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Rajasthan High Court · body

2002 DIGILAW 1632 (RAJ)

Fateh Kishan Kapil v. Jai Narayan Vyas Jodhpur

2002-09-20

B.PRASAD

body2002
JUDGMENT 1. 1. The petitioner in the present writ petition was appointed as Lecturer on temporary basis in the year 1970. He was confirmed after completion of probation on 27.12.1974. The petitioner was promoted as Reader (Associate Professor) from the post of Assistant Professor (Lecturer) on 14.10.1989 w.e.f. 8.9.1987. The petitioner was promoted to the post of Associate Professor in Career Advancement Scheme, the eligibility for which was provided under Ordinance 317 as framed then. The order of promotion of the petitioner has been produced as Annex.4. The petitioner's work was considered excellent and equivalent to Ph.D. The petitioner was appointed as Research Supervisor for guiding research scholars. Many students carried out their Ph.D. work under the petitioner. The petitioner has claimed that academic work done by the petitioner was not only considered equivalent to Ph.D. as back as in the year 1989 but he was conferred distinction as guide to supervise the candidates to undertake studies for their Ph.D. It is stated by the petitioner that it is unjust, unfair and unreasonable demand that the person under whose guidance students work for Ph.D. Thesis, he is not considered holding qualification equivalent to Ph.D. 2. The petitioner has averred that University Grants Commission (hereinafter referred to as 'UGC') has been constituted under the legislative power of the Union under Entry 66 of Schedule VII wherein it has been provided that in the matters of education, University will be guided by the Regulations framed by the UGC. The Hon'ble Supreme Court in a case decided in the matter of (1) Usmania University Teachers Association Vs. State of Andhra Pradesh ( AIR 1987 SC 2034 ) held that State has got no power to pass any act which are in the same terms as that of the University Grants Commission Act, 1956 (for short 'the Act of 1956') and thus area occupied by the Act of 1956 cannot be infringed by the Act of State. The petitioner has quoted Sec.26 of the Act of 1956. The relevant part of Sec.26 is quoted herein below: "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:- ...... ...... ...... The petitioner has quoted Sec.26 of the Act of 1956. The relevant part of Sec.26 is quoted herein below: "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:- ...... ...... ...... (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 instructions; (g) regulating the maintenance of standards and the coordination of work or facilities in Universities; 3. The petitioner claims that UGC framed regulations for the Career Advancement Scheme and also provided the qualification for that purpose which are binding upon the University and the directions of the UGC to the University with regard to qualification was framed by the name of UGC Regulations 2000 which has been published in gazette. It is claimed that it is mandatory requirement that University should follow the regulations framed by the Commission under Sec.26 of the UGC Act 1956 and point no.2 in Annexure enclosed with the regulation provided qualification for the Career Advancement Scheme for the post of Professor Point no.2.5.0 is reproduced as under : ""2.5.0 Professor (Promotion}-in addition to the sanctioned position of Professors, which must be filled in through direct recruitment through all India Advertisements, promotions may be made from the post of Reader to that of Professor after 8 years of service as Reader." 4. It is stated by the petitioner that Ph.D. is not required in terms of this qualification fixed by the UGC in this regulation but previously its equivalence was required. Thus, it is claimed by the petitioner that for promotion to the post of Reader, it is not necessary that he should have degree of Ph.D. but if he has equivalent published work, he may he considered equivalent to Ph.D. and in this way the petitioner was considered equivalent to Ph.D. as back as in the year 1989, As such, technically he may also be considered to be Ph.D. from equivalent point of view. However, the petitioner has claimed that as far as the promotions are concerned, point 2.5.0 clearly states that only experience of eight years' service is required for the post of Reader and there is no further requirement except as Reader for eight years. 5. However, the petitioner has claimed that as far as the promotions are concerned, point 2.5.0 clearly states that only experience of eight years' service is required for the post of Reader and there is no further requirement except as Reader for eight years. 5. The petitioner claims that he has got experience as Reader of about 12 years and as such he is eligible for promotion to the post of Professor which is only minimum requirement for the purpose of promotion, which according to the petitioner is also stated in Point 2.1.3 in the Regulations of 2000. The petitioner is entitled for promotion to the post of Professor as he has got experience of more than eight years and while being promoted as Reader, his work was considered equivalent to that of Ph.D. The petitioner has further placed reliance on proviso to Regulation 2 of the Regulations of 2000 wherein it is provided that these regulations shall not be applicable to such cases where selections of the candidates having had the then requisite minimum qualification as were existing at that time through duly constituted Selection Committees for making appointments to the teaching posts having been made prior to the enforcement of these regulations. 6. According to the petitioner, when the selections took place, if the candidate was having requisite minimum qualification, existing at that time, should be treated as sufficient. Since, petitioner was considered as Ph.D. at that time, now not considering him eligible because he is not Ph.D., but he is guide of Ph.D., is unfair. The petitioner has further claimed that while case for fixing up of qualification was being considered in the Academic Council, agenda provided that amendment should be in accordance with the Regulations of 2000. Meaning thereby that it was directed that after eight years' experience as Associate Professor (Reader) promotion may be made to the post of Professor. It is also claimed that alternatively, it was provided that if the number of years required for the feeder cadre are less than eight years then considering hardship to those who have completed more than eight years in the entire service was eligible in the cadre if 17 years have been completed will be considered. Agenda of the Academic Council has been produced as Annex.11. 7. In the amendment in Ordinance 317 for Professor's promotion, a note has been appended after the main item. Agenda of the Academic Council has been produced as Annex.11. 7. In the amendment in Ordinance 317 for Professor's promotion, a note has been appended after the main item. This note appears to have been provided to be made applicable to those persons who do not have requisite experience of eight years. Then, this note has been provided for removal of difficulties that their previous services as Sr. Lecturer or Lecturer may be added and therefore note has been appended for movement into the grade of Professor as an alternative qualification and it is not relevant for the persons who are having experience of Reader for eight years. A comparative statement of UGC Regulation, 2000, Agenda of the meeting of the Academic Council and proposed amendment has been produced as Annex. 13. According to the petitioner, 34 Members of Academic Council have represented against the incorporation of note out of 51 Members who attended the meeting. The representation has been filed as Annex. 14. 8. The petitioner has given name of certain persons who were called for interview on the post of Professor, including name of those who are junior to the petitioner. List also included those who had been students of petitioner. The petitioner is being ignored because he is not possessed of Ph.D. Degree. The petitioner has challenged that Ordinance 317 as amended by the University on 13.7.2001 is not in accordance with Sec.24 of the Jai Narain Vyas University Act, 1962 (for short 'the Act of 1962). An Ordinance can only be made operative after it is approved by the Senate and Chancellor. The Ordinance is being enforced without being submitted to the Senate. Therefore, the petitioner has challenged the very foundation on which according to the petitioner, selections have taken place i.e. newly framed Ordinance 317. 9. The petitioner has further submitted that if conditions of service are changed to the detriment of employee, the same should be published in Gazette. The notification having not been gazetted, cannot be used. The petitioner has further submitted that even if amendment in Ordinance 317 is taken to be good, Regulations 2000 only provide that a person should have only eight years service as Reader and therefore he had a right of consideration. The notification having not been gazetted, cannot be used. The petitioner has further submitted that even if amendment in Ordinance 317 is taken to be good, Regulations 2000 only provide that a person should have only eight years service as Reader and therefore he had a right of consideration. The qualification as provided for the Professor, direct recruitment, there is no requirement that he should be Ph.D. and therefore there is no rationale behind providing for a qualification for promotion of Professor. If at the time of selection of Reader, if qualification of petitioner was considered equivalent to that of Ph.D., the same cannot now be ignored while considering the case of petitioner for promotion on the post of Professor. The exercise of power by the respondent University is therefore violative of Article 14 and 16 of the Constitution of India. It is claimed that petitioner is senior to the persons who have been called for the interview and the University should be directed to implement that notification by virtue of which the petitioner was declared to be senior to those who have been called. Thus, the petitioner has prayed that a direction may be issued to the effect that the petitioner should be called for interview and be considered eligible for being interviewed on the post of Professor. 10. The respondent University has joined the issue and has contested the stand of the petitioner. It has been submitted that reliefs claimed by the petitioner that his work should be considered to be eligible for him to be called for interview is not in conformity with the Ordinance 317 and notification of UGC (Annex.1). According to the respondent University, the case of the petitioner has been raised on the foundation that though he was not Ph.D. when he was promoted to the post of Reader w.e.f. 8.7.1987, he was considered to hold qualification equivalent to Ph.D. According to the University, at that time, eligibility described was that the candidate should have obtained Ph.D. degree or equivalent published work. Since petitioner was selected and promoted as Reader because he was not Ph.D. does not make any difference as his work was considered equivalent to Ph.D. But now, that should be considered as Ph.D. for his promotion to the post of Professor would be stretching the matter too far. Since petitioner was selected and promoted as Reader because he was not Ph.D. does not make any difference as his work was considered equivalent to Ph.D. But now, that should be considered as Ph.D. for his promotion to the post of Professor would be stretching the matter too far. In Ordinance 317, a departure was made from the qualification as prescribed by Rule 4(b) of the erstwhile Ordinance 317. Earlier, alternative to Ph.D. Degree, equivalent work was prescribed. Now, equivalent published work has been deleted and minimum eligibility criteria has been fixed as Ph.D. This is a conscious departure made from the earlier provisions of Ordinance 317. After amendment, a provision cannot be presumed to be continuing. 11. As law stands today, equivalent published work cannot be considered to be a substitute for Ph.D. A publication carries name of the person may be result of effort of many, even it may be purchased. Ordinances 199 to 224 contain a provision in regard to grant of doctoral degree of Ph.D. It contains stringent provisions to ensure that the work is of the candidate undertaking research and the candidate's work is his original work and has indeed been done by him. In viva voce test, the experts assesses the acquaintance of the candidate with literature on the subject. Thus, the case of the respondent University that research work is much more comprehensive than the publication of research papers. 12. The University has further claimed that law relied upon by the petitioner related to the career advancement only u to the post of Reader and not Professor. The considerations for the post of Professor will be entirely different. By no stretch of imaginations, considerations relevant for the post of Reader can be read for the post of Professor. Thus, it is claimed by the University that relief of consideration of the petitioner cannot be granted. 13. According to the University, second relief claimed by the petitioner is regarding appending of note to amended Ordinance 317. It has been claimed that same may be declared ultra vires, the University submitted that Syndicate has been vested with the power of making an Ordinance. Ordinance takes effect on being approved by the Chancellor. 13. According to the University, second relief claimed by the petitioner is regarding appending of note to amended Ordinance 317. It has been claimed that same may be declared ultra vires, the University submitted that Syndicate has been vested with the power of making an Ordinance. Ordinance takes effect on being approved by the Chancellor. It is claimed by the University that powers of Senate have been defined in sub-section (3) of Sec.24 of the Act of 1962 regarding cancellation of an ordinance, but that does not mean that it requires approval of the Senate. The petitioner has further raised a plea that certain members of Academic Council protested regarding appending of the note laying down the requirement of doctoral degree for honoured promotion which was neither given in the original agenda, circulated nor in the supplementary agenda. 14. The University has submitted that matter of amendment in Ordinance 317 was not even required to go to the Academic Council. Sec.24 of the Act of 1962 provides a complete code for making of an Ordinance. Nothing much turns out on the resolution of the Academic Council. At best the Academic Council's resolution could be one of the factors for consideration before the Syndicate for making the Ordinance and no, more. It is claimed by the respondent University that taking a total view of Sec.24 of the Act of 1962, the Academic Council nowhere comes into picture in regard to Ordinance 317 prescribing eligibility conditions for appointment to teaching posts. It is claimed by the University that objections raised in relation to appended note have no merit at all. According to the respondent University, a perusal of Annex 10 goes to show that minimum qualification required for the post of Professor by promotion is Ph.D. The petitioner has totally misread the Regulations 2000. 15. The third prayer has been contended by the respondents to be preposterous. It has been submitted by the respondent that it is not open to the petitioner to contend that he should be considered eligible because he was not considered eligible on account of being possessed of equivalent published work while being promoted by way of Career Advancement Scheme, 1986 to the post of Reader. The pay scales of the teaching staff of the Universities were revised vide notification dated 12.5.1999 thereby an immense hike in the pay scales were given. The pay scales of the teaching staff of the Universities were revised vide notification dated 12.5.1999 thereby an immense hike in the pay scales were given. These hikes were subject to the provisions in respect of qualifications, mode of recruitment/appointment to different posts, grant of annual grade increment/ conditions of eligibility for Senior and Selection Scale of Lecturer etc. shall be amended w.e.f.1.1.19% as per guidelines contained in Government of India circular dated 27.1998 (sic .) and 6.11.1998. In the communications attached to the notification, the provisions regarding career advancement have been made and it has been laid down that for movement into grades of Reader and above, the minimum eligibility criterion would be Ph.D. and those teachers without Ph. D can go up to the level of Lecturer (Selection Grade) and not further. The petitioner cannot have the cake and eat it also and say that he has availed the immense hike in pay scales and claims that he should be considered Professorship without there being a Ph.D. degree to his credit. 16. A rejoinder has been filed by the petitioner. It is claimed by the petitioner that concept of Career Advancement Scheme is that one person who has got experience of particular year in a particular grade or cadre then he should be given the opportunity for advancement in career in the next higher post and in this case, this facet has not been denied by the replying respondent. No qualification has been prescribed but experience of eight years is the minimum requirement as Reader. Here, it is to be considered that if a person who is Supervisor for Ph.D. approved by the Statutory Body to the University itself, then it is neither just nor reasonable to say that a person under whose supervision Ph.D. has been granted to many persons, he should not be considered eligible because his work is not equivalent to Ph.D. For career advancement scheme, feeder cadre cannot be bifurcated on the basis of qualification. In the matter or Associate Professor (Reader) open selection, it has been provided that candidate may have good academic record of doctorate degree or equivalent published work. Thus, it is not proper to ask for Ph.D. in the case of petitioner. The petitioner claims that Ordinance clearly says that it is the experience of teaching any contributing to the knowledge. In the matter or Associate Professor (Reader) open selection, it has been provided that candidate may have good academic record of doctorate degree or equivalent published work. Thus, it is not proper to ask for Ph.D. in the case of petitioner. The petitioner claims that Ordinance clearly says that it is the experience of teaching any contributing to the knowledge. These are the essentials and Ph.D. is not mark of knowledge because it can be prepared by anybody. The experience of teaching is a sine qua non for the post of Professor but this aspect has been ignored by answering respondents while giving reply. According to the petitioner, the whole process of interview has been held without even advertising vacancy and without showing how many vacancies and without considering all these facets, the action of the University is arbitrary. The petitioner has claimed that University has consciously not chosen to say that person who has become Supervisor to those who are doing Ph.D how can he be considered less meritorious than who had acquired Ph.D. Degree under his supervision. Sec.24 of the Act of 1962 does not give arbitrary power to the Syndicate to frame an Ordinance because it is restricted by following restrictions: i. That the Draft should be there from the academic council ii. After being passed, it should be submitted to the Senate iii. If pertains to the expenditure or income of the University. 17. Thus, without following aforesaid conditions, no ordinance can be framed Whereas, present ordinance has been framed in violation to those conditions. No prior consent of the State Government has been obtained. The approval of the Chancellor cannot be given unless the Ordinance is approved by the Senate. In absence of approval of Senate, Ordinance cannot be considered to be properly framed. The stand of University that Academic Council was undermined by the respondent is incorrect. The Academic Council is the highest academic body of the University and therefore, a note being appended without its approval infringes its authority. 18. Reply has also been filed on behalf of the State Government wherein State Government has contended that prescription of qualification is always sole domain of the employer. The qualification has been prescribed by way of Ordinance which is in wisdom of the Legislature and cannot be questioned by an aspirant like the petitioner. 18. Reply has also been filed on behalf of the State Government wherein State Government has contended that prescription of qualification is always sole domain of the employer. The qualification has been prescribed by way of Ordinance which is in wisdom of the Legislature and cannot be questioned by an aspirant like the petitioner. The qualifications prescribed are just, reasonable and fair and also equitable. They are neither bad nor discriminatory. Preferring a brilliant candidate cannot be said to be irrational or violative of Article 14 and 16 of the Constitution of India. Since, petitioner does not possess requisite qualification, he does not have the right of consideration. He is not eligible and therefore he has got no right of consideration whatsoever. 19. It has further been claimed that promotion is not a condition of service. The only right of consideration is in accordance with existing criteria. Thus, in accordance with existing criteria, the petitioner was not eligible for being considered and therefore he was rightly not called for interview. There is no vested right to claim consideration for promotion under a particular scheme. The promotion is to be made in accordance with the existing law. It is submitted that in absence of there being any mandatory provision for determination of vacancies, if vacancies were not determined, the petitioner cannot claim promotion as a matter of right from retrospective date. The petitioner cannot be permitted to raise eyebrows regarding fixation of qualification. He has got no vested right to ask for mandamus to compel his employer to make appointment in his favour. 20. Heard learned counsel for the parties and perused the record 21. After hearing, the case was closed for preparing the judgment. While finalisation of the judgment was being considered, it was noticed that certain provisions of the judgment Universities Teachers and Officers (Selection for Appointment) Act, 1974 (hereinafter referred to as 'the Act of 1974') may have a bearing on the question in issue, therefore, a notice was given to the parties regarding implication of Section 1 and Sec.12 of the Act of 1974. The provisions which were observed by the Court in University publication before the notice was issued, were in the following terms: 11. Personal promotion against ex-cadre posts: (1) Notwithstanding anything contained in the relevant law or in this Act. The provisions which were observed by the Court in University publication before the notice was issued, were in the following terms: 11. Personal promotion against ex-cadre posts: (1) Notwithstanding anything contained in the relevant law or in this Act. the State Government may, in order to provide promotional opportunities to stagnant deserving teachers, create ex-cadre posts of Professors or Readers in each faculty of a University to the extent of one-third of eligible persons as on 1st January of each year. (2) A Lecturer or a Reader in a University shall be entitled to only one promotion under this section during his service in any of the Universities subject to his being eligible for such promotion under this section. (3) When ex-cadre posts are created by the State Government in a faculty of a University, the distribution of such posts within the various departments of the University in a particular faculty would be made by a committee consisting of the Vice-Chancellor, of the University concerned, Dean of the faculty concerned and the Education Secretary. (4) The ex-cadre posts of Professors created in a year shall be filled in by personal promotion on the basis of the merit alone from amongst Readers who : (a) have been regularly selected to the post of a Reader; (b) have, after regular selection, put in a continuation ten years service as Readers as on the 1st day of January of the year in which such promotion is to be considered; and (c) possess the qualifications laid down in the relevant law of the University concerned for appointment to the post of Professor; (5) The ex-cadre posts of Readers shall be filled in by personal promotion on the basis of seniority-cum-merit from amongst Lecturers who, (a) have been regularly selected on the post of Lecturer; (b) have, after regular selection, put in, on the 1st day of January of the year in which such personal promotion is to be considered, (c) continuous fifteen years' service as, Lecturer, or (d) continuous twelve years service as Lecturer subject to his possessing the qualifications as laid down in the relevant law of the University concerned for appointment to the post of a Reader. Explanation-For the purposes of seniority and counting of years of service as Reader or as Lecturer, under clause (b) respectively of sub-sections (4) (5), the service rendered as Lecturer or Vice-Principal or Principal after regular selection as Lecturer in a college established or run by the State Government or in a University as also the service rendered, in an ad hoc or temporary capacity immediately before regular selection shall also be taken into account. (6) For the purpose of consideration for personal promotion to any of the categories of ex-cadre posts referred to in sub-section (4) and sub-section (5), the Vice-Chancellor of the University concerned shall prepare separate eligibility lists of Lecturers & Readers who are eligible under this section to be considered for such promotion on ex-cadre posts of Professors or Readers allocated to a department of a faculty by the committee referred to in sub-section (3). ......" 12. Act to have overriding effect- (1) The provisions of this Act shall have effect notwithstanding anything contained in the relevant law. (2) So much of the relevant law as provides for the matters covered by this Act shall, as from the commencement of this Act, cease to have effect as respects those matters. 22. A reading of aforesaid Section 1(2) of the Act of 1974 gives a feeling that only one promotion was available. The petitioner has already availed one promotion and second promotion may not be available to him. In this regard, reply of the University and the State of Rajasthan were silent and therefore, the case was ordered to be listed under the head "To be mentioned". The case was listed on 11.9.2002. Counsel for the University produced an Amending Act being, Act No. 3 of 1998 published in Gazette on March 30, 1998, In terms of this amendment, Clauses (i-a) and (ii) (b) were deleted and Section 2(xi) was substituted so also Section 1. The case was listed on 11.9.2002. Counsel for the University produced an Amending Act being, Act No. 3 of 1998 published in Gazette on March 30, 1998, In terms of this amendment, Clauses (i-a) and (ii) (b) were deleted and Section 2(xi) was substituted so also Section 1. The amended provisions introduced reads thus : Amendment of section 2, Rajasthan Act No.18 of 1974:- In sub-section (1) of section 2 of the Rajasthan Universities' Teachers and Officers (Selection for Appointment) Act, 1974 (Act No.18 of 1974), hereinafter referred to as the principal Act, - ((a) the existing clauses (i-a) and (ii) (b) shall be deleted; and (b) for clause (xi), the following clause shall be substituted namely:- "(xi) "University concerned" means the University in which vacancy in the post of a teacher or an Officer is to be filled up under and in accordance with the provisions of this Act, and" 3. Substitution of section 11, Rajasthan Act No.18 of 1974 - For the existing section 11 of the principal Act, the following shall be substituted, namely:- "11. Transitional Provisions relating to ex-cadre promotion Scheme Personal promotion granted against ex-cadre posts under the erstwhile scheme of personal promotion, shall be entirely personal to the teacher concerned and the ex-cadre post to which such personal promotion was granted shall cease to exist as soon as the teacher promoted to such a post ceases to hold that post permanently for any reason whatsoever, and on his ceasing to hold such ex-cadre post, the original post from which such personal promotion was made of a teacher shall revive." 23. The implication of these amended provisions was studied, The parties were asked also about the implication of the amendment. Parties stated that they have understood the implication of the amendment. It was also submitted that nothing in addition to which has already been submitted, is required to be submitted. 24. The amendment has to be seen in the light of other provisions of the Act of 1974. The Act in its preamble note: "An Act to provide for (Selection for appointment) of teachers and officers of the Universities in Rajasthan and for matters connected there-with." 25. Thus, this is an Act which was enacted for the selection and appointment of Teachers and Officers in the University. It provides for connected matters also. The Act in its preamble note: "An Act to provide for (Selection for appointment) of teachers and officers of the Universities in Rajasthan and for matters connected there-with." 25. Thus, this is an Act which was enacted for the selection and appointment of Teachers and Officers in the University. It provides for connected matters also. It cannot be said that this covers the entire field of incidence of appointment. 26. In Section 2, definition section, a changed provision was substituted in place of existing clause (xi). In substituted provision, reference to promotion was removed. It was provided that any vacancy on a post was to be filled up under and in accordance with the provisions of the Act i.e. the Act of 1974. 27. Section 3 has an explanation appended to it saying that appointment mentioned in sub-section (1) of Sec.3 shall only mean initial appointment and not appointment by promotion. If the impact of this explanation is seen, then this explanation had a limited scope regarding promotion. It said promotions are not required to be made on the recommendations of the Selection Committee. Thus, this explanation has no bearing as far as controversy of the case is concerned. Here, Selection Committee is already made operative. 28. Sec.11 having been amended and substituted by a new provision, which has been quoted herein above, provision for any promotional avenue is obviated. The scheme of the Act suggests that this is only legislation available as primary legislation of State of Rajasthan wherein provisions have been made for appointment of Teacher in an University. In the scheme of the Act, no promotional avenue has been defined, created, or provided. Section 2 has been designed to give an overriding effect. Sub-section (1) of Sec.12 says that provision of this Act will have effect notwithstanding anything contained in the relevant law. In sub-section (2) of Sec.12, it has been stated that so much of the relevant law, as provides for the matters covered by this Act, i.e. Act of 1974, will have no effect in respect of those matters. 29. The relevant law has been defined in sub-section (vi) of Sec.2 which says: "relevant law" means an enactment of the Rajasthan State Legislature establishing a University in Rajasthan, and it includes the statutes, ordinances, bye-laws, rules, notifications or orders made thereunder and as amended from time to time." 30. 29. The relevant law has been defined in sub-section (vi) of Sec.2 which says: "relevant law" means an enactment of the Rajasthan State Legislature establishing a University in Rajasthan, and it includes the statutes, ordinances, bye-laws, rules, notifications or orders made thereunder and as amended from time to time." 30. An analysis of these Sections shows that this Act has been enacted by the Rajasthan State Assembly to provide for selection for appointment of teachers. While providing for selection of appointment of teachers, as the Act stands today, there is no providence for promotion. There is no promotional avenue provided and by Section 12, the Act has been given overriding effect. The overriding provision has been emphasised by prefixing a non-obstante clause in sub-section (1). By providing eclipse in sub-section (2) supremacy.of this Act has been sought to be established with greater emphasis. It has been stated that so much of the relevant law would cease to have effect in respect of the matters for selection of teachers. Thus, any provision in the jai Narain Vyas University Act, 1962 and other relevant law including statutes, ordinances, bye-laws, rules, notifications or orders made thereunder and as amended from time to time will have no effect in the matters of selection for appointment. 31. The scheme of the Act provides no promotion. In the present case, the petitioner has claimed that he has availed one promotion and the respondent University having amended Ordinance 317, has created a situation whereby the petitioner has been debarred from claiming another promotion. Thus, the petitioner has prayed for being considered in the Selection Committee for appointment as Professor, According to the petitioner the Committee is considering the case for promotion to the post of Professor (Promotion) under clause 2.5.0 of Regulations, 2000 framed by the University Grants Commission. It is said that UGC has framed regulations under Sec26(e) and (g) of the Act of 1956. For ready reference, Sec.26(e) and (g) of the Act of 1956 have already been quoted herein above. Clauses (e) and (g) of Sec.26 of the Act of 1956 give powers to UGC for promulgating regulations whereby it can prescribe qualifications for the persons to be appointed to teaching staff of the University and regulate maintenance of the standards. These two clauses no-where speak that UGC has power to provide for a cadre or create a post for teachers in the University. These two clauses no-where speak that UGC has power to provide for a cadre or create a post for teachers in the University. 32. Statute 17 of the Statutes of University provides for class of teachers in the University. There is no reference to any teacher as Professor (Promotion) or Reader (Promotion). Sub-section (ix) of Sec.2 of the Act of 1974 also makes no mention of any teachers with designation Professor (Promotion), Reader (Promotion). 33. Statute 17 and sub-section (ix) of Sec.2 of the Act of 1974 are quoted herein below for ready reference: 17.(1) Members of the teaching staff in the University shall consist of the following categories: (a) servants of the University paid by the University and appointed by the Syndicate as Professors, Readers or Lecturers or otherwise as teachers of the University, or (b) persons appointed by the Syndicate as honorary Professors, Readers or Lecturers or otherwise as teachers of the University (2) Recognised teachers shall be members of the teaching staff of colleges or institutions." 2(ix) of the Act of 1974: ""Teacher" means a Professor, Reader or a Lecturer of any faculty of a University and such other person, by whatever name designated by or under the relevant law, imparting instruction, (or conducting and guiding research or extension programmes in a University:) 34. Neither Statute 17 quoted herein above speak of any promotion nor the Act of 1974 as it stands today speak of any kind of promotion or promotional post. The petitioner is seeking direction from this Court that a direction should be issued to the respondents to permit the petitioner to compete for selection on the post of Professor (Promotion). A journey through relevant provision of law taken hereinabove show that no promotional avenues are provided in the Act of 1974. Sec.26 (e) and (g) of the Act of 1956 does not authorise the UGC to provide for any kind of cadre in the University or create posts. The Statute 17 of the Statutes of University defines classes of teachers which can exist in the University and post of Professor (Promotion) or Reader (Promotion) is not provided in the Statute. Such lass has also not been mentioned in Sec.2(ix) of the Act of 1974. Thus, it is clearly seen that post of Professor (Promotion) has neither been provided in the Statute nor it is provided in the Act of 1974. Such lass has also not been mentioned in Sec.2(ix) of the Act of 1974. Thus, it is clearly seen that post of Professor (Promotion) has neither been provided in the Statute nor it is provided in the Act of 1974. Any reference made in Ordinance 317 is inoperative because of the operation of Section 2 of the Act of 1974. 35. No ex-cadre post exists today. No such post can be created because the enabling provision for the creation of such post i.e. Sec.2(i) and 2(ii) (b) has already been deleted. It has been provided in sub-section (xi) of Section 2 that any vacancy in the post of a teacher is to be filled up under and in accordance with the provisions of this Act. Since, the Act does not provide for any post with the nomenclature Professor (Promotion), there are no promotional avenues defined in this Act. 36. The existence of ex-cadre which was earlier provided has been done away with by conscious omission. Thus, there being a deliberate departure from the provided promotion from the Act which has been created by the State of Rajasthan being Act No.18 of 1974, an Act to provide for selection for appointment of teachers, no promotional avenue is available with regard to the onward uplift of teachers in different cadres. UGC in its scheme framed under Sec.26(e) & (g) can only provide for the areas for which it has power. The Regulation cannot travel beyond the powers conferred on the UGC under Sec.26(e) and (g). Regulations 2000 also not speak that these in any way have the sanction of the central Government. 37. The short title of the Regulations speaks that these provide for qualification required for appointment and career advancement. Thus, primarily these regulations provide for qualification for two contingencies. (1) Appointment and (2) career advancement: For appointment, there is an Act provided by the State that is the Act of 1974. As law stands today, no statute is existing in State for career advancement. The only law relied is the Regulations of 2000. This provision can be read only for providing qualification. It is issued under the authority of Sec.26(e)and (g) of the Act of 1956. These provisions do not authorise UGC to frame any instrument regulating appointment. Para 2 provides for qualification. Provided qualification has been made to be enforced by the language used. This provision can be read only for providing qualification. It is issued under the authority of Sec.26(e)and (g) of the Act of 1956. These provisions do not authorise UGC to frame any instrument regulating appointment. Para 2 provides for qualification. Provided qualification has been made to be enforced by the language used. There is no mention of anything like career advancement in para 2 and 3, and rightly so. University Grants Commission while exercising powers under Sec.26 (e) and (g) of the Act of 1956 will only provide for qualification and not something which is not in its domain. 38. It may be worthwhile to note that a notification dated 12.5.1999 was issued by the State of Rajasthan bearing No.E.3(8) Edu.4/98. This notification provides that suitable amendments will be made as per guidance of Central Government. Relevant provision, para 3 of the notification is quoted thus: "Notwithstanding anything contained in this order, the revised pay scale (UGC) shall be subject to the conditions that provisions in respect of qualifications, mode of recruitment/appointment to different posts, grant of annual grade increment/conditions of eligibility for Senior and Selection Scale of Lecturer etc. shall be amended with effect from 1.1.1996 as per guidelines contained in Govt. of India, Ministry of Human Resources Development, Department of Education, New Delhi letter No.F.I.22/97-U.T., dated 27.7.98 and 6.11.98 as amended from time to time, by Govt. or India or as prescribed by the State Government." 39. Any intended amendment in the Act of 1974 is not shown by the Government to exist. On the contrary, stand of the State Government is that bereft the Act of 1974, the promotions can be made. This cannot be considered to be a correct appreciation of law in view of Sec.12 of the Act of 1974. A reference in this regard may be made to the observations in CRAIES ON STATUTE LAW, Sixth Edition by S.G.G. Edgar thus: "Statutory enactments, although expressed in affirmative language, are some times treated as having a negative implied, and that their provisions, "though" as Lord O' Hagan said in R. v. All Saints, Wigan , "affirmative in words, are not necessary so, if they are absolute, explicit, and peremptory." In Viner's Abr. The following rule is laid down: "Every statute limiting anything to be in one form, although it be spoke in the affirmative, yet includes in itself a negative"; and in Bacon's Abr. The following rule is laid down: "Every statute limiting anything to be in one form, although it be spoke in the affirmative, yet includes in itself a negative"; and in Bacon's Abr. the rule given is that "if an affirmative statute which is introductive of a new law direct a thing to be done in a certain way, that thing shall not, even if there be no negative words. be done in any other way." 40. It may also be noted that in the notification referred to in the preceding para, State has observed in Clause (XV) of Para 2 as under: "Merit Promotion Scheme for Professor, and Reader-There is no Merit Promotion Scheme in Universities of the State." 41. Thus, it can safely be said that the Regulations 2000 provide for qualification for various posts including in career advancement, if there is one. In State of Rajasthan, no career advancement scheme has been incorporated in the Act of 1974. No independent Act has been enacted. In the field of appointments, Act of 1974 is occupying the field. Executive instruction cannot disturb that position. Thus, unless a suitable amendment is made in the Act of 1974, no appointments are possible in the name of career advancement. It may be useful to mention here that incidence of promotion is also an appointment. 41. The case of promoted teachers dehors the rules was considered by the Hon'ble Supreme Court in the case of (2) Dr. Rashmi Srivastava Vs. Vikram University and others ( AIR 1995 SC 1694 ) and it was observed by the Hon'ble Supreme Court that mere adoption of a scheme would not by itself create a new source of recruitment for promotee Readers and Professors unless Sec.49 of the M.P. Vishwavidyalaya Adhiniyam was suitably amended. For ready reference, relevant para is quoted thus: "State 16 is also of no avail to the promotees for the simple reason that statute 16 deals with seniority of teachers of the University. This Statute is promulgated under Section 35(o), of the Act, Section 35(o) deals with the mode of determines seniority for the purpose of the Act. Consequently, it will have to be read with Section 49, meaning thereby when a Professor, Reader or Lecturer is recruited under Section 49, how his seniority is to be determined can be decided in the light of the relevant statute framed under Sec.35(o). Consequently, it will have to be read with Section 49, meaning thereby when a Professor, Reader or Lecturer is recruited under Section 49, how his seniority is to be determined can be decided in the light of the relevant statute framed under Sec.35(o). As merit promotee Reader or Professor is outside the cadre there is no question of statute 16(2) operating in his case. It is also pertinent to note that merit promotee Professors or Readers form a separate distinct class as compared to directly recruited Professors or Readers. It is true that same Selection Committee which directly recruits Professors and Readers under Section 49(2), deals with the question of granting merit promotions to the concerned Lecturers as Readers and Readers as Professors. But that would not by itself create a new source of recruitment for promotee Readers and Professors unless Section 49 was suitably amended." 42. Here in the case in hand, there is an additional fact. Overriding effect of Section 2 of the Act of 1974, By this, any other source of appointment has been negated by the Act of 1974, Every recruitment in the Universities has to be governed by the Act of 1974. Apart from the sources provided in the Act of 1974, any kind of appointment is not permissible, Thus, the promotional exercise adopted by the University is dehors the law. Reference in this connection may be made to CRATES ON STATUTE LAW (supra) wherein it has been observed thus: "And if a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope." 43. Another contingency which can be noticed with reference to Dr.Rashmi Srivastava's case (supra) is that the Hon'ble Supreme Court has considered such career advancement promotions to be an ex-cadre situation. Such promotions cannot be conceived in the present set of things, as reference to ex-cadre was present in the Act of 1974 which was consciously obviated. Another significant factor is that similar kind of personal promotion scheme was earlier implemented only after incorporating into the Act of 1974 in Section 1. Such promotions cannot be conceived in the present set of things, as reference to ex-cadre was present in the Act of 1974 which was consciously obviated. Another significant factor is that similar kind of personal promotion scheme was earlier implemented only after incorporating into the Act of 1974 in Section 1. Thus, it is clear that State has the understanding that any scheme providing for appointment can only be implemented if that is incorporated in the Act of 1974. As such career advancement having not been incorporated in the Act of 1974 is not enforceable. The appointments undertaken by the University are not only against the mandate of Section 2 of the Act of 1974 but are against the past practice followed by the State of Rajasthan. 44. Counsel for the State has submitted that Career Advancement Scheme as framed by UGC operates bereft of an of vacancy. This stand of the State Government is per se in infringement of settled position of law. All the relevant law concerning appointment in University stand eclipsed by the overriding effect of Sec.12 of the Act of 1974 including Statutes and Ordinances etc. 45. Regulation, 2000 can be enforced by the strength of Section 4 of the Act of 1956. But then it has to confirm to the powers vested in the UGC. There is no power seen in clauses (e) and (g) of Sec.26 of the Act of 1956 which authorizes the UGC to provide for any promotional avenue or create a cadre in an University. That being the position, the act of the respondent in holding selection for appointment cannot be considered to be a legal exercise. 46. In the aforesaid circumstances, there is no legal right in the petitioner which can be enforced. Thus, no mandamus can be issued in favour of the petitioner for participating in an illegal activity. The petitioner has no legal right vested in him to ask for issuance of a writ of mandamus in his favour. The Court cannot issue direction to any statutory authority to do something in violation of statutory provisions. In Karnataka State Corporation Vs. Thus, no mandamus can be issued in favour of the petitioner for participating in an illegal activity. The petitioner has no legal right vested in him to ask for issuance of a writ of mandamus in his favour. The Court cannot issue direction to any statutory authority to do something in violation of statutory provisions. In Karnataka State Corporation Vs. Ashrafulla Khan and others (JT 2002(1)SC 113) , the Hon'ble Supreme Court has observed as under: "The High Court under Article 226 of the Constitution is required to enforce the rule of law and not pass an order or direction which is contrary to what has been injuncted by law." 47. In view of the aforesaid, it is not necessary to go into the other questions raised by the petitioner which will be decided in other writ petitions pending adjudication. 48. In the result, there is no force in the writ petition and as such the same is dismissed.Petition dismissed. *******