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validity of notification - In the absence of any rules, under Article 309 or Statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of Ph.D. is unreasonable. 13 13. The Tribunal and the High Court have held that in the years 1989 and 1991, the Tribunal had accepted the earlier administrative instructions dated 20.8.1987 which required the UT cadre employees to be considered for the post has to be followed. The fact that at that time Ph.D. degree was not insisted upon, does not mean that for all times to come, Ph.D. degree could not be insisted. Ph.D. degree was made a qualification because UGC guidelines required it for direct recruitment post and the UPSC approved the same. Therefore, merely because on some earlier occasions, the posts of Principal were filled by UT cadre lecturers without Ph.D. degree, it cannot be argued that the Ph.D. degree cannot be prescribed subsequently. 14. The Tribunal and High Court were not justified in holding that 1976 Punjab Rules were not applicable on the ground that no material had been placed to show that they were followed while appointing a principal in the past. The fact that the appellant had issued a notification dated 13.1.1992 adopting the corresponding Punjab Rules governing the conditions of service of its employees, is not disputed. Therefore when appellant acted in accordance with the said directions, it is not necessary to consider whether there were any occasion between 1992 to 2001 to invoke the said rules or whether they were in fact invoked. The notification dated 13.1.1992 could 14 not have been brushed aside in the manner done by the Tribunal and the High Court.


                                          1








                                                                          Reportable




                    IN THE SUPREME COURT OF INDIA




                     CIVIL APPELLATE JURISDICTION




                      CIVIL APPEAL NO. 7570 OF 2011


                     [Arising out of SLP (C) No.3568/2006]








Chandigarh Administration through the


Director Public Instructions (Colleges), Chandigarh              ... Appellant




Vs.




Usha Kheterpal Waie & Ors.                                       ... Respondents










                                 J U D G M E N T










R.V.RAVEENDRAN,J.








       Leave granted. 




2.     There   are   four   Government   Arts   and   Science   colleges   in   Union 




Territory   of   Chandigarh.   Till   1988,   the   Chandigarh   Administration, 




appellant herein, used to fill the vacancies of the post of Principal of the Arts 




and Science colleges by deputation from neighbouring States of Punjab and 




Haryana.   When   the   post   of   Principal   in   Government   College   for   Boys, 



                                              2








Sector   11,   Chandigarh   was   due   to   fall   vacant   on   29.2.1988   on 




superannuation   of   a   deputationist,   two   UT   cadre   lecturers   filed   an 




application before the Central Administrative Tribunal, Chandigarh, seeking 




a   direction   that   UT   cadre   lecturers   from   the   Government   Arts   &   Science 




Colleges   should   be   considered   for   the   post   of   Principal   instead   of   taking 




someone   on  deputation   from  the   neighbouring   states.   The   said   application 




was   ultimately   disposed   of   with   a   direction   to   the   Chandigarh 




Administration to consider the case of the applicants and other lecturers of 




UT   cadre   who   may   fall   within   the   zone   of   consideration   as   may   be 




determined by a competent authority, for regular appointment to the post of 




Principals   of   the   Government   Arts   &   Science   colleges,   on   the   basis   of 




relevant criteria, and appoint those who were found suitable. In pursuance of 




the said order, the Chandigarh Administration fixed 30 years experience as 




Lecturer as the eligibility criterion for promotion of lecturers to the post of 




Principal, though at that time (1989-90) there were no lecturer with 30 years 




experience in the cadre. As no UT cadre lecturer possessed such experience, 




again deputationists were appointed as Principals in the said colleges.








3.     Feeling   aggrieved,   the   UT   cadre   lecturers   again   approached   the 




Tribunal and their applications were allowed by the Tribunal by order dated 



                                              3








12.1.1991,   quashing   the   order   prescribing   30   years   experience   as   also   the 




order appointing deputationists. Thereafter, whenever vacancies arose, it is 




stated that the appellant promoted UT cadre lecturers as Principals. It may be 




mentioned that persons so promoted did not possess a Ph.D. degree. 










4.      By notification dated 13.1.1992, Chandigarh Administration adopted 




the   corresponding   Service   Rules   of   Punjab   with   effect   from   1.4.1991   to 




govern   the   conditions   of   service   of   its   employees,   where   it   had   no   rules 




governing   the   matter.   The   effect   of   it   was   that   the   provisions   of   Punjab 




Educational Service (College Grade) (Class I) Rules, 1976 (as amended in 




1983   (for   short   `1976   Punjab   Rules')   became   applicable   in   regard   to   the 




recruitment of candidates to UT college cadre. Under the said 1976 Punjab 




Rules, the qualification and experience for appointment to the service was as 




under:  For   direct   recruitment  :   (a)   MA,   first   division   or   high   second 




division   (50%)   in   relevant   subject   or   an   equivalent   degree   of   a   foreign 




university with eight years teaching experience; (b) Ph.D. with eight years 




teaching experience; By promotion : Experience of working as a lecturer for 




a minimum period of eight years.  



                                               4








5.     When   matters   stood   thus   the   Administrator,   Chandigarh 




Administration,   framed   and   notified   the   "Chandigarh   Educational   Service 




(Group A Gazetted) Government Arts and Science College Rules, 2000 (for 




short   `Recruitment   Rules')   vide   notification   dated   29.3.2000   published   in 




the Gazette dated 1.4.2000. The said Rules were framed in consultation with 




the   Union   Public   Service   Commission   (`UPSC'   for   short)   and   sent   to   the 




Government of India for being issued in the name of the President of India. 




As   per   the   said   Rules,   the   appointment   to   the   posts   of   Principal   in 




Government Arts and Science Colleges was 25% by direct recruitment and 




75% by promotion. The said rules prescribed the educational qualification of 




Ph.D.   for   appointment   to   the   post   of   Principal   by   direct   recruitment.   The 




appellant   advertised   a   post   of   Principal   (which   was   falling   vacant   on 




31.7.2001) on 14.7.2001 prescribing the following eligibility criteria as per 




the said Rules : 




       "Educational   and   other   qualifications   required   for   direct   recruits   : 


       Essential: (i) A Doctorate degree or equivalent with at least 55% marks at 


       the Master's Degree level from a recognized university or equivalent; (ii) 


       12 years teaching experience of degree classes in a college affiliated to a 


       university or equivalent."










6.     Respondents 1 to 4 had joined UT Colleges (Arts & Science) cadre in 




1969   and   1970   and   were   serving   as   lecturers   in   the   Government   Arts   & 




Science Colleges. None of them possessed a Ph.D. degree. They filed OA 



                                             5








No.684/CH/2001 before the Central Administrative Tribunal challenged the 




said   Recruitment   Rules   and   the   advertisement   dated   14.7.2001,   as 




unconstitutional   and   for   a   direction   that   they   along   with   other   eligible 




candidates from the UT cadre should be considered for promotion to the said 




post. It was contended that the Administrator of the Union Territory had no 




power to make the said Recruitment Rules, as it was only the President of 




India   who   was   competent   to   frame   such   rules   under   Article   309   of   the 




Constitution   of   India.   They   also   contended   that   on   earlier   occasions   the 




appellant   had   promoted   lecturers   as   Principals   without   insisting   upon   the 




qualification  of  Ph.D.;  and  that  though they  did not  possess   Ph.D.  degree, 




having   regard   to   the   eligibility   criteria   earlier   being   applied,   they   were 




eligible for being considered for the post of Principals, and the Chandigarh 




Administration   should   fill   the   vacancies   of   Principals,   by   applying   the 




eligibility   criteria   which   was   prevalent   prior   to   the   making   of   the   said 




recruitment rules. 










7.     The appellant, in its statement of objections filed before the Tribunal 




conceded   that   the   "power  to  notify   the   recruitment  rules   for   Class   I  Posts 




vested   with   the   President   of   India".   The   appellant   stated   that   they   had 




forwarded the Recruitment Rules to the government of India under cover of 



                                               6








letter dated 21.9.2001, to notify the said Rules under the name of President 




of   India,   and   such   notification   was   awaited.   They   contended   that   pending 




publication   of   the   Rules,   they   could   resort   to   recruitment   in   terms   of   the 




draft   Rules   on   the   basis   of   administrative   instructions.   The   appellant   also 




contested   the   application   by   contending   that   the   post   in   question   was 




required   to   be   filled   under   the   direct   recruitment   quota,   and   none   of   the 




applicants were eligible as they did not possess Ph.D. degree, which was the 




qualification   prescribed   by   the   university   Grants   Commission   (`UGC'   for 




short)   and   approved   by   the   UPSC,   and   therefore   none   of   them   could   be 




considered for appointment to the said post.  










8.      The said application (OA No.648 - CH of 2001) was allowed by the 




Tribunal, by order dated 22.4.2002. The Tribunal held that in the absence of 




any recruitment rules prescribing such qualification, Ph.D. degree was not an 




eligibility requirement for the post of Principal. The Tribunal held that UGC 




guidelines   would   not   apply   as   the   Rules   providing   for   25%   by   direct 




recruitment was not in force; and that even if the new rules were to be duly 




framed,   such   Rules   would   apply   only   to   future   vacancies   and   not   to   the 




vacancies which arose on 31.7.2001. The Tribunal held that in the absence 




of any Rules, it was appropriate to take guidance from its earlier judgments 



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dated   12.9.1989   and   12.11.1991   which   accepted   the   administrative 




instructions dated 20.8.1987 permitting UT cadre lecturers to be promoted as 




Principals, even though they did not possess any Ph.D. degree. The Tribunal 




also   rejected   the   contention   of   the   appellant   that   as   per   notification   dated 




13.1.1992, the 1976 Punjab Rules  became  applicable  under which 75% of 




the posts had to be filled by promotion and 25% by direct recruitment with 




Ph.D as an eligibility requirement, on the ground that no material was placed 




to show that the said 1976 Punjab Rules were ever followed for appointing 




Principals   in   UT   of   Chandigarh.   The   Tribunal   therefore   quashed   the 




advertisement dated 14.7.2001 inviting applications for the post of Principal 




and directed  the appellant  to fill the vacancy  according to law, keeping in 




view the eligibility criteria and the past practice till the Rules are framed and 




notified   by   the   competent   authority.   The   said   order   of   the   Tribunal   was 




challenged   by   the   appellant   before   the   High   Court.   The   High   Court 




dismissed the writ petition by impugned order dated 26.10.2005, affirming 




the findings of the Tribunal. 










9.      Feeling aggrieved, the appellant has filed this appeal by special leave 




raising  the  following   contentions:  (i)  When   appellant  has   framed  the  draft 




Rules in consultation with UPSC and had been placed the Rules before the 



                                              8








central   government,   for   being   notified   under   the   name   of  the   President   of 




India,   pending   such     notification   of   the   Rules,   it   was   entitled   to   invite 




applications for the post of Principal in terms of the said Rules by treating 




them as draft rules under consideration. (ii) The Tribunal and the High Court 




could not substitute the eligibility requirements prescribed by the appellant. 




(iii) The Tribunal and the High Court could not have ignored the notification 




dated   13.1.1992   adopting   the   corresponding   Punjab   Rules   to   govern   the 




service   of   its   employees   wherever   there   were   no   rules   of   the   Chandigarh 




Administration. (iv) The 1976 Punjab Rules were applicable, and in terms of 




it, the advertisement for filling one post of Principal by direct recruitment by 




prescribing the eligibility requirement of Ph.D was valid. The appellant also 




pointed  out  that  another  bench  of  the  Tribunal  by  order  dated   3.8.1995  in 




OA No.844-CH of 1994 has clearly held that the 1976 Punjab Rules would 




apply   to   recruitment/employment,   having   regard   to   the   notification   dated 




13.1.1992 of the Chandigarh Administration adopting the Punjab Rules; and 




as there was a clear divergence between the two decisions of the Tribunal, 




the   High   Court   could   not   have   mechanically   affirmed   the   decision   of   the 




Tribunal that the 1996 Punjab Rules were inapplicable.



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10.    The first question for our consideration is whether the appellant could 




have prescribed  in the advertisement, the educational  qualifications for the 




post of Principal in terms of its 2000 Recruitment rules. The Administrator 




of the Chandigarh Administration made the Chandigarh Educational Service 




(Group A) Gazetted Government Arts & Science College Rules, 2000 vide 




notification dated 29.3.2000 and published it in the Gazette dated 1.4.2000. 




The said Rules were made in consultation with the UPSC, taking note of the 




UGC   guidelines   prescribing   Ph.D.   degree   as   an   eligibility   criteria   for   the 




post of Principals to be filled by direct recruitment. The Rules were sent to 




the Central Government for being notified in the name of the President of 




India   and   were   pending   consideration.   It   is   in   these   circumstances   the 




appellant advertised the post in terms of the said Rules, by prescribing the 




educational   qualification   of   Ph.D.   for   direct   recruitment   to   the   post   of 




Principal.   In  Abraham   Jacob   vs.   Union   of   India  [1998   (4)   SCC   65],   this 




Court held that where draft rules have been made, an administrative decision 




taken to make promotions in accordance with the draft rules which were to 




be finalized later on, was valid. In Vimal Kumari vs. State of Haryana [1998 




(4) SCC 114], this Court held that it is open to the Government to regulate 




the service conditions of the employees for whom the rules were made, even 




if they were in their draft stage, provided there is a clear intention on the part 



                                                   10








of the Government to enforce those rules in the near future. In this case, the 




High   Court   however   rejected   the   advertisement   on   the   ground   that   the 




regular rules were not notified by the President of India even after five years, 




when   the   High   Court   decided   the   matter.   But   what   is   relevant   to   test   the 




validity   of   the   advertisement,   was   the   intention   of   the   appellant   when   the 




advertisement was issued. At that time, the appellant had the clear intention 




to   enforce   the   Recruitment   Rules   in   future   as   they   had   been   made   in 




consultation   with   UPSC,   in   accordance   with   the   UGC   guidelines   and   the 




Rules   had   been   sent   to   the   Central   Government   for   being   notified   by   the 




President and the matter was pending consideration for a few months when 




the advertisement was issued. The appellant at that time had no inkling that 




there   would   be   inordinate   delay   or   the   Rules   may   not   be   notified   by   the 




President.   Therefore,   the   advertisement   in   terms   of   the   2000   Recruitment 




rules was valid. 










11.     Even   in   the   absence   of   valid   rules,   it   cannot   be   said   that   the 




advertisement was invalid. In exercise of its executive power, the appellant 




could   issue   administrative   instructions   from   time   to   time   in   regard   to   all 




matters   which   were   not   governed   by   any   statute   or   rules   made   under   the 




Constitution   or   a   statute.   In   fact   it   is   the   case   of   the   respondents   that   the 



                                              11








appellant   had   issued   such   instructions   on   20.8.1987   directing   that   the 




lecturers   from   UT   cadre   should   be   promoted   as   principals.   In   fact,   the 




administrator  of  appellant   had   issued  a   notification   on   13.1.1992  adopting 




the   corresponding   Punjab   Rules   to   govern   the   service   conditions   of   its 




employees. If so, the administrator of appellant could issue fresh directions 




in regard to qualifications for recruitment. The Recruitment Rules made by 




the   Administrator   were   duly   notified.   Though   they   were   not   rules   under 




Article   309,   they   were   nevertheless   valid   as   administrative   instructions 




issued   in   exercise   of   executive   power,   in   the   absence   of   any   other   Rules 




governing   the   matter.   Once   the   recruitment   rules,   made   by   the 




Administrator,   were   notified,   they   became   binding   executive   instructions 




which   would   hold   good   till   the   rules   were   made   under   Article   309. 




Therefore, the advertisement issued in terms of the said Recruitment Rules 




was valid.










12.     The Tribunal and High Court also committed an error in holding that 




the appellant could not prescribe the qualifications of Ph.D. for the post of 




principal   merely   because   earlier  the  said  educational  qualification  was  not 




prescribed   or   insisted.     The   Recruitment   Rules   were   made   in   consultation 




with   UPSC,   to   give   effect   to   the   UGC   guidelines   which   prescribed   Ph.D. 



                                                12








degree as the eligibility qualification for direct recruitment of Principals. In 




fact, even the 1976 Punjab Rules prescribed Ph.D. degree as a qualification. 




In several States, Ph.D. is a requirement for direct recruitment to the post of 




a college Principal. When the said qualification is not unrelated to the duties 




and functions of the post of Principal and is reasonably relevant to maintain 




the   high   standards   of   education,   there   is   absolutely   no   reason   to   interfere 




with the provision of the said requirement as an eligibility requirement. It is 




now   well   settled   that   it   is   for   the   rule-making   authority   or   the   appointing 




authority to prescribe the mode of selection and minimum qualification for 




any recruitment. Courts and tribunals can neither prescribe the qualifications 




nor   entrench   upon   the   power   of   the   concerned   authority   so   long   as   the 




qualifications prescribed by the employer   is reasonably relevant and has a 




rational nexus with the functions and duties attached to the post and are not 




violative   of   any   provision   of   Constitution,   statute   and   Rules.   [See  J.  




Rangaswamy vs. Government of Andhra Pradesh  - 1990 (1) SCC 288 and 




P.U. Joshi vs. Accountant General  - 2003 (2) SCC 632]. In the absence of 




any   rules,   under   Article   309   or   Statute,   the   appellant   had   the   power   to 




appoint   under   its   general   power   of   administration   and   prescribe   such 




eligibility   criteria   as   it   is   considered   to   be   necessary   and   reasonable. 




Therefore, it cannot be said that the prescription of Ph.D. is unreasonable. 



                                                13








13.     The Tribunal and the High Court have held that in the years 1989 and 




1991, the Tribunal had accepted the earlier administrative instructions dated 




20.8.1987 which required the UT cadre employees to be considered for the 




post   has   to   be   followed.   The   fact   that   at   that   time   Ph.D.   degree   was   not 




insisted upon, does not mean that for all times to come, Ph.D. degree could 




not   be   insisted.   Ph.D.   degree   was   made   a   qualification   because   UGC 




guidelines required it for direct recruitment post and the UPSC approved the 




same.   Therefore,   merely   because   on   some   earlier   occasions,   the   posts   of 




Principal were filled by UT cadre lecturers without Ph.D. degree, it cannot 




be argued that the Ph.D. degree cannot be prescribed subsequently. 










14.     The Tribunal and High Court were not justified in holding that 1976 




Punjab Rules were not applicable on the ground that no material had been 




placed to show that they were followed while appointing a principal in the 




past.   The fact that the appellant  had issued a notification dated 13.1.1992 




adopting   the   corresponding   Punjab   Rules   governing   the   conditions   of 




service of its employees, is not disputed. Therefore when appellant acted in 




accordance with the said directions, it is not necessary to consider whether 




there were any occasion between 1992 to 2001 to invoke the said rules or 




whether they were in fact invoked. The notification dated 13.1.1992 could 



                                                14








not   have   been   brushed   aside   in   the   manner   done   by   the   Tribunal   and   the 




High Court. 










15.     In   view   of   the   above,   we   allow   this   appeal   and   set   aside   the   order 




dated 22.4.2002 of the Tribunal and the order dated 26.10.2005 of the High 




Court.   The   original   application   (OA   No.648   -   CH   of   2001)   filed   by 




respondents   2   to   5   before   the   Tribunal   is   dismissed.   The   prayer   that 




Chandigarh   Administration   should   be   directed   to   fill   the   vacancies   of 




Principals in accordance with the eligibility criteria as was prevalent prior to 




the   issue   of   the   notification   dated   14.7.2001,   is   rejected.   The   notification 




prescribing educational qualification of doctorate degree or equivalent with 




55% marks at the Master's Degree Level examination or 12 years teaching 




experience   of   degree   classes   in   a   college   affiliated   to   any   university   or 




equivalent  is upheld as validly prescribing the qualifications for filling the 




post by direct recruitment. 




  




                                                          ................................J.


                                                          (R V Raveendran)










New Delhi;                                                ...............................J.


September 2, 2011.                                        (Markandey Katju)