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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7570 OF 2011
[Arising out of SLP (C) No.3568/2006]
Chandigarh Administration through the
Director Public Instructions (Colleges), Chandigarh ... Appellant
Vs.
Usha Kheterpal Waie & Ors. ... Respondents
J U D G M E N T
R.V.RAVEENDRAN,J.
Leave granted.
2. There are four Government Arts and Science colleges in Union
Territory of Chandigarh. Till 1988, the Chandigarh Administration,
appellant herein, used to fill the vacancies of the post of Principal of the Arts
and Science colleges by deputation from neighbouring States of Punjab and
Haryana. When the post of Principal in Government College for Boys,
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Sector 11, Chandigarh was due to fall vacant on 29.2.1988 on
superannuation of a deputationist, two UT cadre lecturers filed an
application before the Central Administrative Tribunal, Chandigarh, seeking
a direction that UT cadre lecturers from the Government Arts & Science
Colleges should be considered for the post of Principal instead of taking
someone on deputation from the neighbouring states. The said application
was ultimately disposed of with a direction to the Chandigarh
Administration to consider the case of the applicants and other lecturers of
UT cadre who may fall within the zone of consideration as may be
determined by a competent authority, for regular appointment to the post of
Principals of the Government Arts & Science colleges, on the basis of
relevant criteria, and appoint those who were found suitable. In pursuance of
the said order, the Chandigarh Administration fixed 30 years experience as
Lecturer as the eligibility criterion for promotion of lecturers to the post of
Principal, though at that time (1989-90) there were no lecturer with 30 years
experience in the cadre. As no UT cadre lecturer possessed such experience,
again deputationists were appointed as Principals in the said colleges.
3. Feeling aggrieved, the UT cadre lecturers again approached the
Tribunal and their applications were allowed by the Tribunal by order dated
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12.1.1991, quashing the order prescribing 30 years experience as also the
order appointing deputationists. Thereafter, whenever vacancies arose, it is
stated that the appellant promoted UT cadre lecturers as Principals. It may be
mentioned that persons so promoted did not possess a Ph.D. degree.
4. By notification dated 13.1.1992, Chandigarh Administration adopted
the corresponding Service Rules of Punjab with effect from 1.4.1991 to
govern the conditions of service of its employees, where it had no rules
governing the matter. The effect of it was that the provisions of Punjab
Educational Service (College Grade) (Class I) Rules, 1976 (as amended in
1983 (for short `1976 Punjab Rules’) became applicable in regard to the
recruitment of candidates to UT college cadre. Under the said 1976 Punjab
Rules, the qualification and experience for appointment to the service was as
under: For direct recruitment : (a) MA, first division or high second
division (50%) in relevant subject or an equivalent degree of a foreign
university with eight years teaching experience; (b) Ph.D. with eight years
teaching experience; By promotion : Experience of working as a lecturer for
a minimum period of eight years.
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5. When matters stood thus the Administrator, Chandigarh
Administration, framed and notified the “Chandigarh Educational Service
(Group A Gazetted) Government Arts and Science College Rules, 2000 (for
short `Recruitment Rules’) vide notification dated 29.3.2000 published in
the Gazette dated 1.4.2000. The said Rules were framed in consultation with
the Union Public Service Commission (`UPSC’ for short) and sent to the
Government of India for being issued in the name of the President of India.
As per the said Rules, the appointment to the posts of Principal in
Government Arts and Science Colleges was 25% by direct recruitment and
75% by promotion. The said rules prescribed the educational qualification of
Ph.D. for appointment to the post of Principal by direct recruitment. The
appellant advertised a post of Principal (which was falling vacant on
31.7.2001) on 14.7.2001 prescribing the following eligibility criteria as per
the said Rules :
“Educational and other qualifications required for direct recruits :
Essential: (i) A Doctorate degree or equivalent with at least 55% marks at
the Master’s Degree level from a recognized university or equivalent; (ii)
12 years teaching experience of degree classes in a college affiliated to a
university or equivalent.”
6. Respondents 1 to 4 had joined UT Colleges (Arts & Science) cadre in
1969 and 1970 and were serving as lecturers in the Government Arts &
Science Colleges. None of them possessed a Ph.D. degree. They filed OA
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No.684/CH/2001 before the Central Administrative Tribunal challenged the
said Recruitment Rules and the advertisement dated 14.7.2001, as
unconstitutional and for a direction that they along with other eligible
candidates from the UT cadre should be considered for promotion to the said
post. It was contended that the Administrator of the Union Territory had no
power to make the said Recruitment Rules, as it was only the President of
India who was competent to frame such rules under Article 309 of the
Constitution of India. They also contended that on earlier occasions the
appellant had promoted lecturers as Principals without insisting upon the
qualification of Ph.D.; and that though they did not possess Ph.D. degree,
having regard to the eligibility criteria earlier being applied, they were
eligible for being considered for the post of Principals, and the Chandigarh
Administration should fill the vacancies of Principals, by applying the
eligibility criteria which was prevalent prior to the making of the said
recruitment rules.
7. The appellant, in its statement of objections filed before the Tribunal
conceded that the “power to notify the recruitment rules for Class I Posts
vested with the President of India”. The appellant stated that they had
forwarded the Recruitment Rules to the government of India under cover of
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letter dated 21.9.2001, to notify the said Rules under the name of President
of India, and such notification was awaited. They contended that pending
publication of the Rules, they could resort to recruitment in terms of the
draft Rules on the basis of administrative instructions. The appellant also
contested the application by contending that the post in question was
required to be filled under the direct recruitment quota, and none of the
applicants were eligible as they did not possess Ph.D. degree, which was the
qualification prescribed by the university Grants Commission (`UGC’ for
short) and approved by the UPSC, and therefore none of them could be
considered for appointment to the said post.
8. The said application (OA No.648 – CH of 2001) was allowed by the
Tribunal, by order dated 22.4.2002. The Tribunal held that in the absence of
any recruitment rules prescribing such qualification, Ph.D. degree was not an
eligibility requirement for the post of Principal. The Tribunal held that UGC
guidelines would not apply as the Rules providing for 25% by direct
recruitment was not in force; and that even if the new rules were to be duly
framed, such Rules would apply only to future vacancies and not to the
vacancies which arose on 31.7.2001. The Tribunal held that in the absence
of any Rules, it was appropriate to take guidance from its earlier judgments
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dated 12.9.1989 and 12.11.1991 which accepted the administrative
instructions dated 20.8.1987 permitting UT cadre lecturers to be promoted as
Principals, even though they did not possess any Ph.D. degree. The Tribunal
also rejected the contention of the appellant that as per notification dated
13.1.1992, the 1976 Punjab Rules became applicable under which 75% of
the posts had to be filled by promotion and 25% by direct recruitment with
Ph.D as an eligibility requirement, on the ground that no material was placed
to show that the said 1976 Punjab Rules were ever followed for appointing
Principals in UT of Chandigarh. The Tribunal therefore quashed the
advertisement dated 14.7.2001 inviting applications for the post of Principal
and directed the appellant to fill the vacancy according to law, keeping in
view the eligibility criteria and the past practice till the Rules are framed and
notified by the competent authority. The said order of the Tribunal was
challenged by the appellant before the High Court. The High Court
dismissed the writ petition by impugned order dated 26.10.2005, affirming
the findings of the Tribunal.
9. Feeling aggrieved, the appellant has filed this appeal by special leave
raising the following contentions: (i) When appellant has framed the draft
Rules in consultation with UPSC and had been placed the Rules before the
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central government, for being notified under the name of the President of
India, pending such notification of the Rules, it was entitled to invite
applications for the post of Principal in terms of the said Rules by treating
them as draft rules under consideration. (ii) The Tribunal and the High Court
could not substitute the eligibility requirements prescribed by the appellant.
(iii) The Tribunal and the High Court could not have ignored the notification
dated 13.1.1992 adopting the corresponding Punjab Rules to govern the
service of its employees wherever there were no rules of the Chandigarh
Administration. (iv) The 1976 Punjab Rules were applicable, and in terms of
it, the advertisement for filling one post of Principal by direct recruitment by
prescribing the eligibility requirement of Ph.D was valid. The appellant also
pointed out that another bench of the Tribunal by order dated 3.8.1995 in
OA No.844-CH of 1994 has clearly held that the 1976 Punjab Rules would
apply to recruitment/employment, having regard to the notification dated
13.1.1992 of the Chandigarh Administration adopting the Punjab Rules; and
as there was a clear divergence between the two decisions of the Tribunal,
the High Court could not have mechanically affirmed the decision of the
Tribunal that the 1996 Punjab Rules were inapplicable.
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10. The first question for our consideration is whether the appellant could
have prescribed in the advertisement, the educational qualifications for the
post of Principal in terms of its 2000 Recruitment rules. The Administrator
of the Chandigarh Administration made the Chandigarh Educational Service
(Group A) Gazetted Government Arts & Science College Rules, 2000 vide
notification dated 29.3.2000 and published it in the Gazette dated 1.4.2000.
The said Rules were made in consultation with the UPSC, taking note of the
UGC guidelines prescribing Ph.D. degree as an eligibility criteria for the
post of Principals to be filled by direct recruitment. The Rules were sent to
the Central Government for being notified in the name of the President of
India and were pending consideration. It is in these circumstances the
appellant advertised the post in terms of the said Rules, by prescribing the
educational qualification of Ph.D. for direct recruitment to the post of
Principal. In Abraham Jacob vs. Union of India [1998 (4) SCC 65], this
Court held that where draft rules have been made, an administrative decision
taken to make promotions in accordance with the draft rules which were to
be finalized later on, was valid. In Vimal Kumari vs. State of Haryana [1998
(4) SCC 114], this Court held that it is open to the Government to regulate
the service conditions of the employees for whom the rules were made, even
if they were in their draft stage, provided there is a clear intention on the part
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of the Government to enforce those rules in the near future. In this case, the
High Court however rejected the advertisement on the ground that the
regular rules were not notified by the President of India even after five years,
when the High Court decided the matter. But what is relevant to test the
validity of the advertisement, was the intention of the appellant when the
advertisement was issued. At that time, the appellant had the clear intention
to enforce the Recruitment Rules in future as they had been made in
consultation with UPSC, in accordance with the UGC guidelines and the
Rules had been sent to the Central Government for being notified by the
President and the matter was pending consideration for a few months when
the advertisement was issued. The appellant at that time had no inkling that
there would be inordinate delay or the Rules may not be notified by the
President. Therefore, the advertisement in terms of the 2000 Recruitment
rules was valid.
11. Even in the absence of valid rules, it cannot be said that the
advertisement was invalid. In exercise of its executive power, the appellant
could issue administrative instructions from time to time in regard to all
matters which were not governed by any statute or rules made under the
Constitution or a statute. In fact it is the case of the respondents that the
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appellant had issued such instructions on 20.8.1987 directing that the
lecturers from UT cadre should be promoted as principals. In fact, the
administrator of appellant had issued a notification on 13.1.1992 adopting
the corresponding Punjab Rules to govern the service conditions of its
employees. If so, the administrator of appellant could issue fresh directions
in regard to qualifications for recruitment. The Recruitment Rules made by
the Administrator were duly notified. Though they were not rules under
Article 309, they were nevertheless valid as administrative instructions
issued in exercise of executive power, in the absence of any other Rules
governing the matter. Once the recruitment rules, made by the
Administrator, were notified, they became binding executive instructions
which would hold good till the rules were made under Article 309.
Therefore, the advertisement issued in terms of the said Recruitment Rules
was valid.
12. The Tribunal and High Court also committed an error in holding that
the appellant could not prescribe the qualifications of Ph.D. for the post of
principal merely because earlier the said educational qualification was not
prescribed or insisted. The Recruitment Rules were made in consultation
with UPSC, to give effect to the UGC guidelines which prescribed Ph.D.
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degree as the eligibility qualification for direct recruitment of Principals. In
fact, even the 1976 Punjab Rules prescribed Ph.D. degree as a qualification.
In several States, Ph.D. is a requirement for direct recruitment to the post of
a college Principal. When the said qualification is not unrelated to the duties
and functions of the post of Principal and is reasonably relevant to maintain
the high standards of education, there is absolutely no reason to interfere
with the provision of the said requirement as an eligibility requirement. It is
now well settled that it is for the rule-making authority or the appointing
authority to prescribe the mode of selection and minimum qualification for
any recruitment. Courts and tribunals can neither prescribe the qualifications
nor entrench upon the power of the concerned authority so long as the
qualifications prescribed by the employer is reasonably relevant and has a
rational nexus with the functions and duties attached to the post and are not
violative of any provision of Constitution, statute and Rules. [See J.
Rangaswamy vs. Government of Andhra Pradesh – 1990 (1) SCC 288 and
P.U. Joshi vs. Accountant General – 2003 (2) SCC 632]. In the absence of
any rules, under Article 309 or Statute, the appellant had the power to
appoint under its general power of administration and prescribe such
eligibility criteria as it is considered to be necessary and reasonable.
Therefore, it cannot be said that the prescription of Ph.D. is unreasonable.
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13. The Tribunal and the High Court have held that in the years 1989 and
1991, the Tribunal had accepted the earlier administrative instructions dated
20.8.1987 which required the UT cadre employees to be considered for the
post has to be followed. The fact that at that time Ph.D. degree was not
insisted upon, does not mean that for all times to come, Ph.D. degree could
not be insisted. Ph.D. degree was made a qualification because UGC
guidelines required it for direct recruitment post and the UPSC approved the
same. Therefore, merely because on some earlier occasions, the posts of
Principal were filled by UT cadre lecturers without Ph.D. degree, it cannot
be argued that the Ph.D. degree cannot be prescribed subsequently.
14. The Tribunal and High Court were not justified in holding that 1976
Punjab Rules were not applicable on the ground that no material had been
placed to show that they were followed while appointing a principal in the
past. The fact that the appellant had issued a notification dated 13.1.1992
adopting the corresponding Punjab Rules governing the conditions of
service of its employees, is not disputed. Therefore when appellant acted in
accordance with the said directions, it is not necessary to consider whether
there were any occasion between 1992 to 2001 to invoke the said rules or
whether they were in fact invoked. The notification dated 13.1.1992 could
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not have been brushed aside in the manner done by the Tribunal and the
High Court.
15. In view of the above, we allow this appeal and set aside the order
dated 22.4.2002 of the Tribunal and the order dated 26.10.2005 of the High
Court. The original application (OA No.648 – CH of 2001) filed by
respondents 2 to 5 before the Tribunal is dismissed. The prayer that
Chandigarh Administration should be directed to fill the vacancies of
Principals in accordance with the eligibility criteria as was prevalent prior to
the issue of the notification dated 14.7.2001, is rejected. The notification
prescribing educational qualification of doctorate degree or equivalent with
55% marks at the Master’s Degree Level examination or 12 years teaching
experience of degree classes in a college affiliated to any university or
equivalent is upheld as validly prescribing the qualifications for filling the
post by direct recruitment.
…………………………..J.
(R V Raveendran)
New Delhi; ...............................J.
September 2, 2011. (Markandey Katju)
