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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 ..... highly qualified Assistant Professors to teach in UGC Institutions – Decision in the case of Trimbak Damodhar Rajpurkar v. Assaram Hiraman Patil [1961 (11) TMI 65 - SUPREME COURT] followed – Decided against Appellant. - CIVIL APPEAL NO. __OF 2015, ARISING OUT OF SLP (CIVIL) NOS.36023-36032 OF 2010 - - - Dated:- 16-3-2015 - T.S. Thakur R.F. Nariman, JJ. JUDGMENT [ARISING OUT OF SLP (C) NO.10247 OF 2011] [ARISING OUT OF SLP (C) NO.14985 OF 2011] [ARISING OUT OF SLP (C) NO.34196 OF 2012] [ARISING OUT OF SLP (C) NOS.36362-36364 OF 2012] [ARISING OUT OF SLP (C) NOS.38991-38992 OF 2012] [ARISING OUT OF SLP (C) NO.1529 OF 2013] [ARISING OUT OF SLP (C) NO.1817 OF 2013] [ARISING OUT OF SLP (C) NO.4619 OF 2013] [ARISING OUT OF SLP (C) NO.4925 OF 2013] [ARISING OUT OF SLP (C) NO.17939 OF 2013] CONTEMPT PETITION (CIVIL) NOS.286-287 OF 2014 IN SLP (C) NOS.3054-3055 OF 2014 [ARISING OUT OF SLP (C) NOS.3054-3055 OF 2014] [ARISING OUT OF SLP (C) NO.3753 OF 2014] R.F.Nariman, J. 1. Leave granted in all the special leave petitions. 2. A large number of appeals are before us in which the judgments of four High Courts are assailed. The High Court of Delhi in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government. (2) If any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final. 26. Power to make regulations.-(1) The Commission may [, by notification in the Official Gazette,] make regulations consistent with this Act and the rules made thereunder,- (a) regulating the meetings of the Commission and the procedure for conducting business thereat; (b) regulating the manner in which and the purposes for which persons may be associated with the Commission under Section 9; (c) specifying the terms and conditions of service of the employees appointed by the Commission; (d) specifying the institutions or class of institutions which may be recognised by the Commission under clause (f) of Section 2; (e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. This continued till 2002, the only change made being that the exemption continued qua Ph.D. thesis holders for dates that were extended till 31st December, 2002. This state of affairs continued until 2008 when the Mungekar Committee submitted its final report recommending that NET should be made a compulsory requirement for appointment of Lecturer in addition to the candidate possessing M.Phil. or Ph.D degrees. On 12th November, 2008, the Department of Higher Education, Ministry of Human Resources Development, Government of India, issued a directive under Section 22 of the UGC Act providing inter alia as under:- UGC shall, for serving the national purpose of maintaining standards of higher education, frame appropriate regulations within a period of thirty days from the date of issue of this order prescribing that qualifying in NET/SLET shall generally be compulsory for all persons appointed to teaching positions of Lecturer/Assistant Professor in Higher Education, and only persons who possess degree of Ph.D. after having been enrolled/ admitted to a programme notified by the Commission, after it has satisfied itself on the basis of expert opinion, as to be or have always bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of issue of this direction; and (iii) That the decision taken by the UGC in it's 468th meeting held on 23rd February, 2010 vide agenda item no. 6.04 and 6.05 to grant specific exemptions from the applicability of NET shall not be implemented as being contrary to national policy. The above said directions shall be implemented by the UGC forthwith. 7. Pursuant to this directive, on 30th June, 2010, the UGC framed Regulations of 2010, para 3.3.1 of which states: 3.3.1. NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions. Provided however, that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor equivalent positions in Universities/Colleges/ Institutions. 8. By two resolutions dated 12th August, 2010 and 27th September, 2010, the UGC opined that since the regulations are prospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposition that their legitimate expectation in the matter of appointment on the post of Lecturer had been done away with. 11. On the other hand, learned counsel for the Union of India and the UGC stressed the fact that under Section 26 regulations have to be made consistently with the Act and Section 20 is very much part of the Act. Therefore, if directions on questions of policy are made by the Central Government, regulations must necessarily be subordinate to such directions. It was also pointed out that if a question arises as to whether a subject matter is a question of policy relating to national purposes, the decision of the Central Government shall be final. They then relied upon Udai Singh Dagar v. Union of India (2007) 10 SCC 306, for the proposition that a person will have the right to enter a profession only if he holds the requisite qualification and the holding of such qualification would be prospective if it is a qualification which is laid down any time before his entry into a profession. 12. It is clear that Section 26 enables the Commission to make regulations only if they are consistent with the UGC Act. This necessarily means that such regulations must con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater for the simple reason that it ignores the opening lines of Section 26(1) which states that the Commission can only make regulations consistent with the Act, which brings in the Central Government s power under Section 20 of the Act, a power that is independent of sub-section (2) of Section 26. A regulation may not require the previous approval of the Central Government and may yet have to be in conformity with a direction issued under Section 20 of the Act. In fact, even where a regulation can only be made with the previous approval of the Central Government, the Central Government would have a role to play both before and after the regulation is made. In the first case, it would accord its previous approval to the regulation. Once the regulation becomes law, it may issue directions under Section 20 pursuant to which the very same regulation may have to be modified or done away with to conform to such direction. It is clear, therefore, that Section 26(2) would not stand in the way of the directions issued in the present case by the Central Government to the Commission. 14. The other interesting argument made is that such regulations should not be given retrospective effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date as from which the new law, as enacted by the Act, is to be taken to have been the law. These observations were made in dealing with the question as to the retrospective construction of Section 3 of the Conveyancing and Law of Property Act, 1892 (55 56 Vict. c. 13). In substance Section 3 provided that in all leases containing a covenant, condition or agreement against assigning, underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition or agreement shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent. It was held that the provisions of the said section applied to all leases whether executed before or after the commencement of the Act; and, according to Buckley, L.J., this construction did not make the Act ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail. 16. One of the learned counsel for the petitioners argued, based on the language of the direction of the Central Government dated 12th November, 2008 that all that the Government wanted the UGC to do was to generally prescribe NET as a qualification. But this did not mean that UGC had to prescribe this qualification without providing for any exemption. We are unable to accede to this argument for the simple reason that the word generally precedes the word compulsory and it is clear that the language of the direction has been followed both in letter and in spirit by the UGC regulations of 2009 and 2010. 17. The arguments based on Article 14 equally have to be rejected. It is clear that the object of the directions of the Central Government read with the UGC regulations of 2009/2010 are to maintain excellence in standards of higher education. Keeping this object in mind, a minimum eligibility condition of passing the national el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited.(Vide Hindustan Development Corpn. [(1993) 3 SCC 499] 20. In University Grants Commission v. Sadhana Chaudhary (1996) 10 SCC, 536, it is true that in paragraph 22, some of the very appellants before us are referred to as having a legitimate expectation in the matter of appointment to the post of Lecturer in Universities/Colleges, but that case would have no direct application here. There a challenge was made to exemptions granted at that time to Ph.D. holders and M. Phil. degree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government. The Central Government in the matters of laying down minimum qualifications for appointment of teachers in the University, does not possess any supervisory powers, to annul the resolutions of UGC. 4. The Ph.D holders, who were awarded Ph.D degrees prior to 31.12.2009, cannot be said to have legitimate expectation maturing into any right to be considered for appointment on teaching posts in the University, without obtaining the NET/SLET/SET qualifications, unless the UGC has provided for any exemptions. 5. The resolution on agenda item no. 6.04 and 6.05 in the 468th meeting of the UGC held on 23.2.2010, and the resolution of UGC in its 471st meeting on agenda item no. 2.08 dated 12.8.2010 recommending the 3rd Amendments to the Regulations of 2009 to be prospective in nature, is binding on the Universities including the University of Allahabad. 6. The petitioners were awarded Ph.D degrees in the year 2009 and in the year 2003 respectively prior to enforcement of the 3rd Amendment in the regulations, which came into force on 31.12.2009, and thus they are eligible, even if they are not NET/SLET/SET qualified, if they have been awarded Ph.D degree with any six con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch can either follow it or refer such judgment to the Chief Justice to constitute a Full Bench if it differs with it. We do not appreciate the manner in which this subsequent judgment, (even though it has reached the right result) has dealt with an earlier binding Division Bench judgment of the same High Court. In fact, as was pointed out to us by learned counsel for the appellants, the distinction made in paragraph 20 between the facts of the earlier judgment and the facts in the later judgment is not a distinction at all. Just as in the 2012 judgment Ph.D. degrees had been awarded prior to 2009, even in the 2014 judgment Ph.D. degrees with which that judgment was concerned were also granted prior to 2009. There is, therefore, no distinction between the facts of the two cases. What is even more distressing is that only sub para 4 of the conclusion in the 2012 judgment is set out without any of the other sub paragraphs of Paragraph 104 extracted above to arrive at a result which is the exact opposite of the earlier judgment. This judgment is also set aside only for the reason that it did not follow an earlier binding judgment. This will, however, not impact the fact that the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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