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Punjab High Court · body

2006 DIGILAW 2449 (PNJ)

Shamsher Singh Tayagi v. State Of Haryana

2006-07-04

P.S.PATWALIA

body2006
Judgment P. S. PATWALIA, J. 1. Petitioner Dr. Shamsher Singh Tayagi has filed the present writ petition aggrieved against the memo dated 20.2.1987 issued by the Kurukshetra university, Kurukshetra (hereinafter to be referred as, `the University) vide which approval for his appointment as a College Lecturer has been declined. The facts leading to the filing of this writ petition are as hereunder:- Petitioner has passed his Matriculation with 39% marks. Thereafter he passed his Bachelor of Arts examination with 44.5% marks. He then passed his masters in Arts examination with 50% marks. He thereafter acquired the qualification of Ph. D. in the year 1986. 2 Petitioner was appointed as a part-time Lecturer in Mukand Lal national College, Yamunanagar (hereinafter to be referred as, `the College) on 11.8.1983. He continued teaching on part-time/temporary basis. He claims that an interview was held on 17.11.1986 for appointment to the post of Lecturer in the college. The petitioner also appeared before the duly constituted selection committee and was placed at serial No.1 in the panel of three teachers. His case was sent to the University for approval of his appointment. However, the university vide its memo dated 20.2.1987, attached as Annexure P-1 with the writ petition, declined the approval. The petitioner claims to have made representations thereafter. Not having succeeded in getting any relief from the University he has approached this Court by way of the present writ petition seeking the quashing of order declining approval to his appointment with a further prayer for the issuance of a direction to the University to approve his appointment as a Lecturer in the college. 3. The claim set up by the petitioner in the writ petition is that the university Grants Commission, New Delhi (hereinafter to be referred as, `the ugc) has prescribed qualifications for appointment as College Lecturer in the bulletin of Higher Education issued by it. The petitioner states that he fulfills these qualifications. Though the qualifications are reproduced in para 9, however, at the time of hearing Mr. The petitioner states that he fulfills these qualifications. Though the qualifications are reproduced in para 9, however, at the time of hearing Mr. S. P. Jain, learned Senior Counsel appearing for the petitioner produced and relied upon a notification dated 13.6.1983 issued under section 26 (1) (e) read with Sec.14 of the University Grants Commission Act, 1956 (hereinafter to be referred as, `the Act) titled as "the University Grants commission (Qualifications required of a person to be appointed to the teaching staff of a university or other institutions affiliated to it) Regulations, 1982" (hereinafter to be referred as, `the Regulations ). As per Regulation 2, it is stated that no person shall be appointed to a teaching post in a University or in any of the institutions including constituent or affiliated colleges recognized under clause (f)of Sec.2 of the Act if he does not fulfill the requirement as to qualifications for the appropriate subject as provided in Schedule I to X of these Regulations. Schedule II deals with the qualifications prescribed for appointment to the post of college Lecturer. Its heading is important and is as hereunder:- "minimum qualifications prescribed for appointment to the post of lecturers. " 4 A reading of the aforesaid extract would show that the Schedule provides the minimum qualifications for appointment as College Lecturer. The same are as hereunder:- "college LECTURERS:- (a) An M. Phil decree or a recognized degree beyond the masters level or published work indicating the capacity of a candidate for independent research work; and (b) Good academic record with at least second class (C) in the seven point scale) Masters decree in a relevant subject from an Indian University or equivalent decree from a foreign university. Provided that if the Selection Committee if of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in (b) above. Provided that if the Selection Committee if of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in (b) above. Provided further that if a candidate possessing the qualifications as at (a) above is not available or not considered suitable, the college on the recommendation of the Selection committee may appoint a person possessing a good academic record on the condition that he will have to obtain an M. Phil, degree or a recognized degree beyond the Masters level within eight years of his appointment failing which he will not be able to earn future increments till he obtains that degree or given evidence of equivalent published work of high standard. EXPLANATION: for determining "good academic record" the finding criteria shall be adopted. COLLEGE LECTURERS: i) A candidate holding an M. Phil degree or a recognized degree beyond the Masters level should possess at least a second class Masters degree; or ii) A candidate not holding an M. Phil degree or a recognized degree beyond the Masters level should possess a high second class Masters degree and a second class in first degree (B. A. /b. Sc. /b. Com.) examination; or iii) A candidate not holding an M. Phil or a recognized degree beyond a Masters level, but possessing a second class masters degree should have obtained a first class in the first degree (BA/b. Sc. /b. Com.) examination. " 5. The petitioner states that though he fulfills the aforementioned qualifications yet approval has been declined. He has placed on record qualifications prescribed by the State of Haryana in the Haryana Education (College Cadre) Group B Service Rules, 1986 and has claimed the quashing of these qualifications as being contrary to the qualifications prescribed by the UGC. The University has filed the reply opposing the petition. It is stated that the University is well within its rights to scrutinize the recommendations of the Selection Committee and to approve or disapprove the same in terms of ordinances of the University. The University has filed the reply opposing the petition. It is stated that the University is well within its rights to scrutinize the recommendations of the Selection Committee and to approve or disapprove the same in terms of ordinances of the University. On merits it is stated that when the recommendations of the Selection Committee were examined, it was found that the petitioner was ineligible in terms of the qualifications prescribed for the post of college Lecturers in affiliated Colleges which were prescribed by the Executive council of the University. The relevant extract of the written statement to this effect is as hereunder:- "when the recommendation of the Selection Committee was examined it was found that the petitioner was in-eligible as he did not fulfill the minimum prescribed qualifications being 3rd class in matric and B. A. and just 50% marks in M. A. and Ph. D. His percentage of marks is given as under:- Matric : 39% b. A. : 44.5% m. A. : 50% ph. D : the petitioner was required to have 2nd class in one of the examinations prior to M. A. from Matric to B. A. Since the petitioner had obtained 3rd class in Matric as well as B. A. he was asked to supply certificate of B. A. Part-I which is taken as equivalent to F. A. for Higher Secondary class. The petitioner failed to supply the certificate, presumably because he has obtained 3rd class even in this examination. Consequently, the petitioner was found ineligible for appointment as lecturer on the basis of his qualifications. A copy of the qualifications prescribed by the University is at Annexure `r-I. " 6 The qualifications relied upon by the University being approved qualifications are as hereunder:- QUALIFICATIONS FOR THE POST OF LECTURERS IN THE recognised ARTS, SCIENCE AND COMMERCE colleges (i) A consistently good academic record with First or High second Class (55% marks or grade B in the seven point scale) Masters degree in the relevant subject of an Indian university or an equivalent degree of a foreign University (relaxable in the case of a University appointed teacher, or a university approved teacher in any capacity, of a recognized college appointed before 27.1.1976); and (ii) An M. Phil. Degree : Desirable. Provided that- (a) In the case of those candidates who have obtained more than 55% marks at the M. A. /m. Sc. /m. Com. Degree : Desirable. Provided that- (a) In the case of those candidates who have obtained more than 55% marks at the M. A. /m. Sc. /m. Com. level and who also possess at Ph. D. Degree, the criterion of consistently good record will not apply to all. (b) In case of candidates who have obtained 50% marks in m. A. /m. Sc. /m. Com. and also possess Ph. D degree and candidates who have obtained 55% marks in m. A. /m. Sc. /m. Com. and also possess M. Phil. Degree, the requirement of 50% marks will apply to only one of the lower examinations. (c) In case of candidates who have obtained a first class first in M. A. /m. Sc. /m. Com. the requirement of obtaining 50% marks will apply in the case of any one of the lower examinations. (d) The fraction of marks of 0.5% or above would be raised to next higher whole number i. e.54.5% to 54.9% would be raised to 55% marks. Similarly in the case of examinations prior to M. A. /m. Sc. /m. Com. the fraction of marks of 0.5% or above would be raised to next higher number i. e.49.5% to 49.9% prior to m. A. /m. Sc. /m. Com. (iii) Adequate knowledge in Hindi. Explanation: Candidates for being eligible for recruitment to the posts of teachers must have a Ist or high second class (55% marks or grade B in the Seven point scale) at the Masters level and for determining consistently good academic record a candidate should either have an average of 55% of the two examinations prior to Masters degree (irrespective of marks obtained in any of the two examinations) or 50% in each of the two examinations separately. " 7. It is therefore the case of the University that since the petitioner does not fulfill the qualification for appointment to the post of the College Lecturer as prescribed by the competent authority of the University, his case for approval has been rightly declined. I have heard Mr. S. P. Jain, learned senior counsel appearing for the petitioner, Mr. Suresh Monga, Senior Deputy Advocate General, Haryana for the state Government and Mr. S. C. Sibal, learned senior counsel appearing for the university and also perused the paperbook. 8. I have heard Mr. S. P. Jain, learned senior counsel appearing for the petitioner, Mr. Suresh Monga, Senior Deputy Advocate General, Haryana for the state Government and Mr. S. C. Sibal, learned senior counsel appearing for the university and also perused the paperbook. 8. In the present case it is apparent that the petitioner fulfills the qualifications for appointment as a College Lecturer which are prescribed in the regulations of the UGC. The requirement there is of an M. Phil. degree or a recognized degree beyond the Masters level and good academic record with at least second class Masters degree in the relevant subject. Good academic record has been defined. For a candidate holding an M. Phil. degree or recognised degree beyond the Masters level, he should have at least a second class Masters degree. Since the petitioner has a Ph. D. degree which is a recognised degree recognised beyond the Masters level and also possesses a second class Masters degree, he thus fulfills the requirements as prescribed by the UGC. 9. However, in so far as the qualifications prescribed by the University are concerned, the first requirement of eligibility is that a candidate should have a recognised degree beyond the Masters level with 50% marks at the Masters level. The petitioner fulfills this requirement. However, for defining good record while the UGC requires only 50% marks at the Masters level, the University has prescribed a higher requirement. As per the explanation to the qualifications prescribed by the University, a candidate should have either an average of 55% marks in two examinations prior to the Masters degree or 50% in each of the two examinations separately. Thus, while the UGC makes a candidate eligible merely having 50% marks at Masters level, the University while requiring a candidate to have at least 50% marks at the Masters level in the first part of the qualifications, further requires a candidate to have an average of at least 55% in two examinations prior to Masters or 50% in each of the two examinations separately. It is this further requirement which the petitioner lacks. Prior to his Masters degree he has a Bachelor of Arts degree with 44.5% marks and has passed Matriculation with 39% marks. Thus neither does he make an average of 55% in these two examinations nor does he have 50% in each of these examinations separately. It is this further requirement which the petitioner lacks. Prior to his Masters degree he has a Bachelor of Arts degree with 44.5% marks and has passed Matriculation with 39% marks. Thus neither does he make an average of 55% in these two examinations nor does he have 50% in each of these examinations separately. It is on this basis that approval has been declined by the University. The University has therefore prescribed a higher qualification than that required by the UGC regulations and has declined approval on the basis of those qualifications. 10. The question thus arises as to whether the University can prescribe a higher qualification than that prescribed by the UGC. Mr. Jain relying upon the judgment of the Supreme Court in University of Delhi V/s. Raj Singh and others, air 1995 SC 336 and on a Division Bench judgment of this Court in Neeraja malik V/s. State of Haryana, 1996 (4) SCT 112 argued that the qualifications prescribed by the UGC are mandatory and binding on the University. The university is bound to adopt the same and there can be no change in those qualifications by the University. Mr. Sibal, however, urged that once the qualifications prescribed by the University satisfies the minimum standard required by the UGC, it is always open to the University to prescribe a higher qualification so as to get better qualified people to man the post of College Lecturer. Mr. Sibal further argued that in any case this Court will not examine this issue in the present writ petition for the reason that there is no challenge by the petitioner to the qualifications prescribed by the University and there is no prayer to set aside the same as being in derogation to the qualifications prescribed by the UGC. The petitioner has prayed for setting aside of the qualifications prescribed by the education Department of the State of Haryana which are totally irrelevant for the appointments to be made in the University or its affiliated colleges. On a consideration of the pleadings, I find that it is correct that the petitioner has not raised any challenge to the qualifications prescribed by the university. There is no prayer in the petition that these qualifications should be set aside being in derogation to the qualifications prescribed by the UGC. On a consideration of the pleadings, I find that it is correct that the petitioner has not raised any challenge to the qualifications prescribed by the university. There is no prayer in the petition that these qualifications should be set aside being in derogation to the qualifications prescribed by the UGC. The petitioner has prayed for the setting aside of the qualifications prescribed by the haryana Government which to my mind are not at all relevant for the present controversy. Since appointment is to be made in the College affiliated to the university in terms of the qualifications prescribed by the competent academic body of the University, it is those qualifications which are relevant. Therefore, I find merit in the argument raised by Mr. Sibal that no relief can possibly be given to the petitioner since there is no challenge to the qualifications prescribed by the university. However, notwithstanding this conclusion and for the reason that this petition has remained pending in this Court for the last almost two decades, I would not non suit the petitioner on this ground but proceed to examine the arguments raised by the learned counsel on merits as well. 11. A reading of the very title of Schedule II of the Regulations framed by the UGC shows that it is "minimum qualifications" (emphasis supplied)which have been prescribed for appointment to the post of College Lecturer. The regulations itself show that these are the minimum prescribed qualifications. Thus if the UGC itself has prescribed the qualifications stating them to be the minimum qualifications, the Universities while adopting the same are entitled to prescribe a realistic attainable higher qualification. In the present case, the university has adopted the minimum qualifications prescribed by the UGC. All that it further wants is that in addition to 50% marks at the Masters level prescribed by the UGC, a candidate should have an average of 55% marks in the lower examination on 50% each in the two lower examinations. Since what the ugc has prescribed was the minimum qualification, the University was well within its right to prescribe an additional qualification while maintaining the minimum prescribed by the UGC. A somewhat similar situation arose before the supreme Court in the case reported as State of T. N. and another V/s. S. V. Bratheep (Minors) and others, (2004)4 SCC 513. Since what the ugc has prescribed was the minimum qualification, the University was well within its right to prescribe an additional qualification while maintaining the minimum prescribed by the UGC. A somewhat similar situation arose before the supreme Court in the case reported as State of T. N. and another V/s. S. V. Bratheep (Minors) and others, (2004)4 SCC 513. Therein the State government had prescribed a higher norm above the minimum prescribed by the aicte for admission to Engineering Colleges. The question whether the State government could prescribe a higher norm than one prescribed by the AICTE was examined by the HON BLE Supreme Court. The question is posed in para 5 which is as hereunder:- "we shall now examine only the question posed before us as to whether the norms prescribed by the State Government are contradictory to the norms fixed by AICTE or are only in the nature of higher qualifications above the minimum prescribed by AICTE for admission to the engineering colleges. 12 In paras 9 and 13 ultimately it is concluded by the Court as under:- 9]. Entry 25 of list III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State government is in any way adverse to, or lower than, the standards fixed by AICTE. If higher minimum is prescribed by the State Government than what had been prescribed by AICTE, can it be said that it is in any manner adverse to the standards fixed by AICTE or reduces the standard fixed by it? In our opinion, it does not. If higher minimum is prescribed by the State Government than what had been prescribed by AICTE, can it be said that it is in any manner adverse to the standards fixed by AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by AICTE would allow admission only on the basis of the marks obtained in the qualifying examination, the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this court in dr. Preeti Srivastava case. It is no doubt true, as noticed by this court in Adhiyaman case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not a very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by a series of decisions of this court including Dr. Preeti Srivastava case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.13]. Excellence in higher education is always insisted upon by a series of decisions of this court including Dr. Preeti Srivastava case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.13]. In this view of the matter, we think these appeals deserve to be allowed in part and the order of the High Court stands modified to the extent of stating that it is permissible for the State Government to prescribe higher qualifications for purposes of admission to the engineering colleges than what had been prescribed by AICTE and what has been prescribed by the State and considered by us is not contrary to the same but is only complementary or supplementary to it. " 13 A reading of the observations reproduced hereinabove would show that on examination of Entry 25 of List III and Entry 66 of List I, the Court has concluded that the State Government can prescribe higher qualification than that prescribed by the Central body acting under Entry 66 of List I. In Brahmo Samaj Education society and others V/s. State of W. B. And others, (2004)6 SCC 224 again the HON BLE Supreme Court has observed that under the Regulations framed by the ugc, the basic qualifications are prescribed for appointment as a teacher and amongst qualified candidates, an institution can chose the best possible available. The relevant observations are as hereunder:- "the State can very well provide the basic qualification for teachers. Under the University Grants commission Act,1956, the university Grants Commission (UGC) had laid down qualifications to a teaching post in a university by passing Regulations. As per these Regulations UGC conducts National Eligibility Test (NET) for determining teaching eligibility of candidates. UGC has also authorised accredited states to conduct State-Level Eligibility Test (SLET ). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification for a teacher. The petitioners right to administer includes the right to appoint teachers of their choice among the NET-/slet- qualified candidates. " 14. Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification for a teacher. The petitioners right to administer includes the right to appoint teachers of their choice among the NET-/slet- qualified candidates. " 14. A reading of the observations of the HON BLE Supreme Court reproduced hereinabove would show that it has been accepted by the Court that a higher eligibility requirement for appointment as a teacher can be prescribed by the State or a University over and above the minimum requirement prescribed by the Central body being AICTE or UGC. Moreover on a bare reading of the Regulations, it is clear that in the present case only minimum qualifications have been prescribed by the UGC. Therefore in view of the Regulations relied upon by Mr. Jain for the present case and also the judgments mentioned hereinabove, the argument raised by Mr. Jain cannot be accepted. 15. Before concluding, however, it would be relevant to refer to the two judgments relied upon by the petitioner. Firstly reliance was placed on Raj singhs case (supra ). The question before the Court in that case was as to whether the prescription of qualifying a National Eligibility Test to be eligible for appointment as a Lecturer imposed by the UGC was valid and constitutional. The delhi University had contended that the UGC had no authority to prescribe such a condition. The HON BLE Supreme Court ultimately concluded that the UGC could prescribe the said requirement of qualifying the National Eligibility Test. It was further held that the Regulations framed by the UGC under Sec.26 of the Act were mandatory. That was a case decided on the basis of 1991 Regulations framed by the UGC. In the present case, however, the controversy is different. The said judgment therefore would have no applicability to the facts of the present case. Besides that reliance was placed on Neeraja Maliks case (supra ). In that judgment a Division Bench of this Court held that once the State Government had accepted and adopted the Regulations framed by the UGC and treated them as applicable for recruitment to various teaching posts, then any further relaxations/amendments made by the UGC from time to time would equally be binding on the State Government and would not require any fresh adoption. That is not the situation in the present case and therefore said judgment also would have no applicability. 16. Lastly it is necessary to notice one other submission made on behalf of the petitioner. It was argued that in the present case the petitioner fulfilled the qualifications prescribed for appointment as a Lecturer in a University teaching department. However, inspite of this he was not being considered eligible for being appointed as a Lecturer in an affiliated college. It was argued that this was arbitrary and discriminatory. In response thereto, the University contends that the petitioner had applied for appointment as a Lecturer in an affiliated college. He does not fulfill the minimum qualifications laid down by the University for appointment as a Lecturer in an affiliated college. Since the petitioner had applied for appointment as a Lecturer in an affiliated college, I am of the opinion that he would have to satisfy the requirement of qualifications prescribed for that post. He cannot succeed unless he satisfies those requirements. Moreover, in the present case there is no specific challenge raised for the setting aside of the qualifications prescribed by the University for appointment of College Lecturers. Thus, in my view, even this argument of the petitioner cannot be accepted in the facts and circumstances of this case. 17. For the reasons recorded above, I find no merit in this writ petition and the same is accordingly dismissed. In the circumstances of this case, there shall, however, be no order as to costs.