Anil Kumar v. State of Bihar — 1995 DIGILAW 334 (PAT)

JUDGMENT Shashank Kumar Singh, J. In the present application filed under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issuance of a writ in the nature of mandamus/certiorari or any other appropriate writ, order or direction holding that the Bihar State Universities (2nd Amendment) Ordinance, 1994 and the Patna University (3rd Amendment) Ordinance, 1994, as contained in Annexure-5 and 5/1 are ultra vires. Further prayer• has been made for quashing the corrigendum/advertisement, as contained in Annexure-6 so far as it provides exemption to the candidates, who had done Ph.D. or even submitted Ph.D. thesis up to 31.12.1993 or have done M. Phil up to 31.12.1992 from appearing in the Bihar Eligibility Test to be conducted by the Bihar University Service Commission (hereinafter referred to as the 'Commission'). A prayer has also been made for quashing the directions of the Commission, as contained in Annexures 7 and 7/1. 2. Learned counsel appearing on behalf of the petitioner has contended that the minimum essential qualification for appointment to the post of Lecturers in any University/Constituent College, Affiliated College was high 2nd Class Master's Degree in that subject, subject to the said candidate passing National Eligibility Test conducted by the Commission or any other equivalent examination, which was approved by the University Grants Commission. It has further been contended that the circular of the University Grants Commission laying down the minimum essential qualification, as contained in Annexure-2, cannot be altered or modified by way of letters or instructions issued by the Commission. 3. Another submission by the learned counsel for the petitioner is that the provision of appointment of lecturers being covered by Entry 66 of List 1 of 7th Schedule of Constitution of India, the State Legislature does not have power to legislate in the said field. The said entry is only subject to the provisions of the Central Act, Le., University Grants Commission Act. 4. Further contention of learned counsel for the petitioner is that the Bihar Ordinance, 1994 (hereinafter referred to as 'Ordinance 1994') as contained in Annexures 5 and 5/1 and the advertisement, subsequent thereto, as contained in Annexure-6 so far as it gives exemption to M.Phil/Ph.D candidates are ultra vires and are fit to the quashed. 4. Further contention of learned counsel for the petitioner is that the Bihar Ordinance, 1994 (hereinafter referred to as 'Ordinance 1994') as contained in Annexures 5 and 5/1 and the advertisement, subsequent thereto, as contained in Annexure-6 so far as it gives exemption to M.Phil/Ph.D candidates are ultra vires and are fit to the quashed. According to the learned counsel the same has been done to accommodate a particular class of persons which is violative of Article 14 of the Constitution of India. 5. Learned counsel appearing on behalf of the State has filed a counter- affidavit and stated that the Bihar Universities (2nd Amendment) Ordinance, 1994 and Patna University (3rd Amendment) Ordinance, 1994 were issued under the guidelines laid down by the Commission. It has further been stated that the State was competent in promulgating those ordinances and the said ordinances were promulgated in accordance with Section 26 of the University Grants Commission Act. Reliance has been placed upon a decision in the• case of Bhagalpur University Research Scholars vs. State of Bihar & ors. ( 1994 (2) PLJR 168 ) in which holding of eligibility test itself was under challenge. The present Circular as well as the Ordinance came into consideration and the same were held to be valid and the Chancellor was found competent to promulgate the said Ordinance. Further reliance has been placed upon a decision in the case of University of Delhi vs. Raj Singh and others (A.I.R. 1995, S.C. 336). In the said judgment, while affirming the judgment of the Delhi High Court, it has been held that the U.G.C. was competent to issue regulation for appointment of lecturers from time to time. It has also been held that if the University wanted to proceed on its own and make appointment even without following those regulations, it was free to do so. It has also been held that if the University wanted to proceed on its own and make appointment even without following those regulations, it was free to do so. It was open to the authorities of the University to make appointments either by following the said Regulations or by seeking prior approval for the relaxation of this requirement in a case, or it may appoint as lecturer one who does not meet these requirements without having first obtained the U.G.C.’s approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the U.G.C. forfeit its grant from the U.G.C. If however, it did show cause to the satisfaction of the UGC., it not only would not forfeit its grant but the appointment made without obtaining the U.G.C.'s prior approval would stand regularised. As such, according to the learned counsel, in view of the said judgment the U.G.C. was competent in issuing regulation, relaxing the minimum essential qualification for appointment as a lecturer and the Chancellor was also competent to promulgate an ordinance in consonance with the said regulations. 6. A counter-affidavit has also been filed on behalf of Respondent No.3, the University Grants Commission. In the said counter-affidavit circumstances have been explained as to why the candidates who have been awarded M. Phil. degrees upto 31.12.92 and those candidates who have been awarded Ph. D degrees or who had submitted their thesis upto 31.12.93 have been exempted by Ordinance, 1994 from appearing at the eligibility test for lecturership. It has been stated that in exercise of powers under Section 26 (i) (e) of the University Grants Commission Act, 1956, regulations were made in the year 1982 regarding qualification required by a person to be appointed to the teaching staff of a University or other institutions affiliated to the said University. As per the said regulations the minimum qualifications prescribed for appointment to the post of lecturer included a Doctorate degree or a research work of equally high standard; weightage was also given to M. Phil. or equivalent degree or research work of quality. These qualifications were in consonance with the recommendation of the Sen Committee. The University Grants Commission in 1994 introduced a National Level Test for scholarships of promising candidates which scholarship was known as Junior Research Fellowship (JRF). or equivalent degree or research work of quality. These qualifications were in consonance with the recommendation of the Sen Committee. The University Grants Commission in 1994 introduced a National Level Test for scholarships of promising candidates which scholarship was known as Junior Research Fellowship (JRF). Subsequently, the Union of India after considering the recommendation of the U.G.C. decided on 17.6.1987 to revise the pay scale of teachers in Central Universities and recommended the revision of pay scale to the State Govt. In view of the recommendation of the Union of India in or about December, 1989 it became necessary to' introduce a National Level Qualifying Test for eligibility for lecturer which was combined with the scholarship test introduced in 1984 and those candidates, who were holding M. Phil/Ph. D. were given exemption from the said examination by the circular in January, 1990. This was in view of the modification of the Mehrotra Committee Report in the implementation and because the minimum statutory eligibility under the 1982 regulations included a research degree. 7. According to the learned counsel the present regulations were introduced in the year 1991. When the present regulation was gazetted it was thought necessary to provide for a transitional period as those who have already entered or done M. Phil/Ph. D. course would have a legitimate expectation not to sit for the National Eligibility Test in view of the past practice. According to the learned counsel at the time of introducing the present regulations persons, who were qualified to be appointed as lecturer as per the 1983 Regulations and possessed the minimum qualification, had a reasonable expectation and, as such, it is just and proper to grant exemption to such candidates during the transitional period. 8. Learned counsel appearing on behalf of Respondent No. 3 has further relied upon a decision in the case of University of Delhi vs. Raj Singh and others (1994 Supp. (3) Supreme Court Cases 516). By the said judgment the regulations as framed by the University Grants Commission have been held to be valid. It has been stated that specially in view of clause 2 of the U.G.C. Regulations, 1991, the U.G.C. was competent to issue circulars granting exemptions for a time bound period. (3) Supreme Court Cases 516). By the said judgment the regulations as framed by the University Grants Commission have been held to be valid. It has been stated that specially in view of clause 2 of the U.G.C. Regulations, 1991, the U.G.C. was competent to issue circulars granting exemptions for a time bound period. Learned counsel for the U.G.C. has further stated that the• said exemption is only one time exemption and it has not been granted to all the candidates, who have applied for lecturership or had done M. Phil, or Ph. D. but the said concession has only been granted to those candidates, who had already started doing Ph. D. or M. Phil. course pursuant to old regulation and as it takes about 3 years to do Ph. D. and two years to complete the M. Phil. course as such, exemption has only been granted to such candidates, who have done/submitted Ph.D. thesis by 31.12.93 or have done their M.Phil. course by 31.12.1992. He has further contended that this was only one time exemption during the transitional period and no further exemption was likely to be granted. 9. Learned counsel appearing on behalf of the Respondent No.3, the University Grants Commission, has further contended that similar matters have already been adjudicated by this court in CWJC No. 321/94 and CWJC No. 13396/92. After disposal of the aforesaid writ petitions a review petition has also been filed and the same was disposed of by order dated 27.4.94 as contained in Annexure-4/1 to the present writ application. By the said order paragraph 40 of the judgment passed in the above mentioned writ applications had been modified to the extent indicated below : "The respondents may consider the candidature of such persons, who are also eligible to be considered in terms of the Regulations framed by the University Grants Commission as has been stated in the earlier part of the judgment." In view of the decision of this court in the review application, according to the learned counsel, there was no further scope for the petitioner to challenge the regulations of the University Grants Commission as well as the Ordinance issued in consonance thereto, as the same had already been adjudicated by the court. 10. 10. In view of the decision of this court reported in PLJR 1994 (2), 168 as well as the Supreme Court reported in AIR 1995 SC 336 , the regulation issued by the University Grants Commission from time to time cannot be said to be invalid and does not require any consideration. As the matter has already been adjudicated by a Division Bench, as such the same cannot be allowed to be the subject matter of another writ petition and the petitioner cannot be allowed to raise this point again and again. Applying the ratio as enunciated in the abovementioned case I have no option but to hold that as at the time of enforcement of the U.G.C. Act the Patna University Act as well as Bihar University Act were already in existence. 11. In paragraph 19 of the judgment reported in A.I.R. 1995 8C 336, special reliance has been placed, which reads as follows :- "The Delhi University Act was on 'the statute took when the U.G.C. Act was enacted by Parliament under Entry 66 of list 1. It must be assumed that Parliament was aware of the provisions of the Delhi University Act when it enacted the U.G,C, Act, particularly because the power to enact legislation concerning the Delhi University lay with Parliament under Entry 63 or List 1, The Delhi University and other University covered by, Entry 63 were consciously made subject to the regulation of the U.G.C. in so far as coordination and determination of standard were concerned, This was made explicit by the definition (University) in 8.2 (f) of the U,G.C. Act. To take any other view would be to make otiose, qua the Universities covered by Entry 63, not only the U.G.C. Act but Entry 66 itself. The argument that 8.2 (f) of the U.G.C. Act defining 'University' had to be read not with reference to the UG.C. Act as a whole but only with reference to such provisions of the U.G.C. Act as deal with funding must be rejected. If there were merit in the argument that Entry 66 operated only vis-a-vis institutions other than those mentioned in Entry 66, the U.G.C, Act in its entirety would not apply to the Delhi University and the Delhi University would, consequently, not be entitled to receive any grant thereunder. If there were merit in the argument that Entry 66 operated only vis-a-vis institutions other than those mentioned in Entry 66, the U.G.C, Act in its entirety would not apply to the Delhi University and the Delhi University would, consequently, not be entitled to receive any grant thereunder. It is for this reason to avail the grant but shed the obligation under the U.G.C. Act, that the argument has been so cautiously advanced. " While dismissing the appeal against the judgment of the Delhi High Court their Lordships modified the judgment of the Delhi High Court to the extent indicated below :" As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said Regulations; or it may seek prior approval for the relaxation of this requirement in a specific case; or it may appoint as lecturer one who does not meet this requirement without having first obtained the U.G.C.'s approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the U.G.C. forfeit its grant from the U.G.C. If, however, it did show cause to the satisfaction of the U.G.C., it not only would not forfeit its grant but the appointment• made without obtaining the U.G.C.'s. prior approval would stand regularised," 12. In view of the above mentioned decisions and the arguments advanced by the learned counsel appearing on behalf of the University Grants Commission, Respondent No.3, I. have no option but to hold that the University Grants Commission was within its jurisdiction in issuing guidelines for the appointment of lecturers in the University and Colleges of the State of Bihar and the Chancellor was also within his jurisdiction in promulgating the Ordinance in consequence thereto. The present case is squarely covered by the ratio laid down in the judgments reported in A.I.R. 1995, SC 336 as well as in a decision of this court reported in PLJR 1994 (2) 168 and the order passed in the review application, which is appended as Annexure-4/1 to the present writ application. 13. In the result, this writ application fails and the same is dismissed. However, in the facts of this case, parties shall bear their own cost.