ORDER
Dr. D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Respondents waive service. By consent, petition is taken up for final hearing.
2. The petitioner was appointed as a part time lecturer in law in the 2nd respondent College in June 1989. The petitioner passed the L.L.B. degree examination in the IInd class and in May 1989 passed the L.L.M. examination with a percentage of 54.11. The appointment of the petitioner as a part time lecturer was approved by the University of Bombay (subsequently, Mumbai) from time to time during the period 1989 to 1999. A post of full time lecturer in the 2nd respondent fell vacant at the end of the academic year 1998-1999. After appearing for an interview before the Local Selection Committee constituted by the University of Mumbai under Statute 417 (iii), the petitioner came to be selected on a temporary basis to the full time post of lecturer in law in the 2nd respondent. By a letter dated 22-6-1999, the 2nd respondent informed the petitioner that her appointment as aforesaid was up to the end of the academic year 1999-2000. By a letter dated 14-2-2000, the Principal of the 2nd respondent informed the petitioner that her appointment as a full time lecturer in law during the academic year 1999-2000 “has been disapproved by the University for deficiency of qualifications”. A copy of the letter dated 4-2-2000 addressed by the University to the Principal of the
2nd respondent is annexed to the writ petition and, in so far as is material, the letter states that the appointment of the petitioner as a full time lecturer in law could not be considered by the University as the petitioner does not possess 55% marks at the Master’s level.
3. In impugning the decision of the University not to grant approval to the appointment of the petitioner as a full time lecturer in law, the petitioner contends, firstly, that the University is estopped from withholding its approval since, during the years 1989-1999, the University had granted its approval to the appointment of the petitioner as a part time lecturer. Secondly, the petitioner seeks to rely upon a circular of the University dated 24-7-1998 which provides that where a candidate appearing for a post graduate degree examination in the faculty of law secures more than 54% marks but less than 55% marks in the aggregate at one and the same attempt, the candidate should be given grace marks so as to enable her to secure 55% marks in the aggregate. By the said circular, Ordinance 224 has been brought into force which contains, the aforesaid provision. However, since the said Ordinance has been brought into force in the first half of the year 1998 the petitioner challenges the said cut off date as arbitrary. The petitioner relies upon Rule 8 of the Bar Council of India Rules (Part 4 section B) which provides as follows :—
“Full time teachers of law including the Principal of the college shall ordinarily be holders of the Masters degree in law and where the holders of Masters degree in law are not available, persons with teaching experience for a minimum period of 5 years in law may be considered. Part time teachers other than one with L.L.M. degree shall have a minimum practice of 10 years at the Bar.”
Finally it is urged by the petitioner that the requirement of obtaining 55% marks was introduced by the University of Mumbai for the first time by a circular dated 17-2-1993. According to the petitioner, this circular is retrospectively sought to be applied to her which would be illegal.
4. In considering the tenability of these submissions urged on behalf of the petitioner, reference must be made to the requirement of the University of Mumbai as set out in the Circular dated 17-2-1993. The said Circular was issued by the Vice Chancellor in exercise of the powers conferred upon him by section 11(6)(b) of the Bombay University Act, 1974. The Circular records that regulations have been framed by the University Grants Commission under a notification dated 19-9-1991. The Government of Maharashtra in the Higher & Technical Education and Employment Department issued a Government Resolution dated 23-10-1992 directing that the regulations framed by the University Grants Commission shall be made applicable to the appointment of teachers in the non-agricultural Universities and the affiliated colleges. The Government Resolution of 23-10-1992 was modified on 27-11-1992 for prescribing the minimum qualifications for the posts of Professor, Reader and Lecturer. In so far as appointments of lectures in law colleges are concerned, the circular issued by the University makes the following provisions :—
“(a) Arts, Science. Social Sciences, Commerce, Education, Physical Education, Foreign Languages and Law.
Good academic record with at least 55% marks or an equivalent grade at Master’s degree level in the relevant subject from an Indian University or an equivalent degree from a foreign University.”
Thus, it is abundantly clear that a candidate in order to qualify for appointment to the post of a lecturer in law should have secured at least 55% marks at the Master’s degree level. The petitioner, admittedly, does not possess 55% marks at the Master’s degree level and, upon the plain terms of the aforesaid circular, is ineligible for appointment to the post of full time lecturer.
5. Learned Counsel appearing on behalf of the University of Mumbai submitted that the requirement of obtaining at least 55% marks at the Master’s degree level, has been enunciated by the University Grants Commission. Counsel submits that the University was duty bound to follow the regulations framed by the U.G.C. and in this context relied upon a judgment of the Supreme Court in University of Delhi v. Raj Singh and others, 1994 Supp (3) S.C.C. 516. Mr. Justice S.P. Bharucha who delivered the judgment of the Supreme Court, noted that section 26(e) of the U.G.C. Act, 1956 empowers the U.G.C. to define the qualifications that should ordinarily be required for any person to be appointed to the teaching staff of a University, having regard to the branch of education in which he is expected to give instruction. Similarly Clause (9) of section 26 empowers the U.G.C. by Regulations to make regulations providing for the maintenance of standards and the conduct of work and facilities in the University. The Commission had framed the U.G.C. (Qualifications Required of a Person to be Appointed to the Teaching Staff of a University, and Institutions Affiliated to it) Regulations, 1991 which apply to every University and every institution including a constituent or affiliated college. Regulation 2 places an embargo on the appointment of any person to a teaching post in the University or in any of its institutions including constituent or affiliated colleges if he or she does not fulfill the requirements as to qualifications provided in Schedule I. Relaxation in the prescribed qualifications can be made by the University only with the prior approval of the University Grants Commission. Clause 3 of the Regulations provides for the consequences of the failure of a University to comply with the recommendations. In dealing with the effect of the Regulations, the Supreme held as follows :—
“The first proviso to Clause 2 permits relaxation in the prescribed qualifications by a University provided it is made with the prior approval of the U.G.C. This is because the said Regulations, made under the provisions of section 26(1)(e), define the qualifications that are ordinarily and not invariably required of a lecturer. The second proviso to Clause 2 makes the application of the said Regulations prospective. Clause 3 of the said Regulations provides for the consequence of the failure of a University to comply with the recommendation made in Clause 2 in the same terms as are set out in section 14 of the U.G.C. Act. The provisions of Clause 2 of the said regulations are, therefore, recommendatory in character. It would be open to a University to comply with the provisions of Clause 2 by employing as lecturers only such persons as fulfill the requirements as to qualifications for the appropriate subject provided in the schedule to the said Regulations. It would also be open, in specific cases, for the University to seek the prior approval of the U.G.C.
to relax these requirements. Yet again, it would be open to the University not to comply with the provisions of Clause 2, in which case, in the event that it failed to satisfy the U.G.C that it had done so for good cause, it would lose its grant from the U.G.C. The said regulations do not impinge upon the power of the University to select its teachers.”
In the present case, the Counsel for the University stated before us that the requirement of obtaining 55% marks at LL.M. examination was laid down by the University and this has to be observed since it is part of the requirements of the U.G.C. In view of the judgment of the Supreme Court in the University of Delhi case (supra) it will be open to the University to apply to the U.G.C. for a relaxation of the requirement of obtaining 55% marks at the Master’s level in the specific case of the petitioner for appointment to the post of a full time lecturer in law.
6. In the present case, regard must be had to a few peculiar features relating to appointments of full time lecturers in law. Increasingly, over the years, Universities and educational institutions are finding it difficult to recruit competent and suitable candidates for appointment to full time faculty posts in law colleges in the State. The reason for this may partly lie in the more lucrative avenues which may be open to young men and women who secure degrees in law as compared to the terms and conditions of service available to full time teachers. This is indeed an unfortunate development. The foundation for a successful professional in any discipline rests upon the context and quality of the education which is imparted in the course of educational programme leading to the awarding of a professional degree. Efforts have, therefore to be augmented to strengthen the resource base of educational institutions imparting training in law and it is only with the development of a competent set of teachers that legal education can impart meaningful training to potential lawyers. The Principal of the 2nd respondent-college who sought the permission of the Court to address us in person on the problems faced by the college in recruiting law teachers submitted that it was almost impossible to find full time law teachers who meet the requirements prescribed by the U.G.C. While we appreciate the practical difficulties faced by colleges such as the 2nd respondent, we do not consider it to be within the province and jurisdiction of the High Court under Article 226 to direct a relaxation of standards. A relaxation of standards particularly on the ground of equities is liable to degenerate into a dilution of the already falling standards of legal education. An expert academic body has prescribed that the full time teacher must possess at least 55% marks at the Master’s degree level and, that being the position, there is no reason for the Court to interfere in the standards which have been set in the interest of education.
7. The learned Counsel for the petitioner submitted that in a number of other Universities in the State of Maharashtra, the problem is dealt with by permitting students to improve upon their performance at the LL.M. degree examination so that a person in the position of the petitioner can attain the level of marks required for appointment to a full time post. Our attention has, however, been drawn to the fact that the University of Mumbai does not permit a student from the post graduate faculty of law to improve upon the marks obtained in the LL.M. degree examination. Learned Counsel for the
University, after seeking instructions, informed the Court that this is an area where a certain degree of modification can be considered by the University in the interests of teachers and in the interest of education. The learned Counsel informed us that the University through the Academic Council will process a scheme to permit candidates at the LL.M. degree examination to improve upon their marks. This, in our opinion, is eminently desirable because while on the one hand it will ensure that educational standards are maintained by requiring full time lecturers to achieve at least 55% marks, experienced lecturers will not be shut out from attaining that standard by improving upon their performance. We hope and trust that in terms of the statement made before us by the learned Counsel for the University, the scheme for improvement of performance at the LL.M. degree examination will be duly considered and, if found proper, be implemented. We direct that this process be completed expeditiously.
8. We may briefly deal with the submissions made on behalf of the petitioner. There is no merit in the submission that the University was estopped from denying its approval to the appointment of the petitioner on the ground that her appointment as a part time lecturer had been approved during the period 1989-1999. The requirement of 55% marks at the Master’s degree level has been duly prescribed in exercise of powers conferred by section 11(6)(b) of the Bombay University Act, 1974 and there is no question of the University being estopped from applying a clear principle of law duly enunciated. The second contention in regard to grace marks in also without merit. The Circular dated 24-7-1998 speaks of the grant of grace marks to candidates. That circular cannot operate to dilute the requirement of 55% marks at the Master’s degree level, as a condition of eligibility as a full time lecturer in law.
9. There is also no merit in the submission that the circular dated 17-2-1993 is being applied restrospectively. The petitioner applied for a full time post in 1999. The provisions of the circular are clearly applicable and the petitioner was bound to fulfill the conditions of eligibility prescribed by the University for appointment to the post.
10. In conclusion, therefore, we are of the view that the impugned decision of the University cannot be faulted. However, in view of the decision of the Supreme Court in the University of Delhi case (supra), and having regard particularly to the paucity of teachers for teaching full time courses in law, the 2nd respondent-college will forward the case of the petitioner to the University which will, in turn, move the U.G.C. for seeking a relaxation of the qualifications prescribed by the U.G.C. of obtaining at least 55% marks at the Master’s degree level in the specific case of the petitioner for appointment as a full time lecturer in law. We also record the statement of the University that necessary action will be taken to extend the scheme for improvement of performance to the LL.M. examination. In the meantime, we are of the view that it will be fair and just to direct that the services of the petitioner should be continued until a decision is taken by the U.G.C. We, therefore, direct that until the U.G.C. communicates its decision on the issue of relaxation to the 2nd respondent, the services of the petitioner be continued by the 2nd respondent-college. The parties will be at liberty to apply after the decision of the U.G.C. is received.
The writ petition thus stands disposed of in the aforesaid terms with no order as to costs.
An ordinary copy of this order duly authenticated by the Personal Secretary of this Court be made available to the parties.
10. Order accordingly.