Case: P. Suseela and Ors Vs. University Grants Commission and Ors

The University Grants Commission Act, 1956, was enacted by Parliament to make provision for the coordination and determination of standards in Universities being enacted under Entry 66 List I, Schedule VII to the Constitution of India. By Section 4 of the Act, a University Grants Commission is established to carry out the functions entrusted to it by Section 12 of the Act4. In exercise of the powers conferred by Section 26(1)(e) of the said Act, the UGC framed regulations in 1982 prescribing the qualification for the teaching post of Lecturer in colleges as follows:-M. Phil. degree or a recognised degree beyond Masters levelIn 1986, the Malhotra Committee was appointed by the UGC to examine various features of University and College education. It recommended that there should be certain minimum qualifications laid down for the post of Lecturer. Pursuant to the said Committee report, the UGC framed regulations on 19th September, 1991 superseding the 1982 regulations and providing apart from other qualifications, clearing of the NET as a test for eligibility to become a Lecturer. Vide an amendment dated 21st June, 1995, a proviso was added to the 1991 regulations by which candidates who have submitted their Ph.D. thesis or passed the M. Phil. examination on or before 31st December, 1993 are exempted from the said eligibility test for appointment to the post of Lecturer. This continued till 2002, the only change made being that the exemption continued qua Ph.D. thesis holders for dates that were extended till 31st December, 2002. This state of affairs continued until 2008 when the Mungekar Committee submitted its final report recommending that NET should be made a compulsory requirement for appointment of Lecturer in addition to the candidate possessing M.Phil. or Ph.D degrees. On 12th November, 2008, the Department of Higher Education, Ministry of Human Resources Development, Government of India, issued a directive under Section 22 of the UGC Act providing inter alia as under:-UGC shall, for serving the national purpose of maintaining standards of higher education, frame appropriate regulations within a period of thirty days from the date of issue of this order prescribing that qualifying in NET/SLET shall generally be compulsory for all persons appointed to teaching positions of Lecturer/Assistant Professor in Higher Education, and only persons who possess degree of Ph.D. after having been enrolled/ admitted to a programme notified by the Commission, after it has satisfied itself on the basis of expert opinion, as to be or have always been in conformity with the procedure of standardization of Ph.D. prescribed by it, and also that the degree of Ph.D. was awarded by a University or Institution Deemed to be University notified by the UGC as having already complied with the procedure prescribed under the regulations framed by the Commission for the purpose5. In pursuance of the said directive, the UGC promulgated the impugned Regulations of 2009, the 3rd Amendment of which provides as follows:-NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/ InstitutionsProvided, 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 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/InstitutionsThe proviso referred to a number of new conditions relating to the maximum number of Ph.D. students at any given point of time, stringent admission criteria for a Ph.D. degree, research papers being published, the Ph.D. thesis being evaluated by at least two experts, one of whom shall be an expert from outside the State etc6. This was followed by another directive dated 30th March, 2010 by the Ministry under Section 20 of the Act directing the UGC as follows:-The Ministry of Human Resource Development issued another order dated 30.3.2010 under Section 20 of the University Grants Commission Act, 1956 directing the UGC as follows:(i) That the UGC shall not take up specific cases for exemption from the application of the NET Regulations of 2009 after the said Regulations have come into force, for either specific persons or for a specific university/institution/college from the application of the UGC (Minimum Qualifications for appointment and career advancement of teachers in universities and colleges) 3rd Amendment Regulations, 2009 for appointment as Lecturer in universities/colleges/institutions;(ii) That appropriate amendment to the second proviso to clause 2 of the UGC Regulations 2000 shall be made by UGC to give full effect to the policy directions issued by the Central Government dated 12th November, 2008, within 30 days from the date of issue of this direction; and(iii) That the decision taken by the UGC in its 468th meeting held on 23rd February, 2010 vide agenda item no. 6.04 and 6.05 to grant specific exemptions from the applicability of NET shall not be implemented as being contrary to national policyThe above said directions shall be implemented by the UGC forthwith7. Pursuant to this directive, on 30th June, 2010, the UGC framed Regulations of 2010, para 3.3.1 of which states:3.3.1. NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/InstitutionsProvided however, that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor equivalent positions in Universities/Colleges/ Institutions8. By two resolutions dated 12th August, 2010 and 27th September, 2010, the UGC opined that since the regulations are prospective in nature, all candidates having M. Phil. Degree on or before 10th July, 2009 and all persons who obtained the Ph.D. degree on or before 31st December, 2009 and had registered themselves for the Ph.D. before this date, but are awarded such degree subsequently shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor9. The Central Government, however, by letter dated 3rd November, 2010 informed the UGC that they were unable to agree with the decision of the Commission and stated that consequently a candidate seeking appointment to the post of Lecturer/Assistant Professor must fulfill the minimum qualifications prescribed by the UGC including the minimum eligibility condition of having passed the NET test24. In SLP (C) NO.3054-3055/2014, a judgment of the same High Court dated 6th January, 2014 again by a Division Bench arrived at the opposite conclusion. This is also a matter which causes us some distress. A Division Bench judgment of the same High Court is binding on a subsequent Division Bench. The subsequent Division Bench can either follow it or refer such judgment to the Chief Justice to constitute a Full Bench if it differs with it. We do not appreciate the manner in which this subsequent judgment, (even though it has reached the right result) has dealt with an earlier binding Division Bench judgment of the same High Court.

Reasoning:
12. It is clear that Section 26 enables the Commission to make regulations only if they are consistent with the UGC Act. This necessarily means that such regulations must conform to Section 20 of the Act and under Section 20 of the Act the Central Government is given the power to give directions on questions of policy relating to national purposes which shall guide the Commission in the discharge of its functions under the Act. It is clear, therefore, that both the directions of 12th November, 2008 and 30th March, 2010 are directions made pertaining to questions of policy relating to national purposes inasmuch as, being based on the Mungekar Committee Report, the Central Government felt that a common uniform nationwide test should be a minimum eligibility condition for recruitment for the appointment of Lecturer/Assistant Professors in Universities/Colleges/Institutions. This is for the obvious reason that M. Phil. degrees or Ph.D. degrees are granted by different Universities/Institutions having differing standards of excellence. It is quite possible to conceive of M.Phil/ Ph.D. degrees being granted by several Universities which did not have stringent standards of excellence. Considering as a matter of policy that the appointment of Lecturers/ Assistant Professors in all institutions governed by the UGC Act (which are institutions all over the country), the need was felt to have in addition a national entrance test as a minimum eligibility condition being an additional qualification which has become necessary in view of wide disparities in the granting of M. Phil./Ph.D. degrees by various Universities/ Institutions. The object sought to be achieved by these directions is clear: that all Lecturers in Universities/Colleges/Institutions governed by the UGC Act should have a certain minimum standard of excellence before they are appointed as such. These directions are not only made in exercise of powers under Section 20 of the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act. It is clear, therefore, that any regulation made under Section 26 must conform to directions issued by the Central Government under Section 20 of the Act13. It was argued that since the previous approval of the Central Government was not necessary for regulations which define the qualifications required of persons to be appointed to the teaching staff of a University, the Government has no role to play in such matters and cannot dictate to the Commission. This argument does not hold water for the simple reason that it ignores the opening lines of Section 26(1) which states that the Commission can only make regulations consistent with the Act, which brings in the Central Governments power under Section 20 of the Act, a power that is independent of sub-section (2) of Section 26. A regulation may not require the previous approval of the Central Government and may yet have to be in conformity with a direction issued under Section 20 of the Act. In fact, even where a regulation can only be made with the previous approval of the Central Government, the Central Government would have a role to play both before and after the regulation is made. In the first case, it would accord its previous approval to the regulation. Once the regulation becomes law, it may issue directions under Section 20 pursuant to which the very same regulation may have to be modified or done away with to conform to such direction. It is clear, therefore, that Section 26(2) would not stand in the way of the directions issued in the present case by the Central Government to the Commission15. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail16. One of the learned counsel for the petitioners argued, based on the language of the direction of the Central Government dated 12th November, 2008 that all that the Government wanted the UGC to do was to generally prescribe NET as a qualification. But this did not mean that UGC had to prescribe this qualification without providing for any exemption. We are unable to accede to this argument for the simple reason that the word generally precedes the word compulsory and it is clear that the language of the direction has been followed both in letter and in spirit by the UGC regulations of 2009 and 201017. The arguments based on Article 14 equally have to be rejected. It is clear that the object of the directions of the Central Government read with the UGC regulations of 2009/2010 are to maintain excellence in standards of higher education. Keeping this object in mind, a minimum eligibility condition of passing the national eligibility test is laid down. True, there may have been exemptions laid down by the UGC in the past, but the Central Government now as a matter of policy feels that any exemption would compromise the excellence of teaching standards in Universities/Colleges/Institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this – in fact it is a core function of the UGC to see that such standards do not get diluted22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government24. In SLP (C) NO.3054-3055/2014, a judgment of the same High Court dated 6th January, 2014 again by a Division Bench arrived at the opposite conclusion. This is also a matter which causes us some distress. A Division Bench judgment of the same High Court is binding on a subsequent Division Bench. The subsequent Division Bench can either follow it or refer such judgment to the Chief Justice to constitute a Full Bench if it differs with it. We do not appreciate the manner in which this subsequent judgment, (even though it has reached the right result) has dealt with an earlier binding Division Bench judgment of the same High Court.