LAW FOR ALL : 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.

Wednesday, March 18, 2015

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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. _________ OF 2015
[ARISING OUT OF SLP (CIVIL) NOS.36023-36032 OF 2010]

P. SUSEELA & ORS. ETC. ETC. ...APPELLANTS

VERSUS

UNIVERSITY GRANTS COMMISSION
& ORS. ETC. ETC. ...RESPONDENTS

WITH

CIVIL APPEAL NO. __OF 2015
[ARISING OUT OF SLP (C) NO.10247 OF 2011]

CIVIL APPEAL NO. __OF 2015
[ARISING OUT OF SLP (C) NO.14985 OF 2011]

CIVIL APPEAL NO. __OF 2015
[ARISING OUT OF SLP (C) NO.34196 OF 2012]

CIVIL APPEAL NOS. __OF 2015
[ARISING OUT OF SLP (C) NOS.36362-36364 OF 2012]

CIVIL APPEAL NOS. __OF 2015
[ARISING OUT OF SLP (C) NOS.38991-38992 OF 2012]

CIVIL APPEAL NO. __OF 2015
[ARISING OUT OF SLP (C) NO.1529 OF 2013]

CIVIL APPEAL NO. __OF 2015
[ARISING OUT OF SLP (C) NO.1817 OF 2013]

CIVIL APPEAL NO. __OF 2015
[ARISING OUT OF SLP (C) NO.4619 OF 2013]

CIVIL APPEAL NO. __OF 2015
[ARISING OUT OF SLP (C) NO.4925 OF 2013]

CIVIL APPEAL NO. __OF 2015
[ARISING OUT OF SLP (C) NO.17939 OF 2013]

CONTEMPT PETITION (CIVIL) NOS.286-287 OF 2014
IN
SLP (C) NOS.3054-3055 OF 2014

CIVIL APPEAL NOS. __OF 2015
[ARISING OUT OF SLP (C) NOS.3054-3055 OF 2014]

CIVIL APPEAL NO.___________ OF 2015
[ARISING OUT OF SLP (C) NO.3753 OF 2014]

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 sub-section (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.

LAW FOR ALL

LawforAll

advocatemmmohan

WELCOME TO LEGAL WORLD

Wednesday, March 18, 2015