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20 May

UGC NET Supreme Court Judgement March 31


                              J U D G M E N T
                               R.F.Nariman, J.
 

1. Leave granted in all the special leave petitions.
2. A large number of appeals are before us in which the
judgments of four High Courts are assailed. The High Court of
Delhi in its judgment dated 6th December, 2010 was faced with
the constitutional validity of the University Grants Commission
Regulations (Minimum Qualifications Required for the
Appointment And Career Advancement of Teachers in
Universities and Institutions affiliated to it) (the third
Amendment) Regulation 2009 under which NET/SLET is to be
the minimum eligibility condition for recruitment and
appointment of Lecturers in Universities/Colleges/Institutions.
The challenge was repelled saying that the Regulations do not
violate Article 14 and are, in fact, prospective inasmuch as they
apply only to appointments made after the date of the
notification and do not apply to appointments made prior to that
date. Along the lines of the Delhi High Court, the Madras and
Rajasthan High Courts have also repelled challenges to the
aforesaid regulations vide their judgments dated 6th December,
2010 and 13th September, 2012. On the other hand, the
Allahabad High Court in a judgment dated 6th April, 2012 has
found that the said regulations were issued pursuant to
directions of the Central Government which themselves were
issued outside the powers conferred by the UGC Act and,
hence, the eligibility conditions laid down would not apply to M.
Phil. and Ph.D. degrees awarded prior to 31st December, 2009.
However, a subsequent judgment of the Allahabad High Court
dated 6th January, 2014 distinguished the aforesaid judgment
and upheld the self-same regulations. Whereas the Union of
India is in appeal before us from the Allahabad High Court
judgment dated 6th April, 2012, M.Phil. degree holders and
Ph.D. degree holders who have not yet been appointed as
Assistant Professors in any University/College/Institution are
the appellants before us in all the other appeals.
3. The facts necessary to appreciate the controversy in
these appeals are as follows:-
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 Act. We are directly concerned in these appeals with
two Sections of this Act, namely, Sections 20 and 26:-
20. Directions by the Central Government.—(1)
In the discharge of its functions under this Act, the
Commission shall be guided by such directions on
questions of policy relating to national purposes as
may be given to it by the Central Government.
(2) If any dispute arises between the Central
Government and the Commission as to whether a
question is or is not a question of policy relating to
national purposes, the decision of the Central
Government shall be final.
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) regulating the meetings of the Commission and
the procedure for conducting business thereat;
(b) regulating the manner in which and the purposes
for which persons may be associated with the
Commission under Section 9;
(c) specifying the terms and conditions of service of
the employees appointed by the Commission;
(d) specifying the institutions or class of institutions
which may be recognised by the Commission under
clause (f) of Section 2;
(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
instruction;
(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) of Section 12-A;
(j) specifying the manner in which an inquiry may be
conducted under sub-section (4) of Section 12-A.]
(2) No regulation shall be made under clause (a) or
clause (b) or clause (c) or clause (d) [or clause (h)
or clause (i) or clause (j)] of sub-section (1) except
with the previous approval of the Central
Government.
(3) The power to make regulations conferred by this
section [except clause (i) and clause (j) of subsection
(1)] shall include the power to give
retrospective effect from a date not earlier than the
date of commencement of this Act, to the
regulations or any of them but no retrospective
effect shall be given to any regulation so as to
prejudicially affect the interests of any person to
whom such regulation may be applicable.
4. 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 Master’s level”.
In 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
purpose.”
5. 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/ 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 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/Institutions.”
The 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 etc.
6. 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 it's 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 policy.
The above said directions shall be implemented by
the UGC forthwith.”
7. 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/Institutions.
Provided 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/ Institutions.”
8. 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 Professor.
9. 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 test.
10. Learned counsel assailing the Delhi, Madras and
Rajasthan High Court judgments argued that Section 26(3)
expressly entitles a regulation to be prospective but so as not to
prejudicially affect the interests of any person to whom such
regulation may be applicable. They, therefore, argued that both
under Article 14 as well as this sub-section, since all M.Phil.
and Ph.D. holders had been repeatedly assured that they would
be exempt from passing the NET exam if they were such
holders prior to 2009, the regulations should not be so
construed as to impose the burden of this examination upon
them. They further argued that under Section 26(2),
regulations made in pursuance of Section 26(1)(e) and (g) do
not require the previous approval of the Central Government.
Consequently, the impugned regulations are bad since they
follow the dictate of the Central Government which is not
required. Also, this would show that when it comes to
qualifications of persons to be appointed to the teaching staff,
the UGC is an expert body to whom alone such qualifications
and consequently exemptions from such qualifications should
be left to decide. They also argued that there is a violation of
Article 14 in that unequals have been treated equally as those
who passed their M. Phil. and Ph.D. degrees prior to 2009 fell
in a separate class which had an intelligible differentia from
those who did not so fall as has been maintained by the UGC
from time to time. They strongly relied upon the judgment of
this Court in University Grants Commission v. Sadhana
Chaudhary (1996) 10 SCC 536 for this proposition as well as
the proposition that their legitimate expectation in the matter of
appointment on the post of Lecturer had been done away with.
11. On the other hand, learned counsel for the Union of India
and the UGC stressed the fact that under Section 26
regulations have to be made consistently with the Act and
Section 20 is very much part of the Act. Therefore, if directions
on questions of policy are made by the Central Government,
regulations must necessarily be subordinate to such directions.
It was also pointed out that if a question arises as to whether a
subject matter is a question of policy relating to national
purposes, the decision of the Central Government shall be final.
They then relied upon Udai Singh Dagar v. Union of India
(2007) 10 SCC 306, for the proposition that a person will have
the right to enter a profession only if he holds the requisite
qualification and the holding of such qualification would be
prospective if it is a qualification which is laid down any time
before his entry into a profession.
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 Act.
13. 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 Government’s 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 Commission.
14. The other interesting argument made is that such
regulations should not be given retrospective effect so as to
prejudicially affect the interests of any person to whom such
regulation may be applicable. In order to appreciate this
contention, it is necessary to distinguish between an existing
right and a vested right. This distinction was made with great
felicity in Trimbak Damodhar Rajpurkar v. Assaram Hiraman
Patil, 1962 Suppl. 1 SCR 700. In that case a question arose as
to whether an amendment made to Section 5 of the Bombay
Tenancy and Agricultural Lands Amendment Act could be said
to be retrospective because its operation took within its sweep
existing rights. A bench of five Hon’ble Judges of this Court
held that Section 5 had no retrospective operation. This Court
held:
“Besides, it is necessary to bear in mind that the
right of the appellant to eject the respondents would
arise only on the termination of the tenancy, and in
the present case it would have been available to
him on March 31, 1953 if the statutory provision had
not in the meanwhile extended the life of the
tenancy. It is true that the appellant gave notice to
the respondents on March 11, 1952 as he was then
no doubt entitled to do; but his right as a landlord to
obtain possession did not accrue merely on the
giving of the notice, it accrued in his favour on the
date when the lease expired. It is only after the
period specified in the notice is over and the
tenancy has in fact expired that the landlord gets a
right to eject the tenant and obtain possession of
the land. Considered from this point of view, before
the right accrued to the appellant to eject the
respondents amending Act 33 of 1952 stepped in
and deprived him of that right by requiring him to
comply with the statutory requirement as to a valid
notice which has to be given for ejecting tenants.
In this connection it is relevant to distinguish
between an existing right and a vested right. Where
a statute operates in future it cannot be said to be
retrospective merely because within the sweep of its
operation all existing rights are included. As
observed by Buckley, L.J.
in West v. Gwynne [ (1911) 2 Ch 1 at pp 11, 12]
retrospective operation is one matter and
interference with existing rights is another. “If an Act
provides that as at a past date the law shall be
taken to have been that which it was not, that Act I
understand to be retrospective. That is not this
case. The question here is whether a certain
provision as to the contents of leases is addressed
to the case of all leases or only of some, namely,
leases executed after the passing of the Act. The
question is as to the ambit and scope of the Act,
and not as to the date as from which the new law,
as enacted by the Act, is to be taken to have been
the law.” These observations were made in dealing
with the question as to the retrospective
construction of Section 3 of the Conveyancing and
Law of Property Act, 1892 (55 & 56 Vict. c. 13). In
substance Section 3 provided that in all leases
containing a covenant, condition or agreement
against assigning, underletting, or parting with the
possession, or disposing of the land or property
leased without licence or consent, such covenant,
condition or agreement shall, unless the lease
contains an expressed provision to the contrary, be
deemed to be subject to a proviso to the effect that
no fine or sum of money in the nature of a fine shall
be payable for or in respect of such licence or
consent. It was held that the provisions of the said
section applied to all leases whether executed
before or after the commencement of the Act; and,
according to Buckley, L.J., this construction did not
make the Act retrospective in operation; it merely
affected in future existing rights under all leases
whether executed before or after the date of the Act.
The position in regard to the operation of Section
5(1) of the amending Act with which we are
concerned appears to us to be substantially similar.
A similar question had been raised for the
decision of this Court in Jivabhai
Purshottam v. Chhagan Karson [ Civil Appeal No
153 of 1958 decided on 27-3-1961] in regard to the
retrospective operation of Section 34(2)(a) of the
said amending Act 33 of 1952 and this Court has
approved of the decision of the Full Bench of the
Bombay High Court on that point in Durlabbha
Fakirbhai v. Jhaverbhai Bhikabhai [ (1956) 58 BLR
85] . It was held in Durlabbhai case [ (1956) 58 BLR
85] that the relevant provision of the amending Act
would apply to all proceedings where the period of
notice had expired after the amending Act had
come into force and that the effect of the amending
Act was no more than this that it imposed a new
and additional limitation on the right of the landlord
to obtain possession from his tenant. It was
observed in that judgment that “a notice under
Section 34(1) is merely a declaration to the tenant
of the intention of the landlord to terminate the
tenancy; but it is always open to the landlord not to
carry out his intention. Therefore, for the application
of the restriction under sub-section 2(a) on the right
of the landlord to terminate the tenancy, the crucial
date is not the date of notice but the date on which
the right to terminate matures; that is the date on
which the tenancy stands terminated”.
15. 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 fail.
16. 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
2010.
17. 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 diluted.
18. The doctrine of legitimate expectation has been dealt with
in two judgments of this Court as follows:
In Union of India v. International Trading Company (2003) 5
SCC 437, it was held:
“23. Reasonableness of restriction is to be
determined in an objective manner and from the
standpoint of interests of the general public and not
from the standpoint of the interests of persons upon
whom the restrictions have been imposed or upon
abstract consideration. A restriction cannot be said
to be unreasonable merely because in a given case,
it operates harshly. In determining whether there is
any unfairness involved; the nature of the right
alleged to have been infringed, the underlying
purpose of the restriction imposed, the extent and
urgency of the evil sought to be remedied thereby,
the disproportion of the imposition, the prevailing
condition at the relevant time, enter into judicial
verdict. The reasonableness of the legitimate
expectation has to be determined with respect to
the circumstances relating to the trade or business
in question. Canalisation of a particular business in
favour of even a specified individual is reasonable
where the interests of the country are concerned or
where the business affects the economy of the
country. (See Parbhani Transport Coop. Society
Ltd. v. Regional Transport Authority [AIR 1960 SC
801 : 62 Bom LR 521] , Shree Meenakshi Mills
Ltd. v. Union of India [(1974) 1 SCC 468 : AIR 1974
SC 366] , Hari Chand Sarda v. Mizo District
Council [AIR 1967 SC 829] and Krishnan
Kakkanth v. Govt. of Kerala [(1997) 9 SCC 495 :
AIR 1997 SC 128].”
19. Similarly, in Sethi Auto Service Station v. DDA (2009) 1
SCC 180, it was held:-
“33. It is well settled that the concept of legitimate
expectation has no role to play where the State
action is as a public policy or in the public interest
unless the action taken amounts to an abuse of
power. The court must not usurp the discretion of
the public authority which is empowered to take the
decisions under law and the court is expected to
apply an objective standard which leaves to the
deciding authority the full range of choice which the
legislature is presumed to have intended. Even in a
case where the decision is left entirely to the
discretion of the deciding authority without any such
legal bounds and if the decision is taken fairly and
objectively, the court will not interfere on the ground
of procedural fairness to a person whose interest
based on legitimate expectation might be affected.
Therefore, a legitimate expectation can at the most
be one of the grounds which may give rise to
judicial review but the granting of relief is very much
limited.(Vide Hindustan Development Corpn.
[(1993) 3 SCC 499]”
20. In University Grants Commission v. Sadhana
Chaudhary (1996) 10 SCC, 536, it is true that in paragraph 22,
some of the very appellants before us are referred to as having
a legitimate expectation in the matter of appointment to the post
of Lecturer in Universities/Colleges, but that case would have
no direct application here. There a challenge was made to
exemptions granted at that time to Ph.D. holders and M. Phil.
degree holders. It was found that such exemption had a
rational relation to the object sought to be achieved at that point
of time, being based on an intelligible differentia. An Article 14
challenge to the said exemption was, therefore, repelled. Even
assuming that the said judgment would continue to apply even
after the 2009 Regulations, a legitimate expectation must
always yield to the larger public interest. The larger public
interest in the present case is nothing less than having highly
qualified Assistant Professors to teach in UGC Institutions.
Even if, therefore, the private appellants before us had a
legitimate expectation that given the fact that the UGC granted
them an exemption from the NET and continued to state that
such exemption should continue to be granted even after the
Government direction of 12th November, 2008 would have to
yield to the larger public interest of selection of the most
meritorious among candidates to teach in Institutions governed
by the UGC Act.
21. The Allahabad High Court in its judgment dated 6th April,
2012 has held as follows:
“104. CONCLUSIONS:
1. The Central Government, in exercise of its
powers under Section 20 (1) of UGC Act, 1956,
does not possess powers and authority to set aside
or annul the recommendations of the University
Grants Commission, and the regulations made by it
under Section 26 (1) (e) of the Act defining the
qualification, that should ordinarily be required to be
possessed by any person to be appointed to the
teaching posts of the University, for which under
Section 26 (2) of the UGC Act, 1956, the previous
approval of the Central Government is not required.
2. The exemptions given by UGC to those, who
were awarded Ph.D degrees prior to 31.12.2009
before the enforcement of the Regulations of 2009,
is not a question of policy relating to national
purpose on which the Central Government could
have issued directions under Section 20 (1) of the
UGC Act, 1956.
3. The UGC is an expert body constituted with
specialists in laying down standards and for
promotion and coordination of University education.
The recommendations made by it in the matters of
qualifications and the limited exemptions of such
qualifications for appointment for teachers in
Universities taken after constituting expert
Committees and considering their recommendations
is not subject to supervision and control by the
Central Government. The Central Government in
the matters of laying down minimum qualifications
for appointment of teachers in the University, does
not possess any supervisory powers, to annul the
resolutions of UGC.
4. The Ph.D holders, who were awarded Ph.D
degrees prior to 31.12.2009, cannot be said to have
legitimate expectation maturing into any right to be
considered for appointment on teaching posts in the
University, without obtaining the NET/SLET/SET
qualifications, unless the UGC has provided for any
exemptions.
5. The resolution on agenda item no. 6.04 and 6.05
in the 468th meeting of the UGC held on 23.2.2010,
and the resolution of UGC in its 471st meeting on
agenda item no. 2.08 dated 12.8.2010
recommending the 3rd Amendments to the
Regulations of 2009 to be prospective in nature, is
binding on the Universities including the University
of Allahabad.
6. The petitioners were awarded Ph.D degrees in
the year 2009 and in the year 2003 respectively
prior to enforcement of the 3rd Amendment in the
regulations, which came into force on 31.12.2009,
and thus they are eligible, even if they are not
NET/SLET/SET qualified, if they have been
awarded Ph.D degree with any six conditions out of
11 recommended by the UGC prior to 31.12.2009.
The writ petition is allowed. The petitioners are held
eligible for consideration for appointment as
Lecturer for guest faculty in the Department of
Sanskrit of the University, provided they satisfy any
of the six tests out of eleven, laid down by the UGC,
and which are made essential for award of Ph.D
degree under the 3rd Amendment of the
Regulations of 2009. It will be open to the University
to consider from the material produced by the
petitioners, that they satisfy six out of eleven tests
recommended by the University Grants Commission
for award of their Ph.D.”
22. 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
Government.
23. The Allahabad High Court adverted to an expert
committee under the Chairmanship of Professor S.P.
Thyagarajan which laid down that if six out of eleven criteria laid
down by the Committee was satisfied when such University
granted a Ph.D. degree, then such Ph.D. degree should be
sufficient to qualify such person for appointment as
Lecturer/Assistant Professor without the further qualification of
having to pass the NET test. The UGC itself does not appear to
have given effect to this recommendation of the Thyagarajan
Committee. However, the High Court thought it fit to give effect
to this Committee’s recommendation in the final directions
issued by it. When the UGC itself has not accepted the
recommendations of the said Committee, we do not understand
how the High Court sought to give effect to such
recommendations. We, therefore, set aside the Allahabad High
Court judgment dated 6th April, 2012 in its entirety.
24. 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. In fact, as was pointed out to
us by learned counsel for the appellants, the distinction made in
paragraph 20 between the facts of the earlier judgment and the
facts in the later judgment is not a distinction at all. Just as in
the 2012 judgment Ph.D. degrees had been awarded prior to
2009, even in the 2014 judgment Ph.D. degrees with which that
judgment was concerned were also granted prior to 2009.
There is, therefore, no distinction between the facts of the two
cases. What is even more distressing is that only sub para 4 of
the conclusion in the 2012 judgment is set out without any of
the other sub paragraphs of Paragraph 104 extracted above to
arrive at a result which is the exact opposite of the earlier
judgment. This judgment is also set aside only for the reason
that it did not follow an earlier binding judgment. This will,
however, not impact the fact that the writ petitions in the 2014
judgment have been dismissed. They stand dismissed having
regard to the reasoning in the judgment delivered by us today.
In view of this pronouncement, nothing survives in Contempt
Petition Nos. 286-287 of 2014 which are disposed of as having
become infructuous. The other appeals from the Delhi, Madras
and Rajasthan High Courts are, consequently, also dismissed.
There shall be no order as to costs.
…………………….J.
(T.S. Thakur)
…………………….J.
(R.F. Nariman)
New Delhi;
March 16, 2015.

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