* THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.A.Nos. 1274 and 1275 OF 2005 W.A.No. 1274 of 2005 % Dated 20-09-2005 # Bunga Padmaja. …. Petitioner Vs. $ Miss. P. Lalitha Kumari and four others. …. Respondents ! Counsel for the Petitioner: Nooty Rammohan Rao ^ Counsel for the Respondents: G.P. for Higher Education <GIST: > HEAD NOTE: ? Cases referred THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.A.NOS.1274 AND 1275 OF 2005 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) Aggrieved by the orders passed in W.P. No. 22242 of 2001 and 3300 of 2002 dated 24.06.2005, W.A. Nos. 1274 of 2005 and 1275 of 2005 are filed by the 4th respondent in the writ petition. W.P. No. 22242 of 2001 and W.P. No. 3300 of 2002 were filed to declare the proceedings dated 10.01.2002 whereby the 3rd respondent college was directed to issue appointment orders to the 4th respondent as arbitrary and illegal. Both the appellant and the 1st respondent belong to the Scheduled Castes. While the 1st respondent is a Postgraduate in Zoology with 67% marks, B.Ed in Biological Science with 69% marks and has a post-graduate diploma in costal aqua culture with 65% marks, the appellant passed his MSc. in 1st class from the Andhra University in 1991 with 60% marks. He also obtained his M.Phil degree from Andhra University in 1993 (prior to 31st December 1993). The 3rd respondent college issued notification, dated 04.06.2001, published in “Eenadu” on 08.06.2001 and “Indian Express” on 10.06.2001, inviting applications for clearing backlog vacancies reserved in favour of the Scheduled Castes and the Scheduled Tribes. Among the posts notified, to be filled up, was the post of lecturer in Zoology. Since the subject matter of dispute in the writ appeals revolves around the qualifications and the scale of pay attached to the post of lecturer in Zoology it is necessary that these clauses in the notification are extracted: Qualifications: (1) First or Second Class Master’s Degree in the relevant subject with a minimum of 50% marks. (2) A pass in National Eligibility test (NET) or SLET. Scale of pay: UGC Scale of pay will be given to those who passed NET/SLET. Others will be paid State Scale of pay. The Government, in G.O.Ms. No. 214 dated 08.05.2001, made adhoc rules in exercise of its powers under Article 309 of the Constitution of India. The adhoc rule provides that, notwithstanding anything contained in the A.P. State and Subordinate Service Rules and the Special Rules or any other Rules governing the recruitment procedure adopted by various recruitment agencies for various categories of posts by direct recruitment, the method of selection by written examination and Interview (oral tests), for appointment by direct recruitment for filling up of backlog vacancies for Scheduled Castes and Scheduled Tribes in all categories of posts, be relaxed and that selection for such limited recruitment of Scheduled Castes and Scheduled Tribes be made on the basis of the marks obtained in the qualifying examinations waiving the requirement of a written examination and interviews to fill up the backlog vacancies. Thus the entire basis of selection, for appointment to the backlog vacancy in the post of lecturer of Zoology in the 3rd respondent college, was only the marks obtained in the qualifying examination. The Government had earlier issued G.O.Rt.No. 1599 dated 07.11.1997 wherein, after careful consideration, it had directed that the lecturers, appointed by direct recruitment or by promotion from the category of in-service junior lecturers, who possess 55% marks in their Master’s degree and had submitted their Ph.d thesis or had passed in the M.Phil examination by 31.12.1993, be exempted from passing the National Eligibility Test (NET) for getting eligibility of the Revised University Grants Commission 1986 scales of pay. While the appellant, having obtained 60% marks in her Post graduation and an M.Phil degree prior to 31.12.1993, satisfied the requirements prescribed in G.O.Rt. No. 1599 dated 07.11.1997, and as such was exempted from passing the NET examination for getting eligibility for the revised UGC pay scales, the writ petitioner-1st respondent was not. The Director of Collegiate Education issued proceedings dated 25.09.2001, referring to the earlier orders of the Government in G.O.Rt. No. 1599 dated 07.11.1997, informing that NET/SLET candidates should be considered for selection, that if more than one person with NET/SLET was available then their merit in Post Graduation should be considered for selection, that if no NET/SLET candidates were available for selection, then candidates with the highest marks in Post graduation should be selected. The Director of Collegiate Education further clarified that in view of the government order, in G.O.Rt. No. 1599 dated 07.11.1997, candidates who possessed 55% marks in their Master’s degree, relaxable by 5% marks in the case of Scheduled Castes/Scheduled Tribes, and had passed M.Phil examination by 31.12.1993 shall be treated on par with candidates who had passed NET/SLET. A copy of this circular memo dated 25.09.2001 was marked to all the Regional Directors of Collegiate Education in the State and to all correspondents of aided colleges. While the appellant herein is a post graduate with 60% marks and had obtained his M.Phil degree prior to 31.12.1993, the 1st respondent- writ petitioner had obtained 66.50% marks in her post-graduation. She neither possessed an M.Phil degree nor did she pass the NET/SLET examination. The writ petitioner relies on G.O.Ms. No. 214 dated 08.05.2001, wherein marks in the qualifying examination is prescribed as the criteria for selection, to claim preference in selection on the ground that she had secured more marks in the Post graduate examination as compared to the appellant herein. The writ petitioner contends that, the direction issued by the Director of collegiate education in the impugned order dated 25.09.2001, was highly unjust, improper and should not be applied to her case, as the said instructions came into force after the 3rd respondent had issued a notification inviting applications for appointment to the posts of lecturers and after the entire selection process, to fill up the post of lecturer in Zoology in the 3rd respondent college, had been completed on 28.08.2001. The learned single judge, in the order under appeal, took note of the adhoc rule in G.O.Ms. No. 214 dated 08.05.2001 which exempted the requirement of holding a written examination and interview, for filling up of backlog vacancies. The Learned Judge also took note of the fact that the petitioner, who had obtained more marks in post graduation, was called for interview on 28.08.2001 and based on the interview and verification of the records, the 3rd respondent college had issued proceedings dated 01.09.2001 informing her that she was selected as lecturer in Zoology and that her selection was subject to approval of the Commissioner of collegiate education. The Learned Judge held that G.O.Rt. No. 1599 dated 07.11.1997 was a general circular issued by the Government, in exercise of its executive power, and while it applied both to general candidates and to the reserved category, there was no indication that these instructions were applicable to the limited recruitment held for filling up of backlog vacancies, and that it was only by virtue of the clarifications issued on 25.09.2001 that the Director of Collegiate Education had made G.O.Rt. No. 1599 dated 07.11.1997 applicable to the limited recruitment held for filing up of backlog vacancies. The Learned Judge held that the 1st respondent could not have issued such clarifications which was contrary to the orders in G.O.Rt. No.1599 dated 07.11.1997, and the said G.O. was silent with regards filling up of backlog vacancies. The learned Judge held that, while it was open to the government to issue executive instructions, it could not be done by way of a clarification by the 1st respondent, that the proceedings of the 1st respondent dated 25.09.2001 lacked jurisdiction and was liable to be quashed. The Learned Judge held that, even under the notification issued by the 3rd respondent college dated 04.06.2001, a pass in the National Eligibility Test or State Level Eligibility Test was not a minimum qualification or an additional qualification, that it was only incorporated in the notification for the purpose of giving U.G.C. pay-scales or the State pay-scales to candidates selected and that, even though the 4th respondent had admittedly passed M.Phil examination prior to 1993, and was exempted under G.O.Rt. No. 1599 dated 07.11.1997 from passing NET, it was only for the purpose of giving UGC scales, since a person who had not passed NET/SLET, but had passed the M.Phil examination before 31.12.1993, was eligible for the benefit of the revised U.G.C. pay-scales. The Learned Judge held that possessing an M.Phil degree was not a minimum requirement for appointment as a lecturer in Zoology but was a minimum requirement for being given UGC pay scales, and that the proceedings issued by the Director of Collegiate Education dated 10.01.2002, on the basis of the letter of the Regional Joint Director dated 15.10.2001, was without application of mind and as such the 4th respondent was not entitled to be appointed as a lecturer. The proceedings dated 10.01.2002 and the clarification dated 25.09.2001 were quashed and a direction was issued to the 1st respondent to approve the appointment of the petitioner as a lecturer in accordance with law. Sri Nooty Rammohan Rao, learned Counsel for the appellant, would submit that the notification, inviting applications for filling up backlog vacancies in the posts of lecturers in the 3rd respondent college, prescribes two essential qualifications. Firstly, a Master’s degree with 1st class or 2nd class with a minimum of 50% marks and the other, a pass in the National eligibility test/State Eligibility Test (NET/SLET), and that only such of those candidates, who satisfied both these qualifications, were eligible to be considered for appointment as a lecturer. According to the Learned Counsel, not one but both the qualifications were required to be satisfied to be eligible for appointment as a lecturer. Learned Counsel would contend that, on a reading of the notification as a whole, the prescription of payment of U.G.C. scales only to those who had passed NET/SLET and payment of State scales of pay to others, could only mean that if there were no candidates available, who possessed the qualification of a pass in the NET/SLET, then such of the candidates who possessed the other qualification, of a Master’s degree with a minimum of 50% marks, would be considered, in which event alone would the question, of payment of State scales of pay, arise. Learned Counsel would submit that the appellant possessed both the prescribed qualifications as the U.G.C. instructions specifically exempted candidates, who had obtained their M.Phil degree prior to 31.12.1993, from passing the National eligibility test. According to the learned Counsel, as there were no other candidates, including the writ-petitioner, who possessed both the prescribed qualifications, the appellant alone should have been considered for selection, and the mere fact that the petitioner had obtained more marks than the appellant in post-graduation was of no consequence. Learned Counsel would submit that the circular instructions of the Director of School education, dated 25.09.2001, merely clarifies the earlier instructions issued in G.O.Rt. No. 1599 dated 07.11.1997 and, since parity between candidates, who had passed their M.Phil examination prior to 31.12.1993 and those who had passed the NET examination, was prescribed in G.O.Rt. No. 1599 dated 07.11.1997, the mere fact that the circular memo dated 25.09.2001 was issued subsequent to the completion of the selection process was of no consequence. Learned Counsel would submit that, in as much as the prescription, in G.O.Rt. No. 1599 dated 07.11.1997, is for appointment to posts by direct recruitment, it cannot be held inapplicable to cases where direct recruitment is resorted to fill up backlog vacancies. Sri P. Venugopal, learned Counsel for the respondent-writ petitioner, on the other hand, would submit that the proceedings of the Director of Collegiate Education dated 25.09.2001 can, at best, be prospective in its application and since the selection process had already been completed prior thereto, no reliance could be placed on the said proceedings to disentitle the petitioner from being considered for selection and appointment as a lecturer in Zoology. Learned Counsel would submit that, since it was the Government which had issued the executive instructions in G.O.Rt. No. 1599 dated 07.11.1997, any clarification thereto could only be given by the government and not by the Director of Collegiate education. According to the learned Counsel, the very fact that the notification prescribes two different pay scales, 1) UGC scales of pay to those who had passed NET/SLET and 2) State scales of pay to others, was proof that the requirement of a pass in the NET or SLET was only for entitlement of UGC scales of pay. Learned Counsel would submit that, in accordance with the adhoc rule in G.O.Ms. No. 214 dated 08.05.2001, on a comparison of the marks in the qualifying examination (post graduation), since the writ petitioner had obtained higher marks than the appellant, it was she who was entitled to be selected as a lecturer and not the appellant herein. Before examining the rival contentions, it is necessary to note certain provisions of the University Grants Commission Act and the regulations made thereunder. As these provisions have been referred to in University Grants Commission Vs. Sadhana Chaudhary[1], it is useful to extract the relevant portions of the said judgment:- “……. The UGC has been established under the University Grants Commission Act, 1956 (hereinafter referred to as “the Act”) which was enacted by Parliament to make provisions for the coordination and determination of standards in universities. One of the functions entrusted to the UGC under the Act is to recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation [Section 12(d)]. The UGC has been empowered to make regulations consistent with the Act and the rules made thereunder defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instruction. [Section 26(1)(e)]. In exercise of the powers conferred by Section 26(1)(e), the UGC made the University Grants Commission (Qualifications Required of a Person to be Appointed to the Teaching Staff of a University and Institutions Affiliated to it) Regulations, 1982 (hereinafter referred to as “the 1982 Regulations”) whereby qualifications were prescribed for appointment to a teaching post in the University or in any of the institutions including constituent or affiliated colleges recognised under clause (f) of Section 2 of the Act or in an institution deemed to be a University under Section 3 of the Act. Under the 1982 Regulations the minimum qualifications prescribed for appointment to the post of University lecturers were (i) a Doctorate’s Degree or Research work of equally high standard; and (ii) a good academic record with at least second class (C in the seven-point scale) Master’s degree in a relevant subject from an Indian University or an equivalent degree from a foreign university. For college lecturers the minimum qualifications prescribed were (i) an M. Phil. degree or a recognised degree beyond the Master’s level or published work indicating the capacity of a candidate for independent research work; and (ii) good academic record with at least second class (C in the seven-point scale) Master’s degree in a relevant subject from an Indian University or an equivalent degree from a foreign university. In its report dated 23-3-1985, the National Commission on Teachers II, after observing that standards of performance varied from university to university, expressed the view that it must be ensured that every citizen aspiring to be a teacher at the tertiary level, i.e., a lecturer, qualified in terms of a national yardstick. The Commission recommended that the UGC should incorporate the passing of one of the national tests at least in Grade B+ on a seven-point scale in its regulations laying down the minimum qualifications of teachers and that this should come into force within two years. Thereafter, in 1986, the UGC appointed a Committee under the Chairmanship of Prof. R.C. Mehrotra (for short “the Mehrotra Committee”) to examine the structure of emoluments and conditions of service of University and college teachers and to make recommendations in this behalf having regard to the necessity of attracting and retaining talented persons in the teaching profession and providing advancement and opportunities to teachers of Universities and colleges. The Mehrotra Committee was of the view that, in order to ensure quality of new entrants to the teaching profession, all aspirants for the post of lecturer in a University or college should have passed a national qualifying examination since such a test would have the merit of removing disparities in standards of examination at the Master’s level between different Universities and, as a result, local influence would be minimised and the eligibility zone for recruitment would become wider. The Mehrotra Committee recommended the following minimum qualifications for appointment to the post of Lecturer: “(i) Qualifying at the National Test conducted for the purpose by the UGC or any other agency approved by the UGC. (ii) Master’s degree with at least fifty-five per cent marks or its equivalent grade and good academic record. The minimum qualifications mentioned above should not be relaxed even for candidates possessing M. Phil., Ph.D. qualification at the time of recruitment.” After examining the various recommendations contained in the report of the Mehrotra Committee and the recommendations made by the UGC, the Government of India prepared a scheme for revision of pay scales of teachers in the Universities and Colleges and other measures for maintenance of standards in higher education and, by letter dated 17-6-1987, the Government of India forwarded the said scheme to the Education Secretaries of all the States and Union Territories with a request to formulate detailed proposals for the implementation of the scheme on the lines indicated in the said letter. The said scheme was revised by the Central Government in 1988. The original scheme as well as the revised scheme required that only those candidates who, besides fulfilling the minimum academic qualifications prescribed for the post of Lecturer, have qualified in a comprehensive test, to be specially conducted for the purpose, will be eligible for appointment as Lecturers. In 1989 a conference of Vice-Chancellors was held under the auspices of the UGC and one of the major recommendations made in the said conference was: “The national level test to determine the eligibility for lecturers be conducted. When the State Government conducts such tests, while accrediting them caution be exercised.” Keeping in view the said recommendations the UGC made the 1991 Regulations which were notified vide notification dated 19-9-1991. The 1991 Regulations superseded the 1982 Regulations and prescribed the following minimum qualifications for the post of lecturers in universities and colleges: “Good academic record with at least 55% marks or an equivalent grade at Master’s level in the relevant subject from an Indian University or an equivalent degree from a foreign University. Candidates besides fulfilling the above qualifications should have cleared the eligibility test for lecturers conducted by UGC, CSIR or similar test accredited by the UGC.” By Circular dated 10-2-1993 the UGC granted exemption from appearing in the eligibility test to the following categories: 1. All candidates who have passed UGC/CSIR J.R.F. Examination. 2. All candidates who have already been awarded Ph.D. degree. 3. All candidates who have already been awarded M. Phil. degree up to 31-3-1991. 4. All candidates who will submit their Ph.D. thesis up to 31-12-1993. By Circular dated 15-6-1993 in respect of candidates falling in category (3) exemption from appearing in the eligibility test was extended to candidates who had been awarded M. Phil. degree up to 31-12-1992. By a notification dated 21-6-1995, the 1991 Regulations have been amended and the following proviso has been added below the requirement regarding clearing the eligibility test for appointment on the post of Lecturer: “Provided that candidates who have submitted Ph.D. thesis or passed the M. Phil. examination by 31-12-1993 are exempted from the eligibility test for lecturers conducted by UGC, CSIR or similar test accredited by the UGC.” Under Section 26(1)(e) of the University Grants Commission Act, the U.G.C. is empowered to make regulations prescribing the qualifications ordinarily required to be held by any person to be appointed as a teaching staff of the University having regard to the branch of education in which he is expected to give instructions. For appointment to a teaching post, in any institution including affiliated colleges, the 1991 UGC Regulations prescribed a good academic record with atleast 55% marks in post graduation. In addition, the candidate was required to clear the eligibility test for lecturers conducted by the U.G.C, CSIR or other similar tests accredited by the UGC. The 1991 regulations were amended, on 21.06.1995, exempting candidates, who had passed their M.Phil examination prior to 31.12.1993, from the eligibility test of lecturers (NET/SLET). I n University of Delhi v. Raj Singh[2], the Supreme Court observed:- “…….The ambit of Entry 66 has already been the subject of the decisions of this Court in the cases of the Gujarat University1 and the Osmania University2. The UGC Act is enacted under the provisions of Entry 66 to carry out the objective thereof. Its short title, in fact, reproduces the words of Entry 66. The principal function of the UGC is set out in the opening words of Section 12, thus: “It shall be the general duty of the Commission to take ... all such steps as it may think fit for the promotion and coordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities ....” It is very important to note that a duty is cast upon the Commission to take “all such steps as it may think fit ... for the determination and maintenance of standards of teaching”. These are very wide-ranging powers. Such powers, in our view, would comprehend the power to require those who possess the educational qualifications required for holding the post of lecturer in Universities and colleges to appear for a written test, the passing of which would establish that they possess the minimal proficiency for holding such post. The need for such test is demonstrated by the reports of the commissions and committees of educationists referred to above which take note of the disparities in the standards of education in the various Universities in the country. It is patent that the holder of a postgraduate degree from one University is not necessarily of the same standard as the holder of the same postgraduate degree from another University. That is the rationale of the test prescribed by the said Regulations. It falls squarely within the scope of Entry 66 and the UGC Act inasmuch as it is intended to co- ordinate standards and the UGC is armed with the power to take all such steps as it may think fit in this behalf. For performing its general duty and its other functions under the UGC Act, the UGC is invested with the powers specified in the various clauses of Section 12. These include the power to recommend to a University the measures necessary for the improvement of University education and to advise in respect of the action to be taken for the purpose of implementing such recommendation [clause (d)]. The UGC is also invested with the power to perform such other functions as may be prescribed or as may be deemed necessary by it for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions [clause (j)]. These two clauses are also wide enough to empower the UGC to frame the said Regulations. By reason of Section 14, the UGC is authorised to withhold from a University its grant if the University fails within a reasonable time