have to pass NET examination. Mr. Gaharwar further submitted that Section 14 of the Univereity Grant Commission Act, 1956 provides for the consequencea of failure of the Universities to comply with the recommendations of the University Grants Commission. He submitted that in the case of University 9f Dethi —-Vs- Raj Sing]: and others AIR 1995 S.C‘ 336 a question came up before the Supreme Court as to whether the Delhi University has to comply with the regulations made by the University Grants Commission prescribing the qualihoations for the post of Lecturer and the Supreme Court held that regulations made by the UGC in'this regard are not only valid, but mandatory and the Delhi University was obliged under the law to comply with the sam e. (5] Mr. Murthy, learned Deputy Advocate General for the State of Chhattisgarh submitted that the Chhattisgarh Higher Education Recruitment Rule 2002 has been in the meanwhile amended by a noti‘dcation dated 29““ April 2005 and it has been provided in the notihcation under the amended sub-rule (3) of Rule 5 of the Chhattisgarh Higher Education Recruitment Rules 2002 that mst of all consideration shall be made of the applications of NETISLET passed candidates and in case of non—availability of such candidates, the applications of other candidates shall be considered. He submits that in view of the aforesaid amendment brought about the not1£cation dated 29th April 2005, this writ patih’on no longer sunrives. {61 MnKanak Tiwan’, learned counsel, however, submits that it appears &om the amendmmt brought about the‘notiEmtion dated 29th April 2005 that the candidates whould be given 25 marit marks for passing the NET} SLET aamination, but the case of the petitioners is that a candidate is not dig'bls far consideration for the post of Lecturer}Assistant Professor in a college of Chhattisgarh unless he passes tho NETISLET examination. (7} The notmcation dated 29th April 2005, by which sub—rule (3) of Rule 5 of the Chhaitisgarh Higher Education Services Recruitment Rules 2002 has been substituted, is quoted herein-below: a4*aaar “##gi #g/i a 41 In-‘ we e Raipur, the 29“ dpril 2005 HQTIFICATION No,F-1-2l200458.-ln exercise of the powers conferred by the proviso re Amcle 309 of me Constituiion of lndia‘ Governor of Chhamogam makes rho following amb'ridmems in the Ch‘nattisgarh Higher Eouoaiion Services Reoroiimeni Ruies‘ 2002 namely : AMENDMENT in the said role, - For sub-ruie (3} of rule 5 the foiiowing suoruie shall be suhsiiluled namely :- For preparing Merit List there shall be maxi mum of 100 marks and the criteria shall be as follows — (a) for passing NET or SLET examination _ - 25 merii marks (b) for marks oblalneo ai degree lever lhere shall be — 25 merit marks For 50%!) marks, 51% to 70% one mark for each percentage and for obtaining more than 70 marks 05 bonus marks shall be awarded (for awarding bonus marks 70.5% or above has lo be obtained), (c) For marks obtained at post graduate level ihere shall be 30 merit mar is a K(‘ Fur 55% - 5 marks: from 56% to ?5% une mark {or each percentage and for obtaining above 75% maiks, O5 bonus maiks sha“ be awarded (for awarding bcnus matks 75.5% and above has to be obiained. For frve months or more in each year in the Govt. Coueges onry O1 merit marks shali be awarded upto a maximum of G5 marker Totaf 100 merit marks Note: (1) Firstofall, consideration shaiibemadeonthe application of the NEr/SLEf passed candidates. in each of non—availabiiiiy of such candidates, the application of other candidates shalt be considered. (2) A relaxation of 5% in the minimum marks obtained at graduate and post graduate level shalt be given to the scheduied caste and scheduled tribe candidates in edtmtional quaiifrcations of the recruitment rules. By order and in the name of Governor of Chhattisgarh. (SR. Brahmne) Deputy Secretary It appears mm the pmvisions of Sub-rule (3) of Rule 5 as substituted by the afoxesaid notidcation dated 29th April 2005 that for preparing merit list, there shalt be maximum of 100 marks and for passing in NE’I‘ISLET examination 25 merit marks would be girl‘en to a candidate. Note (1) appended to sub-rule (3) of'Rule 5 as substituted by the notmcation dated 29th of Apn‘l 2005, however, provides that 111st of all, consideration shall be made of the applications of NET] SLET passed candx'iates and in case of non-availabiliw of such candidates, the. applican'ons of other candidates shall be considemd. A reading‘of the aforesaid two pmvisions in sub— rule (3) of Rule 5 would mean that hem amongst the caitdidates who have passed NET] SLET examinations, a merit rF« (d) Far MPhil. degree 05 merit marks (e} For PhD. degree 10 merit marks (f) For teaching experienoe - 05 men‘t marks list shan be pmparcd in accordance with the provisions of Sub- rulc (3) of Rule 5' and on the basis of such merit list, the NEVI‘] SLET passed candidates will be selected for appoimment to the post of Lecturer/Assistant Professor and after such consideration of the NET] SLET passed candidates is over on the basis of men't, if there are more posts available and no NET/SLET passed candidates axe at all available, candidates who have not passed NET/SLET can be considered on the basis of their merit as assessed in accordance with sub-rule (3) of Rule 5 of the Rules as substituted by the‘non'ncation dated 29m of April 2005. (8) The question still remains as to what is the legal consequence of the recruitment of a candidate who has not passed NET] SLE’I‘ examination and who is not covered by the exceptions provided in the Note as amended in the annexure to the Nou‘hcan'on of March 2000 made under Section 26 read with Section 14 of the said Act. This has been answered by the Apéx‘ Com in the case of University ofnew -Vs- my sing» and others (supra). p The relevant portion of the said judgment is quoted herein—below: “It is now appropriate to clarify the direction that the Delhi High Court issued in allowing the writ petition. It held that the notihcation dated 19th September, 1991, by which the said Regulations were published, was valid and mandatory and the Delhi University was obliged under law to comply therewith. The Delhi ,University was directed to select lecturers for itself and its allilialed and suhoxdinate colleges strictly in accordance with the notihcation. Put shortly, the Delhi University is mandated to comply with the said Regulations. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its amliamd colleges one who ”a. ‘ has clcared the test prescribed by the said Regulations: or it may seek prior approvai for the relaxation of this requirement in a speci&: caee; or it may appoint a's. lecturer one who does not meet this réquimmcnt Without having iilst obtained the UGC’S approval, in which event it would, if it failed to Show cause for its faiiure to abide by the said Regulations to the satisfach'on of the U.G.C., forfeit its giant mm the U.G.C. If, ‘4; ‘ _ however, it did show cause to the satisfaction of the U.G.C., it not only would not forfeit its grant but the appointment made Without obtaining the U.G.C’s prior approval wouldrstand regularized.” It will be clear from the aforesaid Judgment of the Supreme Court in which the provisions of the University Grants Commission Act 1956 includm Secu’on 14 thereof and the Regulations made by the University Grants Commission were considered at length and it was held that a Lecturer who does not satisfy. the eligibility conditions as laid down in the Regulations made by the U.G.C., may be appointed with the pn‘or approval for relaxation of the requirement in a specidc case or when the appointment to the post of Lecturer is made who does not satisfy the elig‘bility condition without Hist ohtaining such approval nom the U.G.C., a show cause will be issued by the U.G.C and in case of failure to abide by the show cause or in case the show cause is not to the satisfaction of the U.G.C., action by way of withdrawal of grant in accordance with the provisions of the University Grants Commission Act 1956 may be taken by the U.G.C. (9) With the aforesaid declarations and directions, this writ petition stands disposed of. _ Sd/_ Sdl- Sunil Kumar Sinha Chief Justice Judge