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TMI Blog2015 (3) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of performing its functions under the UGC Act (see Section 12) like defining the qualifications and standard that should ordinarily be required of any person to be appointed in the Universities [see Section 26(1)(e)(g)] UGC is empowered to frame Regulations - It is only when both the Houses of the Parliament approve the Regulation, the same can be given effect. Thus, the U.G.C. Regulations though a subordinate legislation has binding effect on the Universities to which it applies; and consequence of failure of the University to comply with the recommendations of the Commission, the UGC may withhold the grants to the university made out of the Fund of the Commission. Chapter VI of the University Act deals with Statutes, Ordinances and Regulations. Section 30 stipulates the matters which can be provided under Statutes. This includes the constitution or reconstitution, powers and duties of the authorities of the University. Section 32 deals with Ordinances which may provide for all or any of the matters mentioned therein including the qualifications and emoluments of teachers of the University - The word statutes with respect to University means law of the University. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appearing Parties: K.K. Venugopal, Rakesh Dwivedi, Guru Krishnakumar, R. Venkataramani, Sr. Advs., Subramonium Prasad, AAG, Gopal Sankaranarayanan, Prerna Priyadarshini, Pooja Dhar, Vikramaditya, Megha Agarwal, S. Janani, M. Yogesh Kanna, V. Shyamohan, Chaitali Y. Dhinoja, Abhishek Kumar, G. Balaji, Athira Nair, Mahalakshmi Pavani, Advs. for Mahalakshmi Balaji Co., Satya Mitra Garg, Manju Aggarwal, Neelam Singh and Geetha Kovilan, Advs. JUDGMENT S.J. Mukhopadhaya, J. 1. These appeals have been preferred by the Appellants against a common judgment and order dated 26th June, 2014 passed by the Division Bench of the Madras High Court, Madurai Bench in Writ Petition (MD) No. 11350 of 2012 and Writ Petition (MD) No. 3318 of 2013. The aforesaid writ petitions were preferred by K.V. Jeyaraj and I. Ismail Respondents/writ Petitioners praying for issuance of a writ of quo warranto directing the Appellant - Dr. Kalyani Mathivanan to show cause under what authority she continues to hold the office of the Vice-Chancellor, Madurai Kamaraj University. 2. By the impugned judgment the High Court held that the Appellant-Dr. Kalyani Mathivanan did not satisfy the el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and order allowed the writ petitions and set aside the appointment order of Appellant-Dr. Kalyani Mathivanan as Vice-Chancellor. 5. The Appellant-Dr. Kalyani Mathivanan on notice appeared before the High Court and brought to the notice of the Court the following facts: She was appointed as Assistant Professor in Ethiraj College on 16th January, 1981. The Government of Tamil Nadu on 5th December, 1983 redesignated the post of Assistant Professor as Lecturer and Professor as Lecturer [Senior Scale/Selection Grade]. She was promoted as Lecturer (Senior Scale) in Ethiraj College on 22nd August, 1991. Since, 1995, the Appellant has been a recognized Guide for M. Phil. candidates in the University of Madras. The Appellant was promoted as Lecturer (Selection Grade)/Reader on 7th May, 1998 and since then she has been a Recognized Guide for Ph.D. candidate in the University of Madras. In 2008, She was promoted as Head of the English Department, Ethiraj College. On 9th September, 2009, the Department of Higher Education, Government of Tamil Nadu based on the report of the Official Committee constituted to examine the recommendations of the G.K. Chadha Committee, passed an order that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsities in comparison to those adopted by some foreign Universities. 45. This paper indicates that as per the reports of the Radhakrishnan Commission (1948: 422-23), Kothari Commission (1964-1966: 333-35), Gnanam Committee (1990: 27-30) and Ramlal Parikh Committee (1993: 15-17), the Vice-Chancellors have an important role in maintaining the quality and relevance of universities. The highlights of some of the committees were extracted in the said paper by the learned authors as follows: Generally the Vice-Chancellor should be a distinguished educationist or eminent scholar in any of the disciplines or professions, with a high standing in his/her field and adequate administrative experience. We are not generally in favour of appointment of persons who have retired from other fields. An exception to this general recommendation should be made only in the case of very outstanding persons whose association with the universities would be desirable from every point of view and should not be made an excuse for accommodating' or 'rewarding individuals who do not fulfill the conditions laid down. A Vice-Chancellor is one who stands for the commitment of the University to scholar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic institution. The stated mission of the University is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence. The VC must be of exceptional caliber with academic credibility, clear strategic vision, and outstanding leadership qualities. He/she should have strong management skills and senior level experience gained in a complex institution and the ability to bring them to bear in a democratic, self governing University. The ability to promote the University in a regional, national and international context, and to increase the financial resources available to the University, should be key, particularly in order to realise the full potential of the University. 9. By the impugned judgment, the Madras High Court differed with the finding of the Bombay High Court in a similar case, Suresh Patilkhede of Thane v. Chancellor, University of Maharashtra in PIL (L) No. 80/2011, 2012 (6) ALLMR 336. The Bombay High Court by the said judgment held that Vice-Chancellor in his said capacity cannot be considered as a member of the academic or teaching staff of the University and also held that the UGC Regulations, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancellor is a part of academia i.e. teaching staff and the UGC Regulations, 2010 will prevail over the State enactment i.e. University Act and the Statutes framed thereunder in the event of a conflict. 13. The High Court in the impugned judgment discussed the background history of appointment of Vice-Chancellor in India and observed as follows: 43. It is true that when the seeds of Western education were shown in this country about 150 years ago, men of eminence from various walks of life were appointed as Vice-Chancellors. Several Judges of this Court have adorned the post of Vice-Chancellor of various Universities including the Madras University itself. But apart from being great (and rare) Judges, those men were also distinguished academicians who excelled in various fields. Students of Indian History would know that Sir John George Woodraff who was a Judge of the Calcutta High Court and who retired as the Officiating Chief Justice of the same Court, collaborated with Ameer Ali in publishing the Code of Civil Procedure. He was a great Sanskrit scholar who authored books on Mantra Sastra and Tantra Sastra, After retiring as the Officiating Chief Justice, he served a Read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cademic peers. (iii) That setting an organisation's academic standards is a significant part of the function of the Vice-Chancellor and hence one should expect the standard bearer to first year that standard. (iv) That a leader, who is an established scholar, signals the institution's priorities, internally to its faculties and externally to potential new academic recruits, students, alumni, donors and the media. (v) That since scholarship cannot be viewed as a proxy for either management experience or leadership skills, an expert leader must also have expertise in areas other than scholarship. 15. Learned Counsel for parties relied on the aforesaid observation made by the High Court but we are of the view that it is not necessary to notice the background history of appointment of Vice-Chancellors or the great personalities who held such posts or the interesting Article, titled 'Why Socrates should be in the Boardroom in Research Universities', published in 2010 by Amanda H. Goodall as they are not relevant for determining the issue involved in the present case. 16. Learned Counsel for the Appellant-Dr. Kalyani Mathivanan, has taken similar pleas as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the onus is on the person appointed to show that a relevant norm, standard or criterion has been adopted. This has not been done by the Appellant. (v) No case has been canvassed that the appointment in question is otherwise based on a relevant standard or criterion, higher in quality than the UGC Regulations. No case has also been made out that on the application of such a higher criterion that the appointing authority did not find any other person considered for appointment, as suitable and fit enough to be appointed as Vice-Chancellor. 18. We have heard the learned Counsel for the parties and the issues that arise for our consideration are: (i) Whether UGC Regulations, 2010 is mandatory in nature; and (ii) Whether in the event of conflict between the University Act, Regulations framed thereunder and the UGC Regulations, 2010, the provisions of the UGC Regulations, 2010 would prevail or not; and (iii) Whether the post of Vice-Chancellor of a University is to be considered as part of teaching staff. 19. For determination of these issues, it is necessary to notice the relevant provisions of University Commission Act, 1956 (hereinafter referred to as the, 'U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;. The relevant portion of the said section is quoted below: Section 26. (1) The Commission [may, by notification in the Official Gazette, make Regulations] consistent with this Act and the rules made thereunder- (a) to (d) xxx (e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instruction; (f) xxx (g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities. 21. As per Section 28 the Rules and Regulations framed under the U.G.C. Act are required to be laid before each House of Parliament and when both the Houses agree then the Rules and Regulations can be given effect with such modification as may be made by the Parliament. Section 28 reads as below: Section 28. Every rule and every Regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Regulation No. F.3-1/2000(PS) dated 4th April, 2000, enacted the University Grants Commission (Minimum qualifications required for the appointment and career advancement of teachers in Universities and Institutions affiliated to it) Regulations, 2000 (hereinafter referred to as the UGC Regulations, 2000 ). In the said Regulation of 2000, no qualifications were prescribed for the post of 'Pro-Chancellor' or 'Vice-Chancellor'. The Government of India, Ministry of Human Resource Development Department of Higher Education, New Delhi by letter No. 1-32/2006-U.II/U.I(i) dated 31st December, 2008 communicated the Secretary, University Grants Commission, New Delhi the Scheme of revision of pay of teachers and equivalent cadres in Universities and Colleges following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission. By the said letter, the Government of India directed that there shall be only three designations in respect of teachers in Universities and Colleges, namely, Assistant Professors, Associate Professors and Professors. In the said letter revised Pay Scales, Service Conditions and Career ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to time, the University Grants Commission hereby frames the following Regulations, namely: 1. Short title, application and commencement: 1.1. These Regulations may be called the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010. 1.2. They shall apply to every university established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the university concerned under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and every institution deemed to be a university Under Section 3 of the said Act. 1.3. They shall come into force with immediate effect. Provided that in the event, any candidate becomes eligible for promotion under Career Advancement Scheme in terms of these Regulations on or after 31st December, 2008, the promotion of such a candidate shall be governed by the provisions of these Regulations. Provided further that not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of Vice-Chancellor have been mentioned. Regulation 7.4.0 relates to adoption of Regulations by the universities and State Governments. The relevant provisions of the Annexure to the UGC Regulations, 2010 are quoted hereunder: ANNEXURE UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT of THE TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE of STANDARDS IN HIGHER EDUCATION, 2010 ---------------------------------------------------------------------------- These Regulations are issued for minimum qualifications for appointment and other service conditions of University and College Teachers, Librarians, Directors of Physical Education and Sports for the maintenance of standards in higher education and revision of pay scales. 2.0.0 PAY SCALES, PAY FIXATION FORMULA AND AGE of SUPERANNUATION, ETC. 2.1.0 The revised scales of pay and other service conditions including age of superannuation in central universities and other institutions maintained and/or funded by the University Grants Commission (UGC), shall be strictly in accordance with the decision of the Central Government, Ministry of Human Resource ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing along with the panel to be submitted to the Visitor/Chancellor. In respect of State and Central Universities, the following shall be the constitution of the Search Committee. a) a nominee of the Visitor/Chancellor, who should be the Chairperson of the Committee. b) a nominee of the Chairman, University Grants Commission. c) a nominee of the Syndicate/Executive Council/Board of Management of the University. iii. The Visitor/Chancellor shall appoint the Vice-Chancellor out of the Panel of names recommended by the Search Committee. iv. The conditions of service of the Vice-Chancellor shall be prescribed in the Statutes of the Universities concerned in conformity with these Regulations. v. The term of office of the Vice-Chancellor shall form part of the service period of the incumbent concerned making him/her eligible for all service related benefits. 7.4.0 The Universities/State Governments shall modify or amend the relevant Act/Statutes of the Universities concerned within 6 months of adoption of these Regulations. 8.0. DUTY LEAVE, STUDY LEAVE, SABBATICAL LEAVE 26. Letter No. 1-32/2006-U.II/U.I(1)(i) dated 31st December, 2008 issued by the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other equivalent cadres covered under this Scheme, subject to other conditions of eligibility being satisfied, have multiple opportunities for upward movement during their career. (iv) Posts of Professors shall be created in under-graduate (UG) colleges as well as in postgraduate (PG) colleges. The number of posts of Professors in a UG College shall be equivalent to 10 percent of the number of posts-of Associate Professors in that College. There shall be as many posts of Professors in each PG College as the number of Departments in that College. No new Departments shall be created in UG or PG Colleges without prior approval of the UGC. (v) Up to 10% of the posts of Professors in universities shall be in the higher Academic Grade Pay of ₹ 12,000 with eligibility conditions to be prescribed by the UGC. (vi) National Eligibility Test (NET) shall be compulsory for appointment at the entry level of Assistant Professor, subject to the exemptions to the degree of Ph.D. in respect of those persons obtaining the award through a process of registration, course-work and external evaluation, as have been/or may be laid down by the UGC through its Regulations, and so adopted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and implement the Scheme subject to terms and conditions mentioned therein. 27. The Madurai-Kamaraj University Act, 1965 (University Act) [(Tamil Nadu) ACT No. 33 of 1965] The above said Act was enacted by the State Legislature to provide for the establishment and incorporation of a University at Madurai enacted by the State Legislature. Section 2(m) of the University Act defines 'teachers' as under: 2(m). teachers means such lecturers, readers, assistant professors, professors and other persons giving instruction in University colleges or laboratories, in affiliated or approved colleges, or in hostels, and librarians as may be declared by the statutes to be teachers; Section 2(n) defines 'teachers of the University' as follows: 2(n) teachers of the University means persons appointed by the University to give instruction on its behalf; 'University Lecturer', 'University Reader' or 'University Professor' are defined Under Section 2(t) as follows: 2(t) University Lecturer , University Reader or University Professor means Lecturer, Reader or Professor respectively appointed as such by the University; Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three years and shall be eligible for re-appointment for not more than two successive terms. (4) When any temporary vacancy occurs in the office of the Vice-Chancellor or if the Vice-Chancellor is, by reason of absence or for any other reason, unable to exercise the powers and perform the duties of his office, the Syndicate shall, as soon as possible, make the requisite arrangements for exercising the powers and performing the duties of the Vice-Chancellor. (5) The Vice-Chancellor shall be a whole-time officer of the University and shall be entitled to such emoluments, allowances and privileges as may be prescribed by the statutes. The powers and duties of the Vice-Chancellor are mentioned in Section 12 which is as follows: Section 12. Powers and duties of the Vice-Chancellor. - (1) The Vice-Chancellor shall be academic head and the principal executive officer of the University and shall, in the absence of the Chancellor and Pro-Chancellor, preside at meetings of the Senate and at any convocation of the University. He shall be a member ex-officio and Chairman of the Syndicate, the Academic Council and the Finance Committee and shall be entitled to be present at and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation of teaching and examination within the University and be responsible for the maintenance of the standards thereof and shall exercise such other powers and perform other duties as may be prescribed. Section 24. Constitution of the Academic Council.- (a) The Academic Council shall, in addition to the Vice-Chancellor, consist of the following persons, namely;- Class I - Ex-officio members- (1) The Director of Higher Education, Madras; (2) The Director of Secondary Education, Madras; (3) The Director of Technical Education, Madras; (3-A) The Director of Medical Education; (4) The heads of University Departments of Study and Research; (5) Members of the Syndicate who are not otherwise members of the Academic Council; xxx 29. Chapter VI of the University Act deals with Statutes, Ordinances and Regulations. Section 30 stipulates the matters which can be provided under Statutes. This includes the constitution or reconstitution, powers and duties of the authorities of the University. Section 32 deals with Ordinances which may provide for all or any of the matters mentioned therein including the qualifications and emoluments of teachers of the University ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofessor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization. Whereas the post of Vice-Chancellor under University Act, 1965 and statute made thereunder is not a teaching post but an officer of the University. Constitutional Provisions: 32. Article 246 demarcates the matters in respect of which Parliament and State Legislature may make laws. The legislative powers of the Central and State Governments are governed by the relevant entries in the three lists given in 7th Schedule. Entry 66 in List I provides for Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Prior to 42nd Amendment, education including Universities subject to the provisions of the Entries 63, 64, 65, 66 of List-I and Entry 25 of List III was shown in Entry 11 of the List II - State List. By 42nd Amendment of Constitution w.e.f. 3rd January, 1977 Entry 11 of List II-State List was omitted and was added as Entry 25 of List-III. At present the aforesaid provisions read as follows: Seventh Schedule List I - Union List Entry 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: 12. The subject coordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always remained the special preserve of Parliament. This was so even before the Forty-second Amendment, since Entry 11 of List II even then was subject, among others, to Entry 66 of List I. After the said Amendment, the constitutional position on that score has not undergone any change. All that has happened is that Entry 11 was taken out from List II and amalgamated with Entry 25 of List III. However, even the new Entry 25 of List III is also subject to the provisions, among others, of Entry 66 of List I. It cannot, therefore, be doubted nor is it contended before us, that the legislation with regard to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of Parliament. What was contended before us on behalf of the State was that Entry 66 enables Parliament to lay down the minimum standards but does not deprive the State legislature from laying down standards above the said minimum standards. We will d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally. 35. In Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120, a Constitution Bench of five Judges dealt with the State competence under List III Entry 25 to control or regulate higher education which is subject to standards laid down by the Union of India. The Court noticed that the standards of higher education can be laid down under List I Entry 66 by the Central Legislation and held as follows: 35. The legislative competence of Parliament and the legislatures of the States to make laws Under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on education including universities, subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are: (1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education in the given span of time; (3) the student-teacher ratio; (4) the ratio between the students and the hospital beds available to each student; (5) the calibre of the students admitted to the institution; (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) adequate accommodation for the college and the attached hospital; and (8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true that the Statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalise educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible. 42. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of Clauses (e), (f), (g) and (h) of Sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC Under Sections 26(1)(f) and 26(1)(g) are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed hereinbefore that the functions of UGC are all-pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appointment of the Search Committee by the Chancellor in accordance with the provisions of Section 12 of the Maharashtra University Act is not in conformity with the provisions of Regulation 7.3.0 of the UGC Regulations, 2010 made under the UGC Act. 42. In the said case also, State of Maharashtra and the Chancellor of Pune University while opposing the writ petition had taken a plea that UGC Regulations, 2010 being in the nature of subordinate Legislation cannot override the provisions of Section 12 of the Maharashtra University Act, 1994, which is a preliminary Legislation made by the State Legislature. In the said case the Bombay High Court held: 16... Applying the aforesaid test of direct impact on the standard of Education and the principles laid down in the aforesaid decisions, we are of the view that the qualifications and the method of appointment for the post of Pro-Chancellor and Vice-Chancellor of a University cannot be considered as having direct impact on the standards of education. 17. We are, accordingly, of the considered view that Regulations 7.2.0 and 7.3.0 of UGC Regulations for appointment of Pro-Chancellor and Vice-Chancellor of the Universit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the discussion as made above, we hold: (i) To the extent the State Legislation is in conflict with Central Legislation including sub-ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative. (ii) The UGC Regulations being passed by both the Houses of Parliament, though a sub-ordinate legislation has binding effect on the Universities to which it applies. (iii) UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central Universities and Colleges thereunder and the Institutions deemed to be Universities whose maintenance expenditure is met by the UGC. (iv) UGC Regulations, 2010 is directory for the Universities, Colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement the Scheme. Thus, UGC Regulations, 2010 is partly mandatory and is partly directory. (v) UGC Regulations, 2010 having not adopted by the State Tamil Nadu, the question of conflict between State Legislation and Statutes framed under Central Legislation does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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