IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.01.2008 CORAM THE HONOURABLE MR. A.P.SHAH, THE CHIEF JUSTICE and THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN W.A.No.585, 1305 and 1322 of 2006 and M.P.No.1214 of 2006, 1 and 2 of 2006 and 1 to 3 of 2006 W.A.No.585 of 2006 The Secretary, Kamaraj College, Thoothukudi-629 003. ... Appellant / 5th Respondent vs 1. Dr.S.Arulmani, Reader and Head of Department of Tamil, Kamaraj College, Thoothukudi-628 003. ... ISt Respondent/ Petitioner 2. Government of Tamil Nadu rep. by its Secretary to Government, Department of Higher Education, Fort St. George, Chennai-600 009. 3. The Director of Collegiate Education, College Road, Chennai-600 008. 4. The Registrar, Manonmaniam Sundaranar University, Tirunelveli. 5. Regional Joint Director of Collegiate Education, Thirunelveli Region, Thirunelveli. 6. Dr.J.Mohanraj, Reader, Department of Zoology, Kamaraj College, Thoothukudi-628 003. ... Respondents/ Respondents W.A.No.1305 of 2006 Dr.J.Mohanraj, Reader, Department of Zoology, Kamaraj College, Thoothukudi-628 003. ... Appellant / 6th Respondent https://hcservices.ecourts.gov.in/hcservices/ vs 1. Dr.S.Arulmani, Reader and Head of Department of Tamil, Kamaraj College, Thoothukudi-628 003. ... Respondent/ Petitioner 2. Government of Tamil Nadu rep. by its Secretary to Government, Department of Higher Education, Fort St. George, Chennai-600 009. 3. The Director of Collegiate Education, College Road, Chennai-600 008. 4. The Registrar, Manonmaniam Sundaranar University, Tirunelveli. 5. Regional Joint Director of Collegiate Education, Thirunelveli Region, Thirunelveli. 6. The Secretary, Kamaraj College, Thoothukudi-629 003. ... Respondents/ Respondents W.A.No.1322 of 2006 The Association of Management of Private Colleges rep. By its President and Secretary, Dr.Anchami, Kongunadu Arts and Science College (Autonomous) Coimbatore-641 029 ...Appellants./ Petitioner Vs 1. The Secretary, University Grants Commission, Bahadursah Zafar Marg, New Delhi-110 002. 2. The University of Madras rep. By its Registrar, Chepauk, Chennai-600 005. 3. The Registrar, Manonmaniam Sundaranar University, Tirunelveli. https://hcservices.ecourts.gov.in/hcservices/ 4. Madurai Kamraj Manonmaniam Sundaranar University Teacher's Association (MUTA), rep. By its President, Registered Office at No.6 Kakka Thope, Madurai. 5. Association of university teachers Tamilnadu rep by its General Secretary 134 Ramlane , Nungambakkam, Chennai-34. R5 impleaded as party respondent vide order of Court dated 11.9.2007 made in M.P.No.2/2006 ... Respondents./ Respondents Prayer:- Writ Appeal Nos.585 and 1305 of 2006 filed against the Order dated 10.03.2006 made in W.P.No.17630 of 2005 W.P.NO.17630/05:- Writ Petition filed under Article 226 of the Constitution of India seeking for issue a nature of writ of certiorarified mandamus calling for the records of the 5th respondent pertaining to Ref. 31/2005 dated 21.04.2005, quash the same and direct the 5th respondent to promote the petitioner as Principal and W.A.No.1322 of 2006 filed against the Order dated 12.09.2006 in W.P.No.25433 of 2006 Writ Petition filed under Article 226 of the Constitution of India seeking for issue a writ of certirarified mandamus calling for the records relating to (i) The Communication No.A-II/ASO-1/PRES.QLN/2004/1924 dated 23.11.2004 of the 2nd respondent university and (ii) Communication dated 3.7.2006 by the Letter No. MSU/CD/OA/Gen/2002 issued by the 3rd respondent herein viz., the registrar, Manonmaniam Sundaranar University, Tirunelveli, pursuant to (iii) UGC Letter No. F. No. 3-1 (2000) (PS) dated 5.12.2005 and (iv) UGC Letter No. F.3-1/2000 (PS) dated 12.10.2004 (v) D.O.No.F3-1/2000 (PS) dated 4.4.2000 more particularly. 3-1-0 and 3.5.0 of the above said notification and quash the same and consequently direct the respondents herein to approve the appointment of teachers principals, professors and readers as hitherto done before. For Appellant in Mr.Vijay Narayan, S.C., for W.A.No.585/06 : M/s.M.Rathina Asokan For Appellant in W.A.No.1305/06 : Mr.K.Shakespere for K. Venkateswaran For Appellant in Mr.A.L.Somayaji, S.C. Assisted by K. Shakespere for W.A.No.1322/06 : M/s.K.S.Govinda Prasad. Mr.B.Ravi appearing for For Respondents in Mr.R.Subramanian for R1 W.A.No.585/06 : Mr.G.Sankaran, Spl.G.P., Education for R2, R3 and R5. https://hcservices.ecourts.gov.in/hcservices/ Mr.C.K.Chandrasekaran for M/s. Row and Reddy for R4 Mr.K.Venkateswaran for R6. Mr.B.Ravi appearing for For Respondents in Mr.R.Subramanian for R1 W.A.No.1305/06 : Mr.G.Sankaran, Spl.G.P. Education for R2, R3 and R5. Mr.C.K.Chandrasekaran for M/s. Row and Reddy for R4. No appearance for R6 For Respondents Mr.R.Krishnamoorthy, S.C., for W.A.No.1322/06 : M/s.P.R.Gopinath, for R1. Mr.Kandavadivel Doraisamy for R2 Mr.C.K.Chandrasekaran for M/s Row and Reddy for R3 Mr.R.Subramanian for R4 Mr.D.Hariparanthaman, for R5. J U D G M E N T V.RAMASUBRAMANIAN,J. In exercise of the powers conferred by Clauses (e) and (g) of sub section (1) of section 26 read with section 14 of the University Grants Commission Act, 1956, the University Grants Commission framed Regulations known as, "University Grants Commission (minimum qualifications required for the appointment and career advancement of teachers in Universities and Institutions affiliated to it) Regulations, 2000". These Regulations (hereinafter referred to as U.G.C. Regulations) prescribed (i) the qualifications for direct recruitment to the posts of Principal (Professors Grade and Readers Grade), Professor, Reader and Lecturer, (ii) career advancement to the Lecturers and (iii) the constitution of Selection Committees for selection to these posts. 2. The U.G.C. Regulations were forwarded to the Vice Chancellors of all the Universities and to the Education Secretaries of all State Governments in April, 2000. Since it came to the notice of the Commission that some Universities were not following the procedure prescribed under the Regulations, for the constitution of Selection Committees, the Commission sent a letter dated 12.10.2004 to all Vice Chancellors and State Governments. Based on these communications, the Syndicate of the University of Madras passed a Resolution on 08.11.2004 to strictly adhere to the U.G.C. Regulations and issued a circular dated 23.11.2004 to all the affiliated Colleges informing them of the same. 3. Similarly, the Manonmaniam Sundaranar University also issued a circular dated 03.07.2006 informing all affiliated Colleges that a Selection Committee as prescribed by U.G.C. Regulations, should be constituted. https://hcservices.ecourts.gov.in/hcservices/ 4. Challenging the aforesaid circular issued by the University of Madras dated 23.11.2004 and the circular of the Manonmaniam Sundaranar University dated 03.07.2006 and also challenging paragraph No.3.1.0 and 3.5.0 of the U.G.C. Regulations (which prescribe the constitution of Selection Committees for Lecturers and Principals in Private Colleges), the Association of Management of Private Colleges, came up with a writ petition in W.P.No. 25433 of 2006. 5. In the meantime, a person, by name, Dr.M.S.Arulmani, working as Reader and Head of the Department of Tamil in a Private aided College, by name, Kamaraj College, Tuticorin, challenged his non selection to the post of Principal of the College, in a writ petition in W.P.No.17630/05. His challenge, among other things, was on the basis that the selection was made by a Committee not constituted in accordance with the U.G.C. Regulations, 2000. 6. By an order dated 10.03.2006, the said writ petition W.P.No.17630 of 2005 filed by Dr.M.S.Arulmani against his non selection to the post of Principal, was allowed by a learned Judge, accepting his contention that the selection ought to have been made only by a Committee constituted in accordance with the U.G.C. Regulations, 2000. 7. As against the said order in W.P.No.17630 of 2005, the Kamaraj College, Tuticorin, filed an appeal in W.A.No.585 of 2006. Similarly, the candidate selected for the post of Principal, by name, Dr.J.Mohanraj, (whose selection was set aside at the instance of Dr.M.S.Arulmani) also filed an appeal in W.A.No.1305 of 2006. 8. In the meantime, the writ petition filed by the Association of Managements of Private Colleges, W.P.No.25433 of 2006, challenging the validity of the U.G.C. Regulations, 2000 was dismissed by another learned Judge, by an order dated 12.09.2006, following the ratio laid down in W.P.No.17630 of 2005 (in the case of Dr.M.S.Arulmani). Therefore, the Association filed an appeal in W.A.No.1322 of 2006 against the order in W.P.No.25433 of 2006. 9. Since one writ appeal arises out of a challenge to the U.G.C. Regulations and the other two writ appeals arise out of a challenge to the selection to the post of Principal in a Private aided College, in violation of the U.G.C. Regulations, all the three writ appeals were taken up together for disposal. 10. We have heard Mr.A.L.Somayaji, learned Senior Counsel appearing for the Association of Managements of Private Colleges (appellant in W.A.No.1322 of 2006), Mr.Vijay Narayan, learned Senior Counsel appearing for Kamaraj College, Tuticorin (appellant in W.A.No.585 of 2006), Mr.K.Shakespere, learned Counsel appearing for the candidate selected for the post of Principal (appellant in W.A.No.1305 of 2006), Mr.R.Krishnamurthy, learned Senior Counsel appearing for University Grants Commission, Mr.Kandavadivel Doraisamy, learned counsel appearing for the Madras University, Mr.C.K.Chandrasekaran, learned counsel for Manonmaniam Sundaranar https://hcservices.ecourts.gov.in/hcservices/ University, Mr.B.Ravi, learned counsel for R-1 in W.A.Nos.585 and 1305 of 2006, Mr.R.Subramanian, learned counsel appearing for the Teachers' Association (R4 in W.A.No.1322 of 2006), Mr.D.Hari Paranthaman, learned counsel for the Association of University Teachers and Mr.G.Sankaran, learned Special Government Pleader (Education). 11. Since the dispute raised in these writ appeals revolve around the validity of only one particular portion of the U.G.C. Regulations, 2000, it is necessary to look into the source and the broad framework of these Regulations, to understand their scope and reach. As stated earlier, these Regulations were issued by the Commission in exercise of the power conferred under Clauses (e) and (g) of sub section (1) of section 26 read with section 14 of the University Grants Commission Act, 1956. Section 26(1)(e) and (g) of U.G.C. Act, 1956, reads as follows:- 26. Power to make regulations.- (1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder.- (a) .......... (b)........... (c)........... (d)........... (e) 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 instructions; and (g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities." 12. Since the Regulations under challenge were framed with reference to Clauses (e) and (g) of section 26(1), they were compartmentalised, to cover three areas, viz., (a) the qualifications prescribed for direct recruitment to various posts, (b) career advancement and (c) the constitution of Selection Committees for appointments to various posts. While paragraph No.1.0.0 deals with the qualifications, paragraph No.2.0.0 deals with career advancement and paragraph No.3.0.0 deals with the constitution of Selection Committees. 13. The objections of the appellants in these writ appeals, are not with reference to the educational qualifications prescribed under paragraph No.1.0.0 of these Regulations nor to the career advancement prescribed under paragraph No.2.0.0. Their objection is only with reference to the mandate for the constitution of Selection Committees, spelt out in paragraph No.3.0.0. Even here, the https://hcservices.ecourts.gov.in/hcservices/ challenge of the appellants, is not to the contents of paragraph No.3.0.0 in entirety. Their challenge is restricted only to a portion of paragraph No.3.0.0, viz., paragraph No.3.1.0 (dealing with the post of Lecturers in Colleges) and paragraph No.3.5.0 (dealing with the post of Principal). 14. The learned Senior Counsel appearing for the appellants in all these appeals, conceded the position that there cannot be a challenge to paragraph No.1.0.0 of these Regulations, since it prescribes the minimum educational qualifications for appointment to various posts and also since the prescription of qualifications, fell entirely within the purview of the U.G.C. under Section 26(1) (e)(g) of the U.G.C. Act, 1956. Therefore, the appellants confined their challenge only to paragraph Nos.3.1.0 and 3.5.0 of the U.G.C. Regulations, which provide for the constitution of the Selection Committees as follows:- 3.0.0 Selection Committees recommended by the U.G.C. 3.1.0. Lecturer in a Private College. 1.Chairperson of the Governing Body of the College or his/her nominee to be the Chairperson of the Selection Committee. 2.The principal of the concerned College. 3.One Senior teacher/Head of the Department (of the concerned subject) preferably having not less than 10 years of services as a teacher. 4.Two nominees of the Vice Chancellor of the affiliating University of whom one should be a subject expert. 5.Two subject-experts not connected with the college to be nominated by the Chairperson of the governing body out of a panel of names approved by the Vice Chancellor. For Government Colleges, the State Public Service Commissions must invite three subject experts for which the State Public Service Commissions will involve the University in the selection. The Principal and Head of the Department should be necessarily included in the Selection Committee. The quorum for the meeting should be five of which at least two must be from out of the three subject experts. 3.5.0 For the Post of Principal 1.Chairperson of the Governing Board as Chairperson. 2.One member of the Governing Board to be nominated by the Chairperson. 3.Two Vice Chancellor's nominees, out of whom one should be an expert. 4.Three experts consisting of the Principal of a https://hcservices.ecourts.gov.in/hcservices/ College, a Professor and an accomplished educationist not below the rank of a professor (to be nominated by the Governing Board) out of a panel of experts approved by the Vice Chancellor. At least four members, including two experts, should constitute the quorum. The process of selection should involve the following:- (a)Assessment of aptitude for teaching and research (b)Ability to communicate clearly and effectively (c)Ability to analyse and discuss. (d)Optional: Ability to communicate may be assessed by requiring the candidate to participate in a group discussion or by exposure to a class room situation/ lecture, wherever it is possible. 15. Though the aforesaid Regulations were notified in April, 2000, it took four years for the University of Madras to pass a Resolution in a meeting of the Syndicate on 08.11.2004 and the same was communicated to all Colleges, by a letter dated 23.11.2004. Similarly, the response of the Manonmaniam Sundaranar University, was also very slow and they communicated this requirement only by letter dated 03.07.2006 to all the Colleges. 16. But even before the Universities started acting on these Regulations, the Government of Tamil Nadu had issued G.O.Ms.No.111, Higher Education (H-1) Department, dated 24.03.1999, directing all aided Colleges to constitute similar Committees for appointment to the posts of Lecturers and Principals in aided Colleges. This was done by the Government of Tamil Nadu, while accepting the recommendations of the University Grants Commission, for revising the scales of pay of teachers in Government and aided Colleges with effect from 01.01.1996. The revision of pay scales of College reachers, the minimum qualifications for appointment and other measures for the maintenance of standards, were notified by the UGC, by a U.G.C. Notification bearing No.F.3-1/94 (PS) dated 24-12-1998. In Appendix-V to the said notification, UGC issued guidelines for the constitution of selection committees. Though it was only a notification of the UGC, the Government of Tamilnadu accepted the same as part of the requirement for the implementation of the revised pay scales and hence issued G.O.Ms.No.111, dated 24.03.1999. In other words, at the time, when G.O.Ms.No.111 dated 24.03.1999 was issued, the U.G.C. Regulations had not been issued, but a UGC notification had come into force. Therefore, a challenge was made to G.O.Ms.No.111, dated 24.03.1999 in W.P.No.17042 of 1999 and the challenge was upheld by a single Judge, by an order dated 11.09.2001. It was held in the said judgment that the direction issued under the said Government Order for the constitution of Committees for selection of candidates for appointment as Lecturers and Principals in Private aided Colleges, was ultra vires the provisions of the Tamil Nadu Private Colleges (Regulation) Act and https://hcservices.ecourts.gov.in/hcservices/ the Rules issued thereunder. But as stated earlier, U.G.C. Regulations, 2000, had not been issued at the time when G.O.Ms.No.111, dated 24.03.1999 was issued. However the Regulations were issued and notified during the pendency of the said writ petition, but the issue of the Regulations, was not brought to the notice of the learned Judge. Therefore, the learned Judge held the Government order G.O.Ms.No.111 to be ultra vires the Tamilnadu Private Colleges Act. It is perhaps on account of the said judgment striking down G.O.Ms.No.111, that the Universities took their own time to implement the U.G.C. Regulations. 17. In the backdrop of the above facts, the challenge of the appellants, to the requirements of paragraph Nos. 3.1.0 and 3.5.0 of the U.G.C. Regulations, 2000, are as follows:- (a)that the direction to constitute Selection Committees, issued in the impugned paragraphs of the U.G.C. Regulations, is beyond the Legislative competence of the University Grants Commission, in the light of the clear dichotomy between the respective fields occupied by Entry 66 of List I (Union List) and Entry 25 of List III (Concurrent List) and the Provisions of the Tamil Nadu Private Colleges (Regulation) Act; (b)that the selection and appointment of Lecturers and Principals in Private aided Colleges in the State of Tamilnadu, has to be made by a Committee known as, "College Committee", by virtue of the Provisions of Section 14 (1)(b) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and that such a Committee has to be constituted only in accordance with Section 11 of the said Act and hence, a direction to constitute a different Committee would be an encroachment into an occupied field; (c)that since Tamil Nadu Private Colleges (Regulation) Act received the assent of the President, it would prevail over the U.G.C. Regulations; (d)that in any case, the Regulations being a subordinate central Legislation, cannot have overriding effect upon a superior State Legislation (viz., an Act passed by the Legislature); (e)that the requirement to constitute a Committee as prescribed by the Regulations, tends to interfere with the fundamental right of the Private Colleges guaranteed under Article 19(1)(g) of the Constitution of India; and (f)that at any rate, the impugned paragraphs of the Regulations, contain only a "recommendation" and not an enforceable mandate. Now let us deal with these objections, one after another. Legislative Competence and Occupied Field. 18. At the outset, the appellants contend that the impugned paragraphs of the UGC Regulations, would not fall within the ambit of Entry 66 of List I, but would fall within that of Entry 25 of List III and that therefore, it is nothing but an encroachment into a field reserved for the State to legislate. The State has already made a law, namely, the Tamil Nadu Private Colleges (Regulations) Act, 1976. Therefore, according to the appellants, the impugned Regulations are ultra vires to the extent that they encroach into an occupied territory. https://hcservices.ecourts.gov.in/hcservices/ 19. To test the correctness of the said contention, it is necessary to see the relevant Entries and the respective objects and reasons of the U.G.C. Act and Regulations vis-a-vis the Tamil Nadu Private Colleges (Regulations) Act, 1976. Entry 66 of List I (Union List) reads as follows:- "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." Entry 25 of List III (Concurrent List) reads as follows:- "Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." The preamble to the University Grants Commission Act, 1956, reads as follows:- "An Act to make provision for the co- ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission." Section 12 of the U.G.C. Act imposes a duty upon the Commission "to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities." Section 13 of the U.G.C. Act enables the Commission to cause an inspection of any department of the University for the purpose of ascertaining "its standards of teaching, examination and research". Section 26 of the Act empowers the Commission to make Regulations, with regard to various matters that include the qualifications required of a person to be appointed as a teaching staff and the maintenance of standards and co-ordination of work or facilities in Universities. 20. Thus the entire scheme of University Grants Commission Act, 1956, right from its preamble up to the provision relating to conferment of power to issue regulations, focuses attention on the "co-ordination and determination of standards in Universities", a phrase borrowed only from Entry 66 of List I of the Seventh Schedule of the Constitution. 21. On the contrary, the statement of objects and reasons of the Tamil Nadu Private Colleges (Regulations) Act, 1976 and the Scheme of the Act, focus attention on "regulation of private colleges and the conditions of service of teachers". The statement of objects and reasons of the Act, reads as follows:- "STATEMENT OF OBJECTS AND REASONS:- The Government of Tamil Nadu decided to regulate the conditions of service of teachers employed in private colleges and to make the rules relating to managing bodies and payment of grants to such colleges statutory. As the Legislature of the State of Tamil Nadu was not in session, the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Private Colleges (Regulation) Ordinance, 1975 was promulgated on the 21st November, 1975. 2. The President issued a Proclamation on the 31st January, 1976 under Article 256 of the Constitution, in relation to the State of Tamil Nadu, declaring inter alia that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Hence, by virtue of the powers delegated to the Governor of Tamil Nadu by the President, the Tamil Nadu Private Colleges (Regulation) Ordinance, 1976 (Tamil Nadu Ordinance 11 of 1976) was promulgated with some modifications to make certain provisions of the Ordinance inapplicable to minority colleges. 3. It is proposed to replace this Ordinance by a President's Act with additional provisions to the effect that no private college shall be established without affiliation to a University, that the non-teaching staff of private colleges would also come within the scope of the measure and that a University may make regulations, statutes and ordinances specifying the qualifications for appointment of teachers and other persons employed in private colleges. 22. As seen from the above, the Tamil Nadu Act was enacted by the President of India. Its legislative history was summed up by the Supreme Court in paragraph No.2 of the judgment in P.Kasilingam -vs- P.S.G. College of Technology and others [1995 Supp. (2) SCC 348], as follows:- "On 31.01.1976 the President of India issued a Proclamation under Article 356 of the Constitution of India, in relation to the State of Tamil Nadu, declaring inter alia that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Parliament under Article 357(1)(a) of the Constitution enacted the Tamil Nadu State Legislature (Delegation of Powers) Act, 1976 whereby it conferred on the President of India the powers of the Legislature of the State of Tamil Nadu to make laws in relation to State of Tamil Nadu. In exercise of the said powers the President of India enacted the Act to provide for the regulation of private colleges in the State of Tamil Nadu. Chapter II (Sections 3 to 10) makes provisions for establishment, permission for establishment and management of private colleges. In Chapter III (Sections 11 to 14) provision is made for college committee and its constitution and functions. Chapter IV (Sections 15 to 24) deals with the https://hcservices.ecourts.gov.in/hcservices/ terms and conditions of service of teachers and other persons employed in private colleges. Chapter V (Sections 25 to 32) relates to control of private colleges. Other provisions are contained in Chapter VI (Accounts, Audit, Inspection and Furniture), Chapter VII (General Provisions regarding Appeal and Revision), Chapter VIII (Penalties and Procedure) and Chapter IX (Miscellaneous)." 23. The preamble of the Act states that it is an "Act to provide for the regulation of private colleges in the State of Tamil Nadu". Section 11 of the Act requires every Private College (other than a minority College) to constitute a College Committee; Section 14(1)(b) assigns the function of appointment of teachers, to the College Committee; Section 15 vests the University with the power to make regulations specifying the qualifications; and Section 17 vests the Government with the power to make rules (in consultation with the University) regulating the number and conditions of service of teachers employed in a Private College. These provisions are extracted as follows:- "11. Constitution of College Committee.- Every private college, not being a minority college, shall have a College Committee which