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2007 DIGILAW 2405 (ALL)

ANKUR YADAV v. STATE OF UTTAR PRADESH

2007-09-20

SANJAY MISRA, SUDHIR AGARWAL

body2007
JUDGMENT Hon’ble Sudhir Agarwal, J.—The petitioner, Ankur Yadav, has approached this Court under Article 226 of the Constitution of India by means of the present writ petition aggrieved by the order dated 20th June 2007 passed by the Chancellor, Lucknow University, Lucknow on the representation of respondent No. 4 made under Section 68 of the U.P. State Universities Act, 1973 (hereinafter referred to as the ‘Act’) holding that the petitioner did not possess requisite qualification for the post of Lecturer, Department of Anthropology. 2. The facts relevant to appreciate the dispute giving rise to the present writ petition are that the Lucknow University, Lucknow (hereinafter referred to as ‘University’) is the State University governed by the provisions of the Act; and the Statutes and Ordinances framed thereunder. Chapter XI of the First Statute of Lucknow University provides qualification for appointment to the post of Lecturer in Lucknow University and reads as under : “The candidate should be Post Graduate in relevant subject with 55% Marks and consistently good academic record to his credit. He should have qualified the National Eligibility Test (NET).” 3. The University Grants Commission (hereinafter referred to as ‘U.G.C.’) by notification dated 14th June 2006 made amendment in the U.G.C. (Minimum Qualification Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations by issuing an amendment notification namely “Second Amendment Regulation, 2006” making following provisions by substitution of the existing provision in this regard : “NET shall remain the compulsory requirement for appointment as Lecturer for those with post-graduate degree. However, the Candidates having Ph.D. Degree in the concerned subject are exempted from NET for UG level, teaching only.” 4. It is not disputed that pursuant to the aforesaid amendment dispensing with the requirement of NET qualification for the candidates who have obtained Ph.D. Degree for under-graduate level, the State Government issued an order on 12th July 2006 proposing amendment in the relevant Statutes of the Universities governed by the Act and directing the Universities to take steps for making necessary amendment in the relevant Statutes. The Executive Council of the University in its meeting dated 31st August 2006 resolved to make amendment in the Statute in the manner as it contained in the Government Order dated 12th July 2006 and requested the Chancellor and Government to approve the said amendment. The Executive Council of the University in its meeting dated 31st August 2006 resolved to make amendment in the Statute in the manner as it contained in the Government Order dated 12th July 2006 and requested the Chancellor and Government to approve the said amendment. However, much prior to the aforesaid exercise undertaken either by U.G.C. or by the University or by the Government, the University had already published an advertisement on 27th March 2006 for the post of Lecturer in the Department of Anthropology (reserved for other backward classes) and the qualification prescribed in the said advertisement was as per the First Statute of the University The petitioner, though had not passed NET Examination, but possess Ph.D. Degree applied for the post of Lecturer in the Department of Anthropology and was called for interview by the University vide interview letter dated 9th September 2006. The interview was held on the same day, i.e., 9th September 2006 when the petitioner appeared before the Selection Committee who recommended his name for appointment to the post of Lecturer and after approval by the Executive Council in its meeting dated 19th October 2006, an appointment letter was also issued to the petitioner on 19th October 2006 appointing him on the post of Lecturer in the department of Anthropology. Aggrieved by the said appointment of the petitioner since he did not possess qualification as per the First Statute of the University as it stood on the date of advertisement and also till the date of appointment of the petitioner on the post of Lecturer in the Department of Anthropology, the respondent No. 4 made a representation under Section 68 of the Act before the Chancellor and by the impugned order the Chancellor upholding the said complaint of respondent No. 4 has held that the petitioner did not possess requisite qualification, hence, has cancelled his appointment and directed the University to make the appointment on the post in question in accordance with the qualification prescribed in the First Statute of University. 5. Dr. 5. Dr. L.P. Misra, learned Counsel for the petitioner has assailed the impugned order of the Chancellor on the ground that once U.G.C. has framed Regulations prescribing for certain qualifications, the same is binding on the Universities and any qualification prescribed or provided in any other law would not prevail over the qualification prescribed by the U.G.C. He, therefore, contended that once U.G.C. has framed Regulations providing a particular qualification even if the Statutes of the University under the Act were not amended, the Regulations of the U.G.C would prevail and the appointment made in accordance with the Regulations of the U.G.C. cannot be faulted on the ground that the incumbent did not possess requisite qualification as per the statute of the University. Placing reliance on Entry 63, 64, 65 and 66 List-I read with Entry 25 List-Ill Schedule-VII of the Constitution, he contended that consequences of failure of the University to comply with the recommendations of the U.G.C. is provided under Section 14 of University Grants Commission Act, 1956 (hereinafter referred to as ‘1956 Act1) and since U.G.S. also possess statutory power to frame Regulations under Section 26 of the 1956 Act, therefore, the Regulations of U.G.C. shall prevail over the provisions of the Act or the Statute framed thereunder and even if the First Statute of Lucknow University as such was not amended, it would make no difference since the Regulations framed by the U.G.C. would govern the field and when the appointment was made by the University consistent with the Regulations of U.G.C, the said appointment cannot be said to be Illegal or contrary to law. In support of the aforesaid contention, he also placed reliance on the Apex Court Judgment in Bharati Vidyapeeth and others v. State of Maharashtra and another 2004 (11) SCC 755 , State of Tamilnadu and others v. Adhiyaman Educational & Research Institute and others, 1995 (4) SCC 104 and Gujarat University and another v. Shri Krishna Ranganath Mudhokar and others, AIR 1963 SC 703 . He further contended that once the University took a decision to make appointment in accordance with the decision taken by the State Government as well as U.G.C. adopting the Regulations of U.G.C. and for making amendment in the Statute, even if for some technical reasons actual amendment in the Statute could not be made, that would not invalidate the appointment consciously made by the respondents in accordance with the qualification prescribed by the U.G.C. and the Chancellor has erred in law in cancelling such an appointment of the petitioner. 6. On the contrary, Sri D.K. Arora learned Counsel appearing for respondent No. 2 and Sri S.K. Kalia, Senior Advocate, assisted by Sri Samsher Kalia representing respondent No. 4 and the learned Standing Counsel submit that there is no repugnancy between the Regulations framed by the U.G.C. and the Statute of the University and, therefore, so long as the Statutes are not amended, the petitioner could not have been appointed only on the basis of possessing qualification, which was not in accordance with the Statute as it stood on the date of advertisement or till the last date of submission of application forms or even the date when the selection was made and, therefore, the appointment of the petitioner has rightly been cancelled by the Chancellor. 7. Sri I.B. Singh, learned Counsel appearing for University, however, sought to support the decision taken by the University for appointment of the petitioner, though the said decision of the University stands cancelled in view of the order impugned by the Chancellor. 8. The short question up for consideration in the present writ petition is whether petitioner did possess requisite qualification for appointment to the post in question in the University. To answer the said question, the ancillary but important question required to be answered is whether the qualification prescribed in the Statutes of the University could be subdued suo motu by the Regulations of U.G.C. prescribing minimum qualification for appointment of Teachers in University and Institutions affiliated thereto or that the question of qualification has to be seen independently in the light of the statutes of the University unless actually amended. Entry 63, 64, 65 and 66 List-I Schedule-VII of the Constitution reads : “63. Entry 63, 64, 65 and 66 List-I Schedule-VII of the Constitution reads : “63. The institutions known at the commencement of this Constitution as the Banaras Hindu University, The Aligarh Muslim University and Delhi University; the University established in pursuance of Article 371-E; any other institution declared by Parliament by law to be an institution of national importance. 64. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance. 65. Union agencies and institution for- (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime. 66. Co-ordination and determination of standers in institutions for higher education or research and scientific and technical institution.” 9. 1956 Act has been enacted by the Parliament conferring general duty upon U.G.C. to promote, coordinate, determine and maintain standard of teaching, examination and research in Universities and whatever is required for performance of its functions under the Act for the said purpose. Prior to 1977, education was also in the State List under Entry-11 List-ll Schedule-VII and read as under : “11. Education, including Universities subject to the provisions of Entries- 63,64, 65 and 66 of List-1 and Entry-25 of List-Ill.” Entry-25 List-Ill Schedule-VII also prior to 1977 stood as under : “25. Vocations and technical training of labour. 10. However, Entry-11 List-ll stood deleted vide 42nd Amendment of the Constitution with effect from 3rd January 1977 and Entry-25 List-Ill was substituted as under : “25. Education, including technical education, medical education and universities subject to the provisions of Entries- 63, 64, 65 and 66 of List-1; vocational and technical training of labour. 11. Therefore, so far as the power of Parliament is concerned as it stood initially continued to be the same and the only difference 42nd amendment has made is that subject of legislation pertaining to education which was earlier confined only to the provincial legislation has been placed in the concurrent list, but the same is still subject to the provisions, amongst other, of Entry-66 List-I Schedule-VII of the Constitution. It is not the case of the petitioner that the Act or the Statutes as framed by the University under the Act are in any manner inconsistent with 1956 Act of Parliament. He has confined his submission with reference to the notification dated 14th June 2006 of U.G.C. contending that the First Statute of University insofar as it prescribes qualification inconsistent to the notification dated 14th June 2006 shall stand superseded and the qualification prescribed by the notification dated 14th June 2006 shall govern the field on its own and any other view of the matter would be contrary to law. It is contended that since Regulations have been framed by U.G.C. in exercise of power under the central legislation, any state legislation, which is repugnant to the central law would have to be treated subservient and shall be prevailed over by the central legislation. In our view, the legal principle sought to be relied on has no application in the case in hand and the argument of learned Counsel for the petitioner is wholly misconceived. We may recapitulate at this stage the law pertaining to distribution of legislative powers between centre and state and when and in what manner law made by the respective legislation shall operate. These aspects have been clarified by Articles 246, 248 and 254 of the Constitution, vide Article 246, the Parliament has exclusive power to make laws with respect to any of the matter enumerated in List-I and has also the power to make laws with respect to any of the matters enumerated in List-Ill. The State Legislature has exclusive power to make law with respect to any of the matter enumerated in List-Ill subject of course to Parliament’s power to make law on the subjects enumerated in List-I and List-Ill. Parliament also has power to make laws on matters enumerated in List-ll for any part of territory of India not included in a State. Article 248 provides that Parliament shall have exclusive power to make any law not enumerated in the Concurrent List or State List including the power of making any law imposing a tax not mentioned in those lists. This is the residuary power of legislation conferred on Parliament as also specifically covered by Entry-97 List-1 Schedule-VII. Article 248 provides that Parliament shall have exclusive power to make any law not enumerated in the Concurrent List or State List including the power of making any law imposing a tax not mentioned in those lists. This is the residuary power of legislation conferred on Parliament as also specifically covered by Entry-97 List-1 Schedule-VII. In case of repugnancy in legislation made by Parliament and State Legislature in respect to legislation on the subject referable to List-ll the law made by Parliament whether past, before or after the law made by Legislature of a State shall prevail and to that extent the law of the State Legislature will be void. However, where the law made by the State Legislature is repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, the law made by the State Legislature shall prevail if it has received the assent of the President and shall prevail in that State only. However, it will not prevent Parliament to make at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. Up to this stage, there is no difficulty since the law is well settled and on this exposition of law there is no dispute among the rival parties. Dispute in fact rests on the question as to whether the said law would be applicable to the facts and circumstances of the present case and can it be said that the Regulations contained in the notification dated 14th June 2006 of U.G.C. is such law where the doctrine of repugnancy would have to be applied with reference to the Statutes of University prescribing qualification for appointment to the post of Lecturer in the University. The answer would be evident when we consider the very nature of the Regulations of the U.G.C. up for consideration before this Court. As the title itself shows, the “U.G.C. (Minimum Qualification Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations have been enacted to prescribe the minimum qualification to be possessed by teachers who are to be appointed in the Universities and the Institutions affiliated thereto. As the title itself shows, the “U.G.C. (Minimum Qualification Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations have been enacted to prescribe the minimum qualification to be possessed by teachers who are to be appointed in the Universities and the Institutions affiliated thereto. The Regulations provide the level of standard and qualification to be possessed by the Teacher meaning thereby no University can make appointment on the post of a teacher who possess a qualification which is lower than what is prescribed by the U.G.C. vide the said Regulations. It does not follow that the State Legislature or the University lack further power to add or provides for any higher qualification for appointment of a teacher in the University and in such case, there is no question of repugnancy between the provisions made by the U.G.C. as well as University. A Constitution Bench of the Apex Court in Dr. Preeti Srivastava v. State of Madhya Pradesh and others, 1999 (7) SCC 120 held in para 36 of the judgment as under : “36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of power under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational course. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are : (1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education in the given span of time; (3) the student-teacher ratio; (4) the ratio between the students and the hospital beds available to each student; (5) the calibre of the students admitted to the institution; (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) adequate accommodation for the college and the attached hospital; and (8) the standard of examination held including the manner in which the papers are set and examined and the clinical performance is judged.” 12. In para 38 of the judgment referring to earlier decision in Minor P. Rajendra v. State of Madras, AIR 1968 SC 1012 the Apex Court in Dr. Preeti Srivastava (supra) observed as under : “This Court, therefore, upheld the additional criteria framed by the State for admission which were not inconsistent with the norms for admission laid down by the University Act. Since these additional qualifications did not diminish the eligibility norms under the University Act, this Court upheld the additional criteria laid down by the State as not affecting the standards laid down by the University Act. The question of diluting the standards laid down did not arise.” Similarly, in Dr. Ambesh Kumar v. Principal, L.L.R.M. Medical College, Meerut and others, 1986 (Supp) SCC 543, the Court held as under : “Entry 25 confers on the State Government as well as the State Legislature the powers to make orders in respect of matters mentioned in Entry 25 of List III of the Seventh Schedule to the Constitution i.e. with regard to medical education the only limitation being that such order of the State Legislature will be subject to the provisions of entry 66 of List I i.e. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. The order in question merely specifies a further eligibility qualification for being considered for selection for admission to the post-graduate courses (degree and diploma) in the Medical Colleges in the State in accordance with the criteria laid down by Indian Medical Council. This does not in any way encroach upon the Regulations that have been framed under the provisions of Section 33 of the Indian Medical Council Act. On the other hand in order to promote and further the determination of standards in institutions for higher education, the State Government who runs these colleges provide an additional eligibility qualification. A similar question crept up in the case of State of A.P. v. Lavu Narendranath, (1971) 1 SCC 607 . In that case the Government of Andhra Pradesh prescribed for the first time in July 1970 an entrance test for admission to the Medical Colleges and also prescribed the standard for eligibility for the test. The validity of this order prescribing the entrance test was challenged by some unsuccessful candidates on the ground that it encroaches upon the central subject listed in Entry 66 of List I of Seventh Schedule to the Constitution. It was held by the Court that this test prescribed by the Government in no way militated with the powers of the Parliament under Entry 66 of List I of the Seventh Schedule to the Constitution. It was also held that the Entry conferred power on the Parliament to make laws for laying down how standards in an institution for higher education are to be determined and how they can be coordinated. It had no relation to a test prescribed by Government or by a university for selection of a number of students from out of a large number applying for admission to a particular course of sturdy.” 13. It has not been argued that the qualification contained in the Statutes of University is in any manner lower than that prescribed by the U.G.C. vide notification dated 14th June 2006. On the contrary, the U.G.C. has dispensed with the qualification of NET examination passed for a candidate who possess Ph.D. Degree for appointment to the post of Teacher at undergraduate level, but the Statute as existed in the University makes the qualification of Net Examination passed a necessary and compulsory qualification for appointment to the post of Lecturer whether the candidate posses Ph.D. Degree or not. Therefore, in no manner it can be said that the Statute contained a qualification which is lower than that is prescribed by the U.G.C.’s notification dated 14th June 2006. That being so, the Statutes of the University framed under the Act would govern the field and so long as the Statutes are not amended, no person can be appointed in the University governed by the Act and the Statutes framed thereunder by ignoring the qualification prescribed thereunder. No amount of proposal, acceptance, waiver, acquiescence etc. either by the University or the State Government would have the effect of amending the Statute unless the Statute as such is amended in accordance with the procedure prescribed under Section 50 of the Act, which reads as under : 50. Statutes how made.—(1) The First Statutes of the University shall be made by the State Government by notification in the Gazette and in the case of any existing University, for so long as the First Statutes are not so made, the Statutes as in force immediately before the commencement of this Act, in so far as they not inconsistent with the provisions of this Act, shall, subject to such adaptations and modifications whether by way of repeal, amendment or addition as may be necessary or expedient, as the State Government, may, by notification in the Gazette provide, continue in force, and any such adaptation or modification shall not be called in question. (1-A) The State Government may by notification in the Gazette amend whether by way of addition, substitution or omission, the first Statutes at any time up to December 31, 1990 and any such amendment may be retrospective to a date not earlier than the date of such commencement. (1-B) Until the First Statutes of the Purvanchal University are made under this section, the Statutes of the University of Gorakhpur, as in force immediately before the establishment of the said University shall apply to it subject to such adaptations and modifications as the State Government may, by notification, provide. (1-B) Until the First Statutes of the Purvanchal University are made under this section, the Statutes of the University of Gorakhpur, as in force immediately before the establishment of the said University shall apply to it subject to such adaptations and modifications as the State Government may, by notification, provide. (2) The Executive Council may, at any time after December 31, 1990 make new or additional Statutes or may amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A) (3) The Executive Council shall not propose the draft of any Statutes affecting the status, power or constitution of any authority of the University until such authority has been given an opportunity of expressing its opinion upon the proposal and any opinion so expressed shall be in writing and shall be submitted to the Chancellor. (4) Every new Statutes or addition to a Statute or any amendment or repeal of a Statute shall be submitted to the Chancellor who may assent to it or withhold his assent therefrom or remit it to the Executive Council for further consideration. (5) A Statute passed by the Executive Council shall have effect from the date it is assented to by the Chancellor or from such later date as may be specified by him. (6) Notwithstanding anything contained in the foregoing sub-section the State Government may in order to implement any decision taken by it in the interest of learning, teaching or research or for the benefit of teachers, students or other staff or on the basis of any suggestion or recommendation of the University Grants Commission or the State or National Education Policy with regard to the qualifications of the teachers, require the Executive Council to make new or additional Statutes or amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A) within a specified time and if the Executive Council fails to comply with such requirement the State Government may, with the assent of the Chancellor, make new or additional Statutes or amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A). (7) The Executive Council shall have no power to amend or repeal the Statutes made by the State Government under sub-section (6) or to make new or additional Statutes inconsistent with such Statutes. 14. (7) The Executive Council shall have no power to amend or repeal the Statutes made by the State Government under sub-section (6) or to make new or additional Statutes inconsistent with such Statutes. 14. It is not disputed that the First Statute of the University was not amended in the manner provided under Section 50 of the Act till the date the petitioner was appointed and thus principle of estoppel, waiver or acquiescence would not apply against law. The reliance placed by the learned Counsel for the petitioner to Section 14 and 26 of 1956 Act does not help him in any manner and it cannot be said that the First Statute of the University should be deemed to have been amended or prevailed over by the Regulations of U.G.C. though the Statute in accordance with Section 50 of the Act, in fact, has not been amended, yet the petitioner was appointed without possessing requisite qualification prescribed in the Statute. In this view of the matter, we have no hesitation in taking a view that the petitioner lack requisite qualification for appointment to the post of Lecturer in the Department of Anthropology and University has erred in law in appointing him on the said post. The decision taken by the Chancellor declaring appointment of the petitioner illegal, therefore, cannot be faulted and in our view, the order impugned in the present writ petition warrants no interference. 15. The writ petition, therefore, lacks merit and is, accordingly, dismissed. There shall be no order as to costs. ————