Yogendra
Singh Rawat & Ors Vs. Hemwati Nandan Bahugunagarhwal University & Ors [1997] INSC 123 (5 February 1997)
S.
SAGHIR AHMAD, D.P. WADHWA
ACT:
HEAD NOTE:
THE
15TH DAY OF FEBRUARY, 1998 Present:
Hon'ble
Mr. Justice S. Saghir Ahmad Hon'ble Mr. Justice D.P. Wadhwa Harish Salve, R.B.Mehrotra,
Sr. Advs., R.K.Gupta, Uma Datta, D.K. Garg, M.K.Garg, (R.C.Verma and Chaitanya Siddarth)
Advs. for R.B.Misra, Adv./Advs. with him for the appearing parties.
The
following Judgment of the Court was delivered: (With
CA 627 of 1998 (a) SLP (C) No.266/94) D.P. Wadhwa. J.
Special
leave granted.
The
appellants filed writ petitions in the High Court of Judicature at Allahabad
praying that they be granted substantive appointments as lecturers in the Hemwati
Nandan Bahuguna Garhwal University (for short `the University') in terms of the
Uttar Pradesh State Universities (Second Amendment) Ordinance (No.44 of 1991)
which was later passed as Act No.1 of 1992 by the U.P. Legislature called the
U.P. State Universities (Amendment) Act, 1992 (for short, the `amending Act').
A Division Bench of the High Court, however, did not find any merit in the writ
petitions and dismissed the same by judgment dated August 20, 1993.
Aggrieved,
the appellants have come to this Court.
Originally
there were eight appellants. Appellants Y.S. Rawat, G.P. Sharma and J.P. Madhwal
are stated to be no longer interested in pursing their appeals. The appellants
before us are now Dr. L.P. Lakhera, Shri R.S. Negi, Dr. M.S. Shri Ajay Pal
Singh and Dr. Surendra Joshi.
Sub-section
(6) of Section 13 of the Universities Act provides that where any matter is of
urgent nature requiting immediate action and the same cannot be immediately
dealt with by any officer or authority or any other body of the University
empowered by or under the Universities Act then to deal with that Situation the
Vice-Chancellor may take action as he may deem fit. He shall thereafter
forthwith report the action taken by him to the Chancellor and also to the
officer, authority or other body who or which in the ordinary course would have
dealt with the matter. Under sub- section (8) of Section 13 where exercise of
power by the Vice Chancellor under sub-section (6) involved the appointment of
an officer or a teacher of the University, such appointment shall terminate on
the appointment being made in the prescribed manner or on the expiration of a
period of six months from the date of the order of the Vice- Chancellor,
whichever is earlier. That would mean that the appointment of a lecturer made
by the Vice-Chancellor could not last for more than six months. Section 31 of
the Universities Act provides for the appointment of teachers of University.
Sub-section (1) thereof provides that the teachers of the University shall be
appointed by the Executive Council on the recommendations of a Selection
Committee in the manner laid down in that Section. Sub- section (10) of Section
31 provides that no selection for any appointment shall be made except after
advertisement of the vacancy in at least three issues of two newspapers having
adequate circulation in the State of Uttar Pradesh.
Section
49 deals with Statutes and clause (d) lays down that the Statutes may provide
for the classification and recruitment (including minimum qualifications and
experience) of the teachers of the University. As to what are the
qualifications prescribed for a lecturer by relevant Statutes of the
University, it will be appropriate to refer to the Ordinance which was
subsequently replaced by Act No.1 of 1992, Sub-section (2) of Section 1 of this
amending Act provided that this Act shall be deemed to have come into force on
November 22, 1991. Sections 2 and 3 of this Act amending the Principal Act,
that is the Universities Act, are as follows:
"2.
In Section 13 of the Uttar Pradesh State Universities Act., 1973, as amended
and re-enacted by the Uttar Pradesh Universities (Re- enactment and Amendment)
Act, 1974 hereinafter referred to as the Principal Act:- (a) in sub-section
(6), after the words "where any matter" in words "other than the
appointment of teacher f the University" shall be inserted.
(b) in
sub-section, the words "or a teacher of the University" shall be
omitted.
3. In
Section 31 of the Principal Act:- (a) in sub-section (1) words "The
selection committee shall meet as often as necessary" shall be inserted at
the end:- (b) in sub-section (3) after clause (b) and the provisions thereto,
the following clause shall be inserted, namely:- (c) any teacher of the
Universities who was appointed as lecturer on or before June 30, 1991 without
reference to the Selection Committee by way of a short terms arrangement in
accordance with the provisions for the time being in force for such
appointment, may be given substantive appointment by the Executive Council, if,
any substantive vacancy of the same cadre and grade in the same department is
available on November 22, 1991 if such teacher:- (I) is serving as such on
November 22, 1991 continuously since such initial appointment by way of short
term arrangement;
(II) possessed
on November 22, 1991 the qualification required for
regular appointment to the post under the provisions of the relevant statutes
in force on the date of the initial appointment:
(III) has
been found suitable for regular appointment by the Executive Council."
Therefore, the controversy before the Court was as to what would be the
qualifications for a lecturer for the amending Act to be applicable. While the
appellants contended that the qualifications would be those as existing when
the amending Act came into force, the stand of the University was that the
qualifications would be as on the date of the initial appointment of the
appellants. The High Court held that the qualification would be those as
existing when the initial appointments under Section 13(6) of the Principal Act
were made and not when the amending Act came into force and that is November 22, 1991. As to what were the qualifications
prescribed for lecturer on the dates when respective appointments came through,
we may refer to the relevant Statutes 11.01 of the University. First time the
qualifications and appointments of teachers in university was prescribed on June 25, 1978. The statute was amended in the
year 1980 and subsequently as under:
"QUALIFICATIONS
AND APPOINTMENT OF TEACHERS IN THE UNIVERSITY 11.01 (1) In the case of the
Faculties of Arts, Commerce, and Science, the following shall be the minimum
following shall be the minimum qualifications for the post of a Lecturer in the
University, namely - (a) a doctorate in the subject of study concerned or a published
work of a high standard in that subject;
and
(b) consistently good academic record (that is to say, the overall record of
all assessments throughout the academic career of a candidate), with first
class or high second class (that than 54 per cent marks) Master's degree in the
subject concerned or equivalent degree of a foreign University in such subject.
(2)
Where the Selection Committee is of opinion that the research work of a
candidate, as evidenced either by his thesis or by his published work, is of a
very high standard, it may relax any of the requirements specified in sub-
clause (b) of Clause (1).
(3) If
a candidate possessing a qualification prescribed in sub/clause (a) of Clause
(1) is not available or is not considered suitable a person possessing a
consistently good academic record (due weightage being given to M.Phil, or
equivalent degree or research work of quality) may be appointed on the
condition tat he will attain the prescribed qualification (namely doctorate or
published work as aforesaid) within five years from the date of his
appointment:
Provided
that where the teacher so appointed fails to attain the prescribed
qualification within the said period of five years, he shall not be entitled to
yearly increments after such period, until he attains such qualifications.
(4)................
11.01
(1)(b) : Consistently good academic record with first or high second class
Master's degree, or an equivalent degree of a foreign University in a relevant
subject.
Sub-clause
(a) of Clause (7) of Statute 11.01 provided that marks above the mid-point
between the minimum percentage or marks fixed by the University for award of
first and second divisions are said to be high second class marks. in exercise
of power section (1) read with Section 15 of U.P. State Universities Act, 1973,
read with Section 21 of the Uttar Pradesh General Clauses Act, the Governor of
Uttar Pradesh, amended the First Statute of the University called the 25th
Amendment. This was made on March 25, 1997.
For
existing Statute 11.01 the following was substituted:
"11.01
(1) in the case of Faculty of Arts (except the Departments of Music, Drawing
and Painting), and the faculties of Commerce and science the minimum
qualifications for the post of a Lecturer in the University shall be Master's
Degree or an equivalent Degree or a foreign University in the relevant subject
with at lest 55 per cent marks of its equivalent grade and consistently good
academic record.
(2) In
the case of Faculty of Education, the minimum qualifications for the post of a
Lecture in the University shall be Master's degree or an equivalent degree of a
foreign University in Education (that is an M.Ed. degree) with at least 55 per
cent marks or its equivalent grade and consistently good academic record.
(3)......................
(4)......................
(5)
For the purpose of this Statute:- (a) A candidate (other than a candidate for Lecturership
in the Faculties of Education and Law) having obtained either 55 per cent marks
in Bachelor's degree examination and second class in Intermediate examination,
or 50 per cent marks in each of the two examinations separately is said to have
consistently good academic record;
(b) A
candidate for Lecturership in the Faculty of Education having obtained either
55 per cent marks in B.Ed. degree examinations and second class in any other
Bachelor's degree examination or 50 per cent marks in each of the two
examinations separately, is said to have consistently good academic record;
(c)....................
(6) for
appointment to the post of Lecturer only those candidates shall be eligible
who, besides fulfilling the minimum academic qualifications prescribed for the
post of Lecturer, have qualified in a comprehensive test, if any, to be
conducted as per scheme of University Grants Commission." This is Statute
11.01 was further Amended on 31.13.1990 which is known as 26th Amendment. In
sub-clause (6) of the First Statue of 1978 as amended in March, 1989, following
proviso was inserted:
"Provided
that a candidate:- (1) Who was passed University Grants, Commission or Council
of Scientific and Industrial Research or Junior (Research Fellowship
Examination: (or) (2) Who are already been awarded Ph.D or M.Phil Degree; or ]
(3) Who will be awarded M.Phil degree upto December, 1990 or Ph.D. degree upto
December, 1992 shall not be required to qualify in such a comprehensive
test." Thus, the effect of the amending Act amending the Principal Act and
by insertion of clause (c) to sub-section (3) of Section 31 would be that any
lecturer who was appointed without reference to the Selection Committee under
sub-section (6) of Section 13 would be given substantive appointment on the
conditions that (1) a substantive vacancy was a available on November 22, 1991;
(2) his appointment was on or before June 30, 1991 and was serving as such on
November 22, 1991 continuously since his initial appointment; (3) he continued
to possess qualifications as prescribed under relevant provisions of the
statutes at the time of initial appointment on November 22, 1991; and that (4)
he has been found suitable for regular appointment by the Executive Council of
the University.
It
will also be seen that before March 1989 for appointment as a lecturer, it was
necessary that a person should possess a Doctorate degree in the subject and
consistently have good academic record. However, before this date of no
candidate having Doctorate degree was available but the Selection Committee was
of the opinion that the Research and thesis work published by a candidate was
of a very high standard it may relax any such requirement of possessing a
Doctorate degree. After May
25, 1989 entire
statute 11.01 was substituted and now a candidate must posses good academic
record that is he should have obtained either 55 per cent marks in Bachelor Degree
Examination, and Second Class in Intermediate Examination or 50 per cent marks
in each of the two examinations separately subject of course his possessing
consistently good academic record.
Apart
from possessing good academic record under sub-section (6) it is necessary for
a candidate to have passed the qualifying comprehensive test conducted by the
University Grants Commission. But then he is exempted from that test if he had
already been awarded Ph.D. and M.Phil degree or who would be awarded M.Phil
degree upto December 1990 or Ph.D. degree upto December 1992.
In University of Delhi vs. Raj Singh & Ors. [1994] Supp. (3) SCC 516, the
question before this Court was if the University Grants Commission
(Qualifications Required of a Person to be Appointed to the teaching Staff of a
University and Institutions affiliated to it) Regulation, 1991 were valid and
mandatory and if so was the Delhi University obliged under law to comply
therewith. This Court gave the answer in affirmative. It referred to Entries 63
and 66 of List I in the Seventh Schedule of the Constitution of India and to
the provisions of the University Grants Commission Ac t, 1956 vis-a-vis- Delhi
University Act, 1922. The University Grants Commission Act was enacted under
the provisions of Entry 66 of List I of the Seventh Schedule. It entitled
Parliament to legislate in respect of "coordination and determination of
standards in institutions for higher education or Research and scientific and
technical institutions." This Court observed that Entry 66 of List I give
power to the Union to see that the required standard
of higher education in the country was maintained. It was the exclusive
responsibility of the Central Government to coordinate and determine the
standards of higher education.
The Court
then observed that such powers would comprehend the power to require those who
possess the educational qualifications required for holding the post of
lecturer in Universities and colleges to appear for a written test, the passing
of which would establish that they possess the minimal proficiency for holding
such post. That, however, would not mean the University cannot prescribe
qualifications over and above those prescribed by the University Grants
Commission.
In
University Grants Commission vs. Sadhana Chaudhary & Ors, [(1996) 10 SCC
536, this Court considered the recommendations of the University Grants
Commission made in 1991 prescribing minimum qualification for the post of
Lecturers in the Universities and Colleges which were amended by circulars
dated 10.2.1993 and 15.6.1993. The recommendations in the Regulations of 1991
and the two circulars as quoted in the judgment are as under:
"Good
academic record with at least 55% marks or an equivalent grade at Master's
level in the relevant subject from an Indian University or an equivalent degree from a
foreign University. Candidates besides fulfilling the above qualifications
should have cleared the eligibility test for lecturers conducted by UGC, CSIR
or similar test accredited by the UGC." By Circular dated 10.2.1993 the
UGC granted exemption from appearing in the eligibility test to the following
categories:
1. All
candidates who have passed UGC/CSIR J.R.F. Examination.
2. All
candidates who have already been awarded Ph. D. degree.
3. All
candidates who have already been awarded M.Phil. degree up to 31.3.1991.
4. All
candidates who will submit their Ph.D. thesis up to 31.12.1993.
By
Circular dated 15.6.1993 in respect of candidates falling in category (3)
exemption from appearing in the eligibility test was extended to candidates who
had been awarded M.Phil. degree up to 31.12.1992.
By a
notification dated 21.6.1995, the 1991 Regulations have been amended and the
following provision has been added below the requirement regarding clearing the
eligibility test for appointment on the post of Lecturer:
"Provided
that candidates who have submitted Ph.D. thesis or passed the M.Phil. examination
by 31.12.1993 are exempted from the eligibility test for lecturers conducted by
UGC, CSIR or similar test accredited by the UGC." Since the Executive
Committee of the University made recommendations in 1992 Statute 11.01 as
amended by 26th amendment would apply in the cases of the appellants.
By
letter dated July 5/17.6.1992 University informed the appellants that they were
not found fit to be regularised on the post of lecturers. The letter is to the
following effect:
"Sub:
Regularisation of ad hoc lecturers Sir, As per the conditions mentioned in
Ordinance No.44 dated 22/11/91 the matter regarding the regularisation
of all the ad hoc lecturers was put for consideration before the Executive
Council on 22/4/1992. The Executive Council after having
considered your application for regularisation seriously, did not find you fit
to be regularised on the post of lecturer. We regret for the same.
For
your information you could same. For your information you could not qualify the
following conditions:
Recommendation
: No Reason :Not qualified Were not working on 30/6/1991.
Sd/Dy.
Registrar (Admn.) For Registrar." It has been rightly held by the High
Court that artificial break in service cannot be taken into account while
considering the question that any of the appellants was not working
continuously as on November 22,1991 from the date of his initial appointment on
or before June 30, 1991.
High
Court has also held that opportunity was given to the appellants when the
Executive Committee considered their cases. Taking into account the relevant
statutes of the University, the High Court was of the view that if any one of
the appellants had already been awarded Ph.D. or M. Phil, degree or will be
awarded M.Phil degree upto December 1990 or Ph.D. degree upto December 1992 he
would be qualified for the post of lecturer. Thereafter the High Court
addressed itself to the question if the appellants who had been given short
term ad hoc appointments were entitled to substantive appointments. It noted
that procedure for making appointments was that the vacancy had to be
advertised in accordance with sub-section (1) of Section 31 of the Act and in
absence of the advertisement there would be violation of Article 16 of the
Constitution and any such appointments would be rendered illegal. The Executive
Committee could make appointment only on the basis of the recommendations made
by the Selection Committee. The High Court then observed as under:
"All
the ad hoc lecturers whose cases were considered by the Assessment Committee on
March 7, 1992 and by the Executive Council on April 22, 1992 were given ad hoc
appointments without following the rules namely without advertisement of
vacancy and without having faced selection committee. They are claiming the
benefit of U.P. Act No.1 of 1992 in order to get a substantive appointment and
as a corollary they must satisfy the requirement of the said Act and if the
requirement of the Act is that they should possess prescribed qualification for
regular appointment under the relevant Statutes, they must do so. The fact that
at some earlier stage the University made an advertisement in which wrong or
lesser qualification was mentioned is wholly irrelevant and that advertisement
cannot override the requirement of the amending Act. It has been consistently
held that a person not possessing prescribed qualification cannot be appointed
in a University or in an affiliated college and if such a person is appointed,
the appointment itself becomes illegal." High Court then concluded that it
was clearly of the opinion that in order to get the benefit of the Act 1 of
1992 amending the principal Act the ad hoc lecturers much possess the
qualifications required for regular appointment under the provisions of the
relevant statutes as laid down in sub-section (ii) of clause (c) of Section 31
of the Act.
High
Court said that the qualifications prescribed prior to the amendment would not
get revived. High Court did not rely on Single Judge decision of that court in
Writ Petition No.25255 of 1992 Dr. Siya Ram Singh vs. Director Higher Education
where benefit or regularisation had been given to ad hoc lecturers of the
affiliated colleges under Ordinance No.43 of 191 which was also promulgated on
November 22, 1991 with similar provision as in the present case. In that case
the initial ad hoc appointment itself having been held to be illegal, regularisation
had ben refused by the authorities.
It was
also found that the petitioners therein did not possess the prescribed
qualifications. As to the reasoning of the learned single Judge, the High Court
not only distinguished that judgment but rater disapproved the same.
It
also noticed that in the case before the learned Single Judge the question was
appointment to the affiliated 14.10.91 for almost six months was an artificial
break in his service not to be taken into account. In Intermediate and B.A.
examinations he got 45.3% and 45/5% marks respectively. His claim that he did
work from 1.4.91 to 13.10.91 without pay due to financial constraints in the
University is not acceptable. Moreover no vacancy in the post of lecturer in
Geography was available on 22.11.91. His claim for substantive appointment
could not be recommended.
His
having obtained a Degree of Doctor of Philosophy in 1990 did not advance his
case for his getting substantive appointment.
Shri
R.S. Negi was appointed on 2.11.91 as found by the High Court and he was not
working as such on 30.6.91. In his affidavit filed in these proceeding he
submitted a certificates of the Registrar of the University stating that R.S. Negi
had submitted his thesis on 2.11.94 and he was awarded degree of Doctor of
Philosophy in Geology in the Year 1996. At the relevant time no post of
lecturer in his subject was available. Negi, therefore, could not fulfil the
qualifications prescribed and was not recommended for colleges of the
University while in the present case appointment was in the University it self
which was governed by separate enactment. The High Court then examined the
individual cases of the appellants and found that they did not possess the
requisite qualifications and further that their cases had been considered by
the Executive Committee who did not find them suitable to be given regular
appointments. They High Court, therefore, by judgment dated August 20, 1993
dismissed the writ petitions holding that these lacked merit and vacated the
interim orders passed in favour of the appellants. When the matter came to this
Court in special leave petitions while granting leave stay was declined.
Keeping
the aforesaid parameters in view, we may now consider the cases of each of the
appellants.
Dr.
L.P. Lakhera as found by the High Court was appointed as a part-time lecturer
on 16.8.1990 for two months. He was given fresh appointment on 14.10.91. He
was, therefore, not working on 30.6.91. It could not be said that break in
service from 30.4.91 to substantive appointment.
Dr.
M.S. Sati was appointed as part-time lecturer on 8.11.1990 for two months and
his appointment came to an end on 8.1.91. He was given fresh appointment as
part-time lecturer for two months on 14.2.91 which ended on 14.4.91.
He was
thereafter appointed on regular basis for six months on 11.9.91. In his
affidavit filed in this Court Dr. Sati submitted a certificates from the
Registrar of the University certifying that he had submitted his thesis in
Geology on 3.9.94. He was awarded degree of Doctor of Philosophy in 1996.
Assuming that there was an artificial break in his service Dr. Sati had neither
qualified in the comprehensive test of the UGC nor was he awarded M.Phil degree
in December 1990 or Ph.D. degree in December 1992. He obtained 45% marks in the
Intermediate examination and 60% in B.Sc. examination. Since he did not fulfil
the qualifications prescribed his name was not recommended for substantive
appointment.
Shri
Ajay Pal Singh was appointed as lecturer on 2.11.91. Earlier he had been
appointed on 7.9.88 for a period of two months. In this affidavit filed in this
Court he stated that he submitted his thesis for D.Phil in 1993 and was awarded
D.Phil degree in 1993. In support of his claim that he had submitted his thesis
he has not filed any certificate from the Registrar of the University. He
obtained 48% marks in Intermediate and 52% in B.A.
examination.
No post in his subject was also available on 2.11.91. Since Sri Singh did not fulfil
the criteria for substantive appointment his case was not recommended.
Dr. Surendra
Joshi was appointed as part-time lecturer on 13.8.90 for two months, which
appointment continued upto 25.7.91. He was given fresh appointment on 15.6.91
which continued uptil 25.7.91. After about nearly one and a half months Dr.
Joshi was again appointed on 11.9.91 and that appointment continued upto
11.3.92. In his case it could be said that he was working continuously from
30.6.91 till the date of the commencement of the Ordinance. In Bachelor's
degree Dr. Joshi passed in third division though Intermediate in the second
division. He obtained degree in D.Phil in 1988. As he did not fulfil the
criteria he was not recommended for substantive appointment by the Executive
Committee.
We are
therefore the view that the High Court was right in coming to the conclusion that
the appellants did not satisfy the requisite qualifications or the criteria as
laid for their appointment as lecturers in the University. We do not find any
infirmity in the orders of the Executive Committee of the University not
recommending the appellants for substantive appointment as lecturers in the
University.
These
appeals, therefore, fail and are dismissed.
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