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TMI Blog2015 (8) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 6th December, 2010 was faced with the constitutional validity of the University Grants Commission Regulations (Minimum Qualifications Required for the Appointment And Career Advancement of Teachers in Universities and Institutions affiliated to it) (the third Amendment) Regulation 2009 under which NET/SLET is to be the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions. The challenge was repelled saying that the Regulations do not violate Article 14 and are, in fact, prospective inasmuch as they apply only to appointments made after the date of the notification and do not apply to appointments made prior to that date. Along the lines of the Delhi High Court, the Madras and Rajasthan High Courts have also repelled challenges to the aforesaid regulations vide their judgments dated 6th December, 2010 and 13th September, 2012. On the other hand, the Allahabad High Court in a judgment dated 6th April, 2012 has found that the said regulations were issued pursuant to directions of the Central Government which themselves were issued outside the powers conferred by the UGC Act and, hence, the eligibility conditions laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in which he is expected to give instruction; (f) defining the minimum standards of instruction for the grant of any degree by any University; (g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities. [(h) regulating the establishment of institutions referred to in clause (ccc) of Section 12 and other matters relating to such institutions; (i) specifying the matters in respect of which fees may be charged, and scales of fees in accordance with which fees may be charged, by a college under sub-section (2) of Section 12-A; (j) specifying the manner in which an inquiry may be conducted under sub-section (4) of Section 12-A.] (2) No regulation shall be made under clause (a) or clause (b) or clause (c) or clause (d) [or clause (h) or clause (i) or clause (j)] of sub-section (1) except with the previous approval of the Central Government. (3) The power to make regulations conferred by this section [except clause (i) and clause (j) of subsection (1)] shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f standardization of Ph.D. prescribed by it, and also that the degree of Ph.D. was awarded by a University or Institution Deemed to be University notified by the UGC as having already complied with the procedure prescribed under the regulations framed by the Commission for the purpose." 5. In pursuance of the said directive, the UGC promulgated the impugned Regulations of 2009, the 3rd Amendment of which provides as follows:- "NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/ Institutions. Provided, however, that candidates, who are or have been awarded Ph.D. Degree in compliance of the "University Grants Commission (minimum standards and procedure for award of Ph.D. Degree), Regulation 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent position in Universities/Colleges/Institutions." The proviso referred to a number of new conditions relating to the maximum number of Ph.D. students at any given point of time, stringent admission criteria for a Ph.D. degree, research papers being published, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before 10th July, 2009 and all persons who obtained the Ph.D. degree on or before 31st December, 2009 and had registered themselves for the Ph.D. before this date, but are awarded such degree subsequently shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. 9. The Central Government, however, by letter dated 3rd November, 2010 informed the UGC that they were unable to agree with the decision of the Commission and stated that consequently a candidate seeking appointment to the post of Lecturer/Assistant Professor must fulfill the minimum qualifications prescribed by the UGC including the minimum eligibility condition of having passed the NET test. 10. Learned counsel assailing the Delhi, Madras and Rajasthan High Court judgments argued that Section 26(3) expressly entitles a regulation to be prospective but so as not to prejudicially affect the interests of any person to whom such regulation may be applicable. They, therefore, argued that both under Article 14 as well as this sub-section, since all M.Phil. and Ph.D. holders had been repeatedly assured that they would be exempt from passing the NET exam if they were such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government is given the power to give directions on questions of policy relating to national purposes which shall guide the Commission in the discharge of its functions under the Act. It is clear, therefore, that both the directions of 12th November, 2008 and 30th March, 2010 are directions made pertaining to questions of policy relating to national purposes inasmuch as, being based on the Mungekar Committee Report, the Central Government felt that a common uniform nationwide test should be a minimum eligibility condition for recruitment for the appointment of Lecturer/Assistant Professors in Universities/Colleges/Institutions. This is for the obvious reason that M. Phil. degrees or Ph.D. degrees are granted by different Universities/Institutions having differing standards of excellence. It is quite possible to conceive of M.Phil/ Ph.D. degrees being granted by several Universities which did not have stringent standards of excellence. Considering as a matter of policy that the appointment of Lecturers/ Assistant Professors in all institutions governed by the UGC Act (which are institutions all over the country), the need was felt to have in addition a national entrance test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulation may be applicable. In order to appreciate this contention, it is necessary to distinguish between an existing right and a vested right. This distinction was made with great felicity in Trimbak Damodhar Rajpurkar v. Assaram Hiraman Patil, 1962 Suppl. 1 SCR 700. In that case a question arose as to whether an amendment made to Section 5 of the Bombay Tenancy and Agricultural Lands Amendment Act could be said to be retrospective because its operation took within its sweep existing rights. A bench of five Hon'ble Judges of this Court held that Section 5 had no retrospective operation. This Court held: "Besides, it is necessary to bear in mind that the right of the appellant to eject the respondents would arise only on the termination of the tenancy, and in the present case it would have been available to him on March 31, 1953 if the statutory provision had not in the meanwhile extended the life of the tenancy. It is true that the appellant gave notice to the respondents on March 11, 1952 as he was then no doubt entitled to do; but his right as a landlord to obtain possession did not accrue merely on the giving of the notice, it accrued in his favour on the date when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts under all leases whether executed before or after the date of the Act. The position in regard to the operation of Section 5(1) of the amending Act with which we are concerned appears to us to be substantially similar. A similar question had been raised for the decision of this Court in Jivabhai Purshottam v. Chhagan Karson [ Civil Appeal No 153 of 1958 decided on 27-3-1961] in regard to the retrospective operation of Section 34(2)(a) of the said amending Act 33 of 1952 and this Court has approved of the decision of the Full Bench of the Bombay High Court on that point in Durlabbha Fakirbhai v. Jhaverbhai Bhikabhai [ (1956) 58 BLR 85] . It was held in Durlabbhai case [ (1956) 58 BLR 85] that the relevant provision of the amending Act would apply to all proceedings where the period of notice had expired after the amending Act had come into force and that the effect of the amending Act was no more than this that it imposed a new and additional limitation on the right of the landlord to obtain possession from his tenant. It was observed in that judgment that "a notice under Section 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn by the UGC in the past, but the Central Government now as a matter of policy feels that any exemption would compromise the excellence of teaching standards in Universities/Colleges/ Institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this - in fact it is a core function of the UGC to see that such standards do not get diluted. 18. The doctrine of legitimate expectation has been dealt with in two judgments of this Court as follows: In Union of India v. International Trading Company (2003) 5 SCC 437, it was held: "23. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be achieved at that point of time, being based on an intelligible differentia. An Article 14 challenge to the said exemption was, therefore, repelled. Even assuming that the said judgment would continue to apply even after the 2009 Regulations, a legitimate expectation must always yield to the larger public interest. The larger public interest in the present case is nothing less than having highly qualified Assistant Professors to teach in UGC Institutions. Even if, therefore, the private appellants before us had a legitimate expectation that given the fact that the UGC granted them an exemption from the NET and continued to state that such exemption should continue to be granted even after the Government direction of 12th November, 2008 would have to yield to the larger public interest of selection of the most meritorious among candidates to teach in Institutions governed by the UGC Act. 21. The Allahabad High Court in its judgment dated 6th April, 2012 has held as follows: "104. CONCLUSIONS: 1. The Central Government, in exercise of its powers under Section 20 (1) of UGC Act, 1956, does not possess powers and authority to set aside or annul the recommendations of the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners are held eligible for consideration for appointment as Lecturer for guest faculty in the Department of Sanskrit of the University, provided they satisfy any of the six tests out of eleven, laid down by the UGC, and which are made essential for award of Ph.D degree under the 3rd Amendment of the Regulations of 2009. It will be open to the University to consider from the material produced by the petitioners, that they satisfy six out of eleven tests recommended by the University Grants Commission for award of their Ph.D." 22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government. 23. The Allahabad High Court adverted to an expert committee under the Chairmanship of Professor S.P. Thyagarajan which laid down that if six out of eleven criteri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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