Administration through the Director Public Instructions (Colleges), Chandigarh Vs.
Usha Kheterpal Waie & Ors.
J U D G M E N T
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, 2Sector 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.
Feeling aggrieved, the UT cadre lecturers again approached the Tribunal and
their applications were allowed by the Tribunal by order dated 312.1.1991, 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.
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.
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
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 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
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
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 6letter 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.
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 7dated 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
aggrieved, the appellant has filed this appeal by special leave raising the following
appellant has framed the draft Rules in consultation with UPSC and had been
placed the Rules before the 8central 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.
Tribunal and the High Court could not substitute the eligibility requirements
prescribed by the appellant.
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.
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
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 criterion 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 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.
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 11appellant 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.
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. 12degree 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.
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.
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 14not have been brushed aside in the manner done by the Tribunal
and the High Court.
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
(R V Raveendran)
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