CASE NO.: Appeal (civil) 365-370 of 1994 PETITIONER: YOGENDRA SINGH RAWAT AND ORS. ETC. RESPONDENT: HEMWATI NANDAN BAHUGUNA GARHWAL UNIVERSITY AND ORS. DATE OF JUDGMENT: 05/02/1998 BENCH: S. SAGHIR AHMAD & D.P. WADHWA JUDGMENT:
JUDGMENT
1998 (1) SCR 685
The Judgment of the Court was delivered by D.P. WADHWA, J. Special leave
granted. The appellants filed writ petitions in the High Court of
Judicature at Allahabad praying that they be granted substantive
appointments as lecturers in the Hemwati Nandan Bahuguna Garhwal University
(for short ‘the University’) in terms of the Uttar Pradesh State University
(Second Amendment) Ordinance (No. 44 of 1991) which was latter passed as
Act No. 1 of 1992 by the U.P. Legislature called the U.P. State
Universities (Amendment) Act, 1992 (for short, the ‘amending Act’) . The
amending Act amended the U.P. State Universities Act, 1973 (for short, the
‘Principal Act’). A Division Bench of the High Court, however, did not find
any merit in the writ petitions and dismissed the same by judgment dated
August 20, 1993. Aggrieved, the appellants have come to this Court.
Originally there were eight appellants. Appellants Y.S. Rawat, G.P. Sharma
and J.P. Madhwal are stated to be no longer interested in pursuing their
appeals. The appellants before us are now Dr. L.P. Lakhera, Shri R.S. Negi,
Dr. M. S. Sati, Shri Ajay Pal Singh and Dr. Surendra Joshi.
Sub-section (6) of Section 13 of the Universities Act provides that where
any matter is of urgent nature requiring immediate action and the same
cannot be immediately dealt with by any officer or authority or any other
body of the University empowered by or under the Universities Act then to
deal with that situation the Vice-Chancellor may take action as he may deem
fit. He shall thereafter forthwith report the action taken by him to the
Chancellor and also to the officer, authority or other body who or which in
the ordinary course would have dealt with the matter. Under sub-section (8)
of Section 13 where exercise of power by the Vice Chancellor under sub-
section (6) involved the appointment of an officer or a teacher of the
University, such appointment shall terminate on the appointment being made
in the prescribed manner or on the expiration of a period of six months
from the date of the order of the Vice-Chancellor, whichever is earlier.
That would mean that the appointment of a lecturer made by the Vice-
Chancellor could not last for more than six months. Section 31 of the
Universities Act provides for the appointment of teachers of the
University. Sub-section (1) thereof provides that the teachers of the
University shall be appointed by the Executive Council on the
recommendations of a Selection Committee in the manner laid down in that
Section. Sub-section (10) of Section 31 provides that no selection for any
appointment shall be made except after advertisement of the vacancy in at
least three issues of two newspapers having adequate circulation in the
State of Uttar Pradesh. Section 49 deals with Statutes and clause (d) lays
down that the Statutes may provide for the classification and recruitment
(including minimum qualifications and experience) of the teachers of the
University. As to what are the qualifications prescribed for a lecturer by
relevant Statutes of the University, it will be appropriate to refer to the
Ordinance which was subsequently replaced by Act No. 1 of 1992. Sub-section
(2) of Section 1 of this amending Act provided that this Act shall be
deemed to have come into force on November 22, 1991. Sections 2 and 3 of
this Act amending the Principal Act, that is the University Act, are as
follows:
“2. In Section 13 of the Uttar Pradesh State University Act, 1973, as
amended and re-enacted by the Uttar Pradesh University (Re-enactment and
Amendment) Act, 1974 hereinafter referred to as the Principal Act:-
(a) in sub-section (6), after the words “where any matter” in words “other
than the appointment of teacher of the University” shall be inserted.
(b) in sub-section, the words “or a teacher of the University” shall be
omitted.
3. In Section 31 of the Principal Act:-
(a) in sub-section (1) words “The selection committee shall meet as often
as necessary” shall be inserted at the end:-
(b) in sub-section (3) after clause (b) and the provisions thereto, the
following clause shall be inserted, namely:-
(c) any teacher of the Universities who was appointed as lecturer on or
before June 30, 1991 without reference to the Selection Committee by way of
a short term arrangement in accordance with the provisions for the time
being in force for such appointment may be given substantive appointment,
by the Executive Council, if, any substantive vacancy of the same cadre and
grade in the same department is available on November 22, 1991 if such
teacher: –
(I) is serving as such on November 22, 1991 continuously since such initial
appointment by way of short term arrangement;
(II) possessed on November 22, 1991 the qualification required for regular
appointment to the post under the provisions of the relevant statutes in
force on the date of the initial appointment;
(III) has been found suitable for regular appointment by the Executive
Council.”
Therefore, the controversy before the High Court was as to what would be
the qualifications for a lecturer for the amending Act to be applicable.
While the appellants contended that the qualifications would be those as
exiting when the amending Act came into force, the stand of the University
was that the qualifications would be as on the date of the initial
appointment of the appellants. The High Court held that the qualification
would be those as existing when the initial appointment under Section 13(6)
of the Principal Act were made and not when the amending Act came into
force and that is November 22, 1991. As to what were the qualifications
prescribed for lecturer on the dates when respective appointments came
through, we may refer to the relevant Statutes 11.01 of the University.
First time the qualifications and appointments of teachers in university
was prescribed on June 25, 1978. The statute was amended in the year 1980
and subsequently as under :
“QUALIFICATIONS AND APPOINTMENT OF TEACHERS IN THE UNIVERSITY
11.01 (i) In the case of the Faculties of Arts, Commerce and Science, the
following shall be the minimum qualifications for the post of a Lecturer in
the University, namely-
(a) a doctorate in the subject of study concerned or a published work of a
high standard in that subject; and
(b) consistently good academic record (that is to say, the overall record
of all assessments throughout the academic career of a candidate), with
first class or high second class (that is to say, with an aggregate of more
than 54 per cent marks) Master’s degree in the subject concerned or
equivalent degree of a foreign University in such subject.
(2) Where the Selection Committee is of opinion that the research work of
a candidate, as evidenced either by his thesis or by his published work, is
of a very high standard, it may relax any of the requirements specified in
sub-clause (b) of Clause (1).
(3) If a candidate possessing a qualification prescribed in sub-clause (a)
of Clause (1) is not available or is not considered suitable a person
possessing a consistently good academic record (due weightage being given
to M. Phil, or equivalent degree or research work of quality) may be
appointed on the condition that he will attain the prescribed qualification
(namely doctorate or published work as aforesaid) within five years from
the date of his appointment :
Provided that where the teacher so appointed fails to attain the prescribed
qualification within the said period of five years, he shall not be
entitled to yearly increments after such period, until he attains such
qualifications.
(4)…….
11.01 (l)(b) : Consistently good academic record with first or high second
class Master’s degree or an equivalent degree of a foreign University in a
relevant subject.”
Sub-clause (a) of Clause (7) of Statute 11.01 provided that marks above the
mid-point between the minimum percentage of marks fixed by the University
for award of first and second divisions are said to be high second class
marks. In exercise of power under Section (1) read with Section 15 of U.P.
State University Act, 1973, read with Section 21 of the Uttar Pradesh
General Clauses Act, the Governor of Uttar Pradesh, amended the first
Statute of the University called the 25th Amendment. This was made on March
25, 1989. For existing Statute 11.01 the following was substituted.
” 11.01 (1) in the case of Faculty of Arts (except the Departments of
Music, Drawing and Painting), and the faculties of Commerce and Science the
minimum qualifications for the post of a Lecturer in the University shall
be Master’s degree or an equivalent Degree or a foreign University in the
relevant subject with at least 55 per cent marks or its equivalent grade
and consistently good academic record.
(2) In the case of Faculty of Education, the minimum qualifications for the
post of a Lecturer in the University shall be Master’s degree or an
equivalent degree of a foreign University in Education (that is an M. Ed.
degree) with at least 55 per cent marks or its equivalent grade and
consistently good academic record.
(3)………….
(4)…………..
(5) For the purpose of this Statute :-
(a) A candidate (other than a candidate for Lecturership in the Faculties
of Education and Law) having obtained either 55 per cent marks in
Bachelor’s degree examination and second class in Intermediate examination
or 50 per cent marks in each of the two examinations separately is said to
have consistently good academic record;
(b) A candidate for Lecturership in the Faculty of Education having
obtained either 55 per cent marks in B.Ed. degree examination and second
class in any other Bachelor’s degree examination or 50 per cent marks in
each of the two examinations separately, is said to have consistently good
academic record:
(c)………………
(6) For appointment to the post of Lecturer only those candidates shall be
eligible who, besides fulfilling the minimum academic qualifications
prescribed for the post of Lecturer, have qualified in a comprehensive
test, if any, to be conducted as per scheme of University Grants
Commission.”
This Statute 11.01 was further amended on 31.12.1990 which is known as 26th
Amendment. In sub-clause (6) of the First Statute of 1978 as amended in
March, 1989, following proviso was inserted :
“Provided that a candidate:-
(1) Who has passed University Grants Commission or Council of Scientific
and Industrial Research or Junior (Research Fellowship Examination; (or).
(2) Who has already been awarded Ph. D. or M. Phil Degree; or
(3) Who will be awarded M. Phil degree upto December, 1990 or Ph. D. degree
upto December, 1992 shall not be required to qualify in such a
comprehensive test. ”
Thus, the effect of the amending Act amending the Principal Act and by
insertion of clause (c) to sub-section (3) of Section 31 would be that any
lecturer who was appointed without reference to the Selection Committee
under sub-section (6) of Section 13 would be given substantive appointment
on the conditions that (i) a substantive vacancy was available on November
22, 1991; (2) his appointment was on or before June 30, 1991 and was
serving as such on November 22, 1991 continuously since his initial
appointment; (3) he continued to possess qualification as prescribed under
relevant provisions of the statutes at the time of initial appointment on
November 22, 1991; and that (4) he has been found suitable for regular
appointment by the Executive Council of the University.
It will also be seen that before March 1989 for appointment as a lecturer,
it was necessary that a person should possess a Doctorate degree in the
subject and consistently have good academic record. However, before this
date if no candidate having Doctorate degree was available but the
Selection Committee was of the opinion that the research and thesis work
published by a candidate was of a very high standard it may relax any such
requirement of possessing a Doctorate degree. After May 25, 1989 entire
statute 11.01 was substituted and now a candidate must possess good
academic record that is he should have obtained either 55 per cent marks in
Bachelor Degree Examination, and Second Class in Intermediate Examination
or 50 per cent marks in each of the two examinations separately subject of
course his possessing consistently good academic record. Apart from
possessing good academic record under sub-section (6) it is necessary for a
candidate to have passed the qualifying comprehensive test conducted by the
University Grants Commission. But then he is exempted from that test if he
had already been awarded Ph.D. and M.Phil degree or who would be awarded
M.Phil degree upto December 1990 or Ph.D. degree upto December 1992.
In University of Delhi v. Raj Singh & Ors., [1994] Supp. 3 SCC 516, the
question before this Court was if the University Grants Commission
(Qualifications Required of a person to be Appointed to the Teaching Staff
of a University and Institutions affiliated to it) Regulations, 1991 were
valid and mandatory and if so was the Delhi University obliged under law to
comply therewith. This Court gave the answer in affirmative. It referred to
Entries 63 and 66 of List I in the Seventh Schedule of the Constitution of
India and to the provisions of the University Grants Commission Act, 1956
vis-a-vis Delhi University Act, 1922. The University Grants Commission Act
was enacted under the provisions of Entry 6 of List I of the Seventh
Schedule. It entitled Parliament to legislate in respect of “coordination
and determination of standards in institutions for higher education or
research and scientific and technical institutions.” This Court observed
that Entry 66 of List I give power to the Union to see that the required
standard of higher education in the country was maintained. It was the
exclusive responsibility of the Central Government to coordinate and
determine the standards of higher education. The Court then observed that
such powers would comprehend the power to require those who possess the
educational qualifications required for holding the post of lecturer in
Universities and colleges to appear for a written test, the passing of
which would establish that they possess the minimal proficiency for holding
such post. That, however, would not mean the University cannot prescribe
qualifications over and above those prescribed by the University Grants
Commission.
In University Grants Commission v. Sadhana Chaudhary & Ors., [1996] 10 SCC
536, this Court considered the recommendations of the University Grants
Commission made in 1991 prescribing minimum qualification for the post of
Lecturers in the Universities and Colleges which were amended by Circulars
dated 10.2.1993 and 15.6.1993. The recommendations in the Regulations of
1991 and the two circulars as quoted in the judgment are as under :
“Good academic record with at least 55% marks or an equivalent grade at
Master’s level in the relevant subject from an Indian University or an
equivalent degree from a foreign University. Candidates besides fulfilling
the above qualifications should have cleared the eligibility test for
lecturers conducted by UGC, CSIR or similar test accredited by the UGC.
By circular dated 10.2.1993 the UGC granted exemption from appearing in the
eligibility test to the following categories:
1. All candidates who have passed UGC/CSIR J.R.F. Examination.
2. All candidates who have already been awarded Ph.D degree.
3. All candidates who have already been awarded M.Phil, degree up to
31.3.1991.
4. All candidates who will submit their Ph.D thesis up to 31.12.1993.
By Circular dated 15.6.1993 in respect of candidates falling in category
(3) exemption from appearing in the eligibility test was extended to
candidates who had been awarded M.Phil, degree up to 31.12.1992.
By a notification dated 21.6.1995, the 1991 Regulations have been amended
and the following proviso has been added below the requirement regarding
clearing the eligibility test for appointment on the post of Lecturer :
“Provided that candidates who have submitted Ph. D. thesis or passed the
M.Phil examination by 31.12.1993 are exempted from the eligibility test for
lecturers conducted by UGC, CISR or similar test accredited by the UGC.”
Since the Executive Committee of the University made recommendations in
1992 Statute 11.01 as amended by 26th amendment would apply in the cases of
the appellants.
By letter dated July 5/17.6.1992 University informed the appellants that
they were not found fit to be regularised on the post of lecturers. The
letter is to the following effect :
“Sub: Regularisation of ad hoc lecturers Sir,
As per the conditions mentioned in Ordinance No. 44 dated 22/ 11/91 the
matter regarding the regularisation of all the ad hoc lecturers was put for
consideration before the Executive Council on 22/4/1992. The Executive
Council after having considered your application for regularisation
seriously, did not find you fit to be regularised on the post of lecturer.
We regret for the same. For your information you could not qualify the
following conditions :
Recommendation : No Reason : Not qualified Were not working on 30/6/1991. Sd/Dy. Registrar (Admn.) For Registrar."
It has been rightly held by the High Court that artificial break in service
cannot be taken into account while considering the question that any of the
appellants was not working continuously as on November 22, 1991 from the
date of his initial appointment on or before June 30, 1991. High Court has
also held that opportunity was given to the appellants when the Executive
Committee considered their cases. Taking into account the relevant statutes
of the University, the High Court was of the view that if any one of the
appellants had already been awarded Ph. D. or M. Phil, degree or will be
awarded M. Phil degree upto December 1990 or Ph. D. degree upto December
1992 he would be qualified for the post of lecturer. Thereafter the High
Court addressed itself to the question if the appellants who had been given
short term ad hoc appointments were entitled to substantive appointments.
It noted that procedure for making appointments were that the vacancy had
to be advertised in accordance with sub-section (1) of Section 31 of the
Act and in absence of the advertisement there would be violation of Article
16 of the Constitution and any such appointments would be rendered illegal.
The Executive Committee could make appointment only on the basis of the
recommendations made by the Selection Committee. The High Court then
observed as under :
“All the adhoc lecturers whose cases were considered by the Assessment
Committee on March 7, 1992 and by the Executive Council on April 22, 1992
were given ad hoc appointments without following the rules namely without
advertisement of vacancy and without having faced selection committee. They
are claiming the benefit of U.P. Act No. 1 of 1992 in order to get a
substantive appointment and as a corollary they must satisfy the
requirement of the said Act and if the requirement of the Act is that they
should possess prescribed qualification for regular appointment under the
relevant Statutes, they must do so. The fact that at some earlier stage the
University made an advertisement in which wrong or lesser qualification was
mentioned is wholly irrelevant and that advertisement cannot override the
requirement of the amending Act. It has been consistently held that a
person not possessing prescribed qualification cannot be appointed in a
University or in an affiliated college and if such a person is appointed,
the appointment itself becomes illegal.”
High Court then concluded that it was clearly of the opinion that in order
to get the benefit of the Act 1 of 1992 amending the Principal Act the ad
hoc lecturers must possess the qualifications required for regular
appointment under the provisions of the relevant statutes as laid down in
sub-section (ii) of clause (c) of Section 31 of the Act. High Court said
that the qualifications prescribed prior to the amendment would not get
revived. High Court did not rely on Single Judge decision of that court in
Writ Petition No. 25255 of 1992 Dr. Siya Ram Singh v. Director Higher
Education, where benefit of regularisation had been given to ad hoc
lecturers of the affiliated colleges under Ordinance No. 43 of 1991 which
was also promulgated on November 22, 1991 with similar provisions as in the
present case. In that case the initial ad hoc appointment itself having
been held to be illegal, regularisation had been refused by the
authorities. It was also found that the petitioners therein did not possess
the prescribed qualifications. As to the reasoning of the learned single
Judge, the High Court not only distinguished that judgment but rather
disapproved the same. It also noticed that in the case before the learned
Single Judge the question was appointment to the affiliated colleges of the
University while in the present case appointment was in University itself
which was governed by separate enactment. The High Court then examined the
individual cases of the appellants and found that they did not possess the
requisite qualifications and further that their cases had been considered
by the Executive Committee who did not find them suitable to be given
regular appointments. The High Court, therefore, by judgment dated August
20, 1993 dismissed the writ petitions holding that these lacked merit and
vacated the interim orders passed in favour of the appellants. When the
matter came to this Court in special leave petitions while granting leave
stay was declined.
Keeping the aforesaid parameters in view, we may now consider the cases of
each of the appellants.
Dr. L.P. Lakhera as found by the High Court was appointed as a part-time
lecturer on 16.8.1990 for two months. His appointment, however, continued
upto 30.4.91. He was given fresh appointment on 14.10.91. He was,
therefore, not working on 30.6.91. It could not be said that break in
service from 30.4.91 to 14.10.91 for almost six months was an artificial
break in his service not to be taken into account. In Intermediate and B.A.
examinations he got 45.3% and 45.5% marks respectively. His claim that he
did work from 1.4.91 to 13.10.91 without pay due to financial constraints
in the Univsersity is not acceptable. Moreover no vacancy in the post of
lecturer in Geography was available on 22.11.91. His claim for substantive
appointment could not be recommended. His having obtained a Degree of
Doctor of Philosophy in 1990 did not advance his case for his getting
substantive appointment.
Shri R.S. Negi was appointed on 2.11.91 as found by the High Court and he
was not working as such on 30.6.91. In his affidavit filed in these
proceedings he submitted a certificate of the Registrar of the University
stating that R.S. Negi had submitted his thesis on 2.11.94 and he was
awarded degree of Doctor of Philosophy in Geology in the year 1996. At the
relevant time no post of lecturer in his subject was available. Negi,
therefore, could not fulfil that qualifications prescribed and was not
recommended for substantive appointment.
Dr. M.S. Sati was appointed as part-time lecturer on 8.11. 1990 for two
months and his appointment came to an end on 8.1.91. He was given fresh
appointment as part-time lecturer for two months on 14.2.91 which ended on
14.4.91. He was thereafter appointed on regular basis for six months on
11.9.91. In his affidavit filed in this Court Dr. Sati submitted a
certificate from the Registrar of the University certifying that he had
submitted his thesis in Geology on 3.9.94. He was awarded degree of Doctor
of Philosophy in 1996. Assuming that there was an artificial break in his
service Dr. Sati had neither qualified in the comprehensive test of the UGC
nor was he awarded M.Phil degree in December 1990 or Ph. D. degree in
December 1992. He obtained 45% marks in the Intermediate examination and
60% in B. Sc. examination. Since he did not fulfil the qualifications
prescribed his name was not recommended for substantive appointment.
Shri Ajay Pal Singh was appointed as lecturer on 2.11.91. Earlier he had
been appointed on 7.9.88 for a period of two months. In his affidavit filed
in this Court he stated that he submitted his thesis for D. Phil in 1993
and was awarded D. Phil degree in 1993. In support of his claim that he had
submitted his thesis he has not filed any certificate from the Registrar of
the University. He obtained 48% marks in Intermediate and 52.8% in B.A.
examination. No post in his subject was also available on 2.11.91. Since
Sri Singh did not fulfil the certeria for substantive appointment his case
was not recommended.
Dr. Surendra Joshi was appointed as part-time lecturer on 13.8.90 for two
months, which appointment continued upto 25.7.91. He was given fresh
appointment on 15.6.91 which continued until 25.7.91. After about nearly
one and a half months Dr. Joshi was again appointed on 11.9.91 and that
appointment continued upto 11.3.92. In his case it could be said that he
was working continuously from 30.6.91 till the date of the commencement of
the Ordinance. In Bachelor’s degree Dr. Joshi passed in third division
though Intermediate in the second division. He obtained degree in D. Phil
in 1988. As he did not fulfil the criteria he was not recommended for
substantive appointment by the Executive Committee.
We are therefore of the view that the High Court was right in coming to the
conclusion that the appellants did not satisfy the requisite qualifications
or the criteria as laid for their appointment as lecturers in the
University. We do not find any infirmity in the orders of the Executive
Committee of the University not recommending the appellants for substantive
appointment as lecturers in the University. These appeals, therefore, fail
and are dismissed.