If the condition for the post mentioned in the advertisement is not fulfilled than appointment cannot be allowed

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 6112 OF 2010

                                                  Beena Inamdar,Adult, Occ.-Teacher,

Residing at – 14, Gananjay Society,

Swapnajit Bunglow, Kothrud,

Pune-411 038. ...Petitioner

Versus

1. University of Pune, Ganeshkhind Road,

Pune - 411 007.

2. The Honourable Vice Chancellor,

University of Pune, Ganeshkhind Road,

Pune - 411 007.

3. Maharshee Karve Stree Shikshan Sanstha,

Karve Nagar, Pune – 411 052.

4. Shri.Siddhivinayak Arts, and Commerce

College for Women, Karve Nagar,

Pune 411 052.

5. State of Maharashtra (Summons to be served on the Learned

Government Pleader appearing for

State of Maharashtra under Order XXVII,

Rule 4, of the Code of Civil Procedure, 1908).

6. The Secretary, Department of Higher and Technical Education,

Government of Maharashtra,

Mantralaya, Mumbai – 400 032.

(Summons to be served on the Learned

Government Pleader appearing for

State of Maharashtra under Order XXVII,

Rule 4, of the Code of Civil Procedure, 1908).

7. University Grants Commission,

A body constituted under the

UGC Act, having its office at

Bahadurshah Zafar Marg,

New Delhi – 110 002. ...Respondents.

......

                           Mr.A.V.Anturkar i/by Mr. S.B. Deshmukh for the Petitioner.

Mr.Girish Kulkarni with Ms.Bhakti Deshmukh i/by Mrs. M.G. Kulkarni for Respondents No. and 2.

Mr.Sandeep R. Waghmare for Respondents No.3 and 4.

Mr.V.S.Gokhale, A.G.P., for Respondents No.5 and 6.

Mr.Rui Rodrigues for Respondent No.7.

......

CORAM: A.M. KHANWILKAR AND

MRS. MRIDULA BHATKAR, JJ.

DATE : DECEMBER 8, 2011

JUDGEMENT

(Per A.M. Khanwilkar, J.):-

1. Rule. Rule made returnable forthwith, by consent. Counsel for the respective respondents waive notice.

2. By this petition under Article 226 of the Constitution of India, the petitioner has primarily assailed the decision of respondent No. 2 dated 2nd July, 2010, as also the letter intimating the petitioner about the decision of the respondent No. 2 dated 2nd July, 2010. The petitioner further prays that this Court may issue appropriate writ directing the respondents No. 3 and 4, i.e., Management and College, respectively, to appoint the petitioner as Principal of the College, since she is duly qualified to be appointed to the said post, as was held by respondent No. 2 vide decision dated 30th March, 2007. During the pendency of this  petition, by way of amendment, the petitioner has prayed for further reliefs. It is prayed that appropriate writ be issued for quashing and setting aside Government Resolution (hereinafter referred to as `GR’) No.NGC-1200/7193/(5/00)/VISHI-4 dated 13th June, 2000 issued by the Higher and the Technical Education Department of the Government of Maharashtra being ultra vires the provisions of the Maharashtra Universities Act, 1994 (hereinafter referred to as `the MU Act’). It is further prayed that appropriate writ be issued to quash and set-aside the letter written by the University Grant Commission (hereinafter referred to as `UGC’) to the respondent University informing about the inclusion of the name of the respondent No.4 College in the list prepared under Section 2(f) of the UGC being ultra vires the provisions of the UGC.

3. Briefly stated, an advertisement was issued by the respondent No.3 dated 6th July, 2006, which appeared in the local newspapers inviting applications for the post of Principal in respondent No. 4-College. Notably, the advertisement stated that the applications were invited for the post of Principal of the College run by respondent No.4 which is a fully aided Degree College affiliated to the University of Pune. As regards the educational qualification, experience and pay-scale of the candidate aspiring to apply pursuant to the said advertisement, it is stated that the same should be as per UGC, State Government and Pune University Rules.

4. Pursuant to that advertisement, the petitioner and others applied for the post of Principal of respondent No. 4-College. The interview was conducted on 10th September, 2006 by the Selection Committee, which, by its report dated 10th September, 2006 , by majority, recommended the name of the petitioner for being appointed to the post of Principal of respondent No. 4-College.

5. However, the Chairman and the Vice Chairman of respondent No.3-institute did not agree with the recommendation of the Selection Committee. In their opinion, the petitioner did not possess necessary qualification of Ph.D. Degree for being appointed as Principal of the affiliated college. Inasmuch as the said qualification was specified by the State of Maharashtra, and which direction has been acted upon by the University of Pune and would be binding on respondents No. 3 and 4  Instead, they recommended the name of another candidate, Dr. Pushpa Ranade, after recording their remarks on the Selection Committee Report in that behalf. The report of the Selection Committee, with the remarks and recommendation of Chairman and Vice Chairman of the said institute, was then submitted to the University on 11th September, 2006. As there was no unanimous recommendation for appointing the petitioner to the post of Principal of respondent No.4-College, the University, by its letter dated 4th November, 2006, referred the matter back to the Selection Committee for resolving the matter amicably. As per the directive of the University, a special meeting of the Selection Committee was held on 29th November, 2006. In that meeting, the earlier Selection Committee Report dated 10th September, 2006 came to be confirmed. The said recommendation was submitted to the University. Respondent No. 2, Vice Chancellor of the University, approved the said recommendation of the Selection Committee, which fact is recorded in the communication dated 30th March, 2007.

6. Notwithstanding the above, respondents No. 3 and 4 did not issue appointment order in favour of the petitioner. Instead, respondent No. 3 issued another advertisement on 23rd February, 2009, inviting applications for appointment to the post of Principal of respondent No.4-  College. As a result, the petitioner filed Writ Petition No. 2774 of 2009, inter alia, for quashing of the said advertisement dated 23rd February, 2009 and to issue direction to the appropriate authorities to refrain from releasing any salary grant-in-aid, if some other person were to be appointed to the post of Principal of respondent No. 4-College. The said writ petition was disposed of in terms of order dated 10th December, 2009, which reads thus:-

“P.C.

1. Rule. Returnable forthwith. Heard finally by consent of parties.

2. By consent of parties, petition disposed of in following terms:

(i) The learned Counsel appearing for the Respondents Nos. 3 & 4 states that the Respondents Nos.3 & 4 will withdraw the advertisement dated 23-2-2009 for the post of Principal. Statement is accepted.

(ii) The learned Counsel appearing for the Respondent No.1 states that the Vice- Chancellor of the Respondent-University will decide the representation of the Respondents Nos.3 & 4 dated 28th September,2006, copy of which is at Exh. C to the reply-affidavit filed by Respondents Nos.3 & 4, after  granting an opportunity of being heard to the Petitioner and the Respondents Nos.3 & 4 in accordance with law by a speaking order.

Statement is accepted.

(iii) It is directed that the Vice- Chancellor shall make his order on representation dated 28th September, 2006 as expeditiously as possible, in any case within a period of six weeks from today.

(iv) Parties shall be at liberty to file additional material that they want to file within a period of two weeks from today.

(v) In case the Vice-Chancellor maintains his order approving the selection of the Petitioner to the post of Principal, the Respondents Nos.3 & 4, subject to their right to challenge the order of the Vice- Chancellor, shall make the appointment of the Petitioner to the post of Principal within a period of four weeks from the date of communication of the order, unless they secure suitable order from the appropriate court or authority.

(vi) Rule made absolute accordingly. No order as to costs.”

(emphasis supplied)

7. Pursuant to the above order, respondent No. 2-Vice Chancellor, examined the matter, and, by his order dated 18th January, 2010, directed respondent No.3-institute to issue order of appointment in favour of the petitioner to the post of Principal of respondent No. 4- College within four weeks from the date of communication of the order so passed. Respondent No.2 was of the opinion that, as per clause 6 of the Government Resolution dated 13th October, 2000, since the petitioner was appointed to the post of Principal before 24th December, 1998 in Symbiosis Society’s Arts and Commerce College (i.e., from 14^th December, 1993 to 15th April, 2006), the qualification of Ph.D. Degree was inapplicable to her. Instead, held that the petitioner was eligible to be appointed as Principal of respondent No.4-College as per the provisions of Government Resolution dated 28th March, 2001. It is further held that, as per Government Resolution dated 7th March, 1985, maximum six breaks in service within the total period not exceeding two years can be condoned by the Competent Authority, but each break shall not be more than a year. In the case of the petitioner, she was appointed as Principal of respondent No.4-College pursuant to the recommendation of the Selection Committee made in its report dated 10th September, 2006. As a result, there would be a break of only four and a half months in her service, which could be condoned as per the said Government Resolution dated 7th March, 1985. On this reasoning, respondent No.2 held that the petitioner was eligible to be appointed to the post of Principal of respondent No.2-College, and directed respondents No. 3 and 4 to issue an appointment order in favour of the petitioner within four weeks from the date of communication of the said order.

8. The above-said order was challenged by respondents No. 3 and 4 before this Court by way of Writ Petition No. 1563 of 2010. The said writ petition was disposed of on 4th March, 2010. The said order reads thus:-

“P.C:-

On a motion made by the learned counsel appearing for the Petitioners names of Respondent Nos. 3, 4 and 5 are permitted to be deleted.

2. Rule. Returnable forthwith. Heard finally by consent of parties.

3. By consent of parties the order dated 18-01-2010 is set aside and the mater is remitted back to the Vice-Chancellor-Respondent No. 2 for denovo consideration and decision in accordance with law and the order passed by this court dated 10th December, 2009 in Writ Petition No.2777 of 2009.

4. Rule made absolute accordingly. No order as to costs.”

9. As the matter was remitted to respondent No.2 for re-consideration de novo, respondent No. 2, after taking into account the rival submissions, held that the advertisement dated 6th July, 2006 published by respondent No.3-institute, inviting applications for the post of Principal of respondent No.4-College clearly mentions that educational qualifications, experience and pay-scale for the post of Principal must be as per UGC, State Government and University of Pune Rules. Further,  the norms prescribed by UGC by Notification dated 4th April, 2000 stipulate minimum qualification, amongst others, for the post of Principal of the college and for their career advancement. Insofar as the post of Principal (Professor’s Grade) (Rs.16400-450/20900-500-22400) (Minimum to be fixed at 17,300/-), the incumbent must have a Master’s Degree with at least 55% of the marks or its equivalent grade of B in the 7 Points scale with letter grade O, A, B, C, D, E and F; Ph.D. or equivalent qualification; total experience of 15 years teaching / Research in Universities / Colleges and other institutions of Higher Education. Insofar as the post of Principal (Reader’s Grade) (Rs.12000-420-18300) (Minimum to be fixed at 22840), the minimum educational qualification prescribed is same as of the earlier cadre, but the teaching / research experience required is only of 10 years. Respondent No.2 then adverted to the Government Resolution dated 13th October, 2000, issued by the Government of Maharashtra, adopting the above qualification prescribed by UGC. Respondent No.2 then held that educational qualification of Ph.D. or equivalent qualification was essential qualification to hold the post of Principal of respondent No.4-College.

10. To buttress the above opinion, reference is made to provisions of Section 5(9) of the Maharashtra Universities Act, 1994 and Section 5(60) of the same Act, to hold that it was obligatory for the University to comply and carry out the directives issued by the Government of Maharashtra as regards qualifications for the post of Principals of the colleges. Respondent No.2 then observed that, as regards the petitioner, she did not possess the necessary educational qualification as recommended by UGC vide Notification dated 4th April, 2000 and adopted by the Government of Maharashtra vide Resolution dated 13th October, 2000.

11. Respondent No.2 then considered the argument of the petitioner that she has been working on the post of Principal prior to 24^th December, 1998; and for that reason, the minimum qualification of Ph.D. or its equivalent as prescribed would not be applicable to her. That contention has been rejected on the opinion that the Government of Maharashtra issued Resolution dated 28th May, 2001 in continuation of the Government Resolution dated 13th October, 2000, which specifies the minimum qualification for the post of Principal. The said Government Resolution dated 28th May, 2001 has clarified that the person working as Principal in one college would be eligible to be appointed on the post in another college, even if he did not fulfill the essential qualification of Ph.D. Degree. However, in the case of the petitioner, on the date of her application on 9th July, 2006, pursuant to the advertisement dated 6th July, 2006 and also the date on which her interview was held on 10^th September, 2006 by the Selection Committee, she was, in fact, not working as Principal of another college. In that, she worked as Principal for Symbiosis Society’s Arts and Commerce College from 14^th December, 1993 to 15th April, 2006. Thus, it is held that the petitioner was not entitled to rely on the Resolution dated 28th May, 2001.

12. Respondent No.2 then observed that, since the petitioner was ineligible, she should not have been called for interview for the post of Principal of respondent No. 4-College by the management. The respondent No.2 then dealt with the plea of the petitioner that it was not open to the Vice Chancellor to review his own decision taken on the earlier occasion. Even this contention has been rejected by relying on the order passed by this Court dated 4th March, 2010, which directed respondent No.2 to consider the entire matter de novo. As a result, respondent No.2 concluded that the petitioner did not possess the essential qualification of Ph.D. Degree for being appointed to the post of Principal of respondent No.4-College, as was prescribed by the Government of Maharashtra vide Resolution dated 13th October, 2000. This order dated 2nd July, 2010 was communicated to the petitioner vide letter dated 2nd July, 2010.

13. Being aggrieved by this decision, the petitioner has, once again, approached this Court by way of the present petition under Article 226 of the Constitution of India. The reliefs claimed in the writ petition have already been adverted to in paragraph 2 above. In support of the aforesaid reliefs, the petitioner has asserted that going by the provisions of the MU Act, what should be the qualification for the post of teacher or for the post of Principal, is within the exclusive domain of respondent No.1 University. It is not open for respondent No.5 i.e. State of  Maharashtra to lay down any qualification in that behalf. It is also not open even to the UGC to do so. It is then contended that going by the provisions of the UGC, the same are only recommendatory in nature. So long as the concerned University does not pass appropriate Statute to incorporate the same, the regulation framed by the UGC ipso facto does not become applicable. Thus, the norm specified in said regulations cannot be invoked to decide the question as to whether the petitioner

possessed the necessary qualification for holding the post of Principal of the College. It is then asserted that the guidelines notified by the UGC vide Notification dated 4th April, 2000 is in respect of minimum qualification for the post of Professor, Principal, Reader and Lecturer in the Universities and in the Colleges and for their career advancement.The qualification prescribed in the said Notification is not adopted by the University of Pune by passing any Statute. The Statute of the University of Pune i.e. Statute No.413 prescribes the qualification for appointment of Principal. It does not specify that Ph.D. is essential qualification. It is then asserted that the respondent No.2 was ill-advised in deciding the controversy on the basis of the GR dated 13th October, 2000, issued by the State Government, which lays down the qualification for appointment to the post of the Principal. According to the petitioner, as per the provisions of the MU Act, the State Government, even though is  an Authority, has a limited role to play; therefore, could not have specified the minimum qualification for appointment to the post of Principal, albeit, in exercise of executive power purported to be under Article 162 of the Constitution of India. For, that field is covered by the law authorising the University of Pune to prescribe the same, by virtue of the provisions of the MU Act. Thus, the GR can have no force in the eyes of law. In substance, the petitioner has asserted that the respondent No.2 ought to have decided the matter strictly in accordance with the Statute of the University and if the Statute does not provide for the minimum Ph.D. qualification to hold the post of Principal of the College, that qualification cannot be taken into account by relying on the recommendation of the UGC.

14. The writ petition was fully heard by this Bench on 11th April, 2011 and the Judgment was reserved. However, before the Judgment could be pronounced, on 13th April, 2011, the matter was moved by the Counsel for the respondent No.4 to invite our attention to the fact that the respondent No.4 College has in fact been recognised by the University as per the provisions of UGC. In the light of this disclosure, the Counsel for the petitioner prayed for time to examine the matter including to amend the petition to urge further grounds as also to ask for further reliefs, if

any. Accordingly, in the interest of justice, the petition was allowed to be amended to enable the petitioner to urge further grounds and to ask for further reliefs. As per that liberty, the petitioner has amended the petition. As per the amended petition, the petitioner asserts that the respondent No.4 College is not a recognised College as required in terms of Section 2(f) of the UGC Act. In that, no formal resolution has been passed by the Commission in that regard. The respondent No.4, however, merely relies on the letter (Annexure A-12) issued by the respondent No. 4. Going by that communication also, the respondent No.4 College cannot be considered as duly recognised College by the UGC within the meaning of Section 2(f) of the UGC Act. For, the stated communication is issued under the signature of the Under Secretary without following the statutory procedure. The provisions of the UGC Act mandates, contends the petitioner, that the proposal regarding recognition has to be placed before the Commission and the decision to grant or not to grant recognition must be that of the Commission. Instead, the procedure followed by the Commission with regard to the proposal of the respondent No.4 College was that the same was first placed before the Under Secretary of the Commission, who made his notings on the proposal. Thereafter, the proposal was placed before the Joint Secretary and eventually, before the Chairman of the UGC and after his signature, the communication Exhibit A-12 was issued by the Under Secretary informing the Registrar of the University of Pune that the name of the respondent No.4 has been included in the list of Colleges prepared under Section 2(f) of the UGC Act, 1956 under the head `Non-Government Colleges teaching up to Bachelors Degree’. By virtue of the said communication, the respondent No.4 College has become eligible to receive financial assistance from the UGC. But according to the petitioner, the purported recognition of respondent No.4 College is ultra vires the requirements of the Act – in absence of the decision of the Commission as a whole. No meeting of the Commission or any Resolution has ever been passed by the Commission to grant recognition to respondent No.4 College. According to the petitioner, there is no provision which could allow the Commission to delegate its powers of considering proposal for recognition of College to its Officers; nor such delegation has in fact been done by the Commission to the best of the knowledge of the petitioner. It is further asserted that the power of the State Government is only in respect of financial matters as referred to in Section 8 of the MU Act. Directions issued in that regard alone are binding on the University and the respective Colleges. Further, Section 2(26) by itself is not a source of power independent of Section 8 of the MU Act. According to the petitioner, the provision of Section 5(60) of the MU Act cannot be invoked by the State Government to lay down any qualification for the post of Principal or to adopt the qualification prescribed by the UGC. The prescription of the qualification prescribed by the UGC has to be adopted by the University and not because of the directions of the State Government. For that reason, the GR dated 13^th June, 2000 was illegal and bad in law.

15. The respondents have filed reply affidavits both to the original petition as well as the amended petition. The sum and substance of the reply given by the respondents is that the petitioner did not possess requisite qualification as prescribed by the UGC. According to the respondents, the regulations specifying the minimum qualification for the post of Principal is spelt out in the Regulations called 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 said Regulations”). The said Regulations were applicable to even institutions affiliated to the Universities established under the MU Act including the institutions that are recognised by the UGC under Section  2(f) of the UGC Act. Further, the Maharashtra Government vide Resolution dated 13th June, 2000 made the said UGC Regulations applicable to Universities and Colleges affiliated to the Universities within the State of Maharashtra. Clause (7) of the GR specifically mentions that the Universities shall ensure that the terms and conditions as specified in the UGC Regulations and Government Resolutions are strictly complied with by the Universities and College affiliated to them. The respondents have pressed into service Sections 5(49), 5(60), 14(5) and Section 8 of the MU Act to contend that the University has ample powers to lay down its own qualification as well as adopt the minimum qualification prescribed by the UGC for appointment to the post of the Principal of the College affiliated to it. Rather, the University is obliged to ensure that the minimum educational qualification required for the post of Principal as specified by the UGC is observed in every case and no appointment in breach thereof could be approved nor the College committing such breach will be entitled for grant-in-aid. The respondents have asserted that the fact that the Statute 413 does not prescribe qualification for the appointment to the post of Principal cannot enure to the benefit of the petitioner. For, the Vice Chancellor of the University, vide order dated 12th March, 2011, issued in exercise of power vested in him by virtue of Section 14(8) of the MU Act, has made the provisions of UGC Regulations and GR dated 15th February, 2011 applicable for the appointment of teachers in Universities and other affiliated colleges. As the petitioner does not possess Ph.D. Degree, she is not eligible for being appointed to the post of the Principal.

16. At the time of hearing, Counsel for the petitioner has reiterated the grounds urged in the original petition as well as amended petition. The petitioner has primarily raised three contentions before us. The first argument is that the regulations framed by UGC are only recommendatory in nature. The same would come into force only if the provisions of the Maharashtra Universities Act or the statutes, ordinances or regulations framed thereunder were to incorporate the recommendations of UGC. In absence thereof, the recommendations of UGC cannot be enforced, nor would have binding force on the University or the affiliated college. The second contention is that, in any case, the regulations issued by UGC prescribing minimum qualifications would, at best, apply to the appointments to be made in the University established or incorporated by or under a Central Act or a provincial Act or a State Act; and include any such institution, which has been recognised by the Commission in accordance with the regulations made in that behalf under the Act in consultation with the University concerned. Respondent No.4-College is only an affiliated college with the respondent No.2 University. Thus, the said regulation will be of no avail, and cannot be the basis to decide the claim of the petitioner.

17. The last contention is that the State cannot specify the qualifications as is sought to be done by Government Resolution dated 13th October, 2000, read with Resolution dated 13th June, 2000. For, that is the prerogative of the University, and not the State Government. Thus, the said Government Resolution cannot be pressed into service. Further, the University has not incorporated the said requirements concerning the appointment to the post of the Principal of an affiliated college by incorporating the same in the statutes, ordinances or, for that matter, regulations framed under the Maharashtra Universities Act. In other words, neither the Act nor the statutes, ordinances or regulations provide for such minimum qualification.

18. At the outset, we may notice that the advertisement issued by respondent No. 3, inviting applications for appointment to the post of Principal of respondent No.4 College expressly mentions that - educational qualifications, experience and pay-scale for the post of Principal will be “as per UGC”, State Government and University of Pune Regulations. Pursuant to that advertisement, the petitioner applied  for the said post. Going by the qualification specified in the said advertisement, the petitioner was ineligible for being considered, as she did not possess the qualification as per UGC and as adopted by the State Government and University of Pune. Admittedly, the petitioner has not challenged the subject advertisement dated 7th July, 2006, pursuant to which, she submitted her application. Even if the petitioner were to challenge the said advertisement, the same would be untenable. For, the appointing authority can always provide for a higher benchmark of qualification than the minimum qualification specified by law. Indeed, if the Management were to invite applications from incumbents with lesser qualification than the prescribed minimum qualification, that action of the Management would be susceptible to challenge. Further, the fact that the petitioner’s application was processed by the Management even though she did not possess Ph.D. or equivalent qualification or that the petitioner was interviewed by the Selection Committee, it would not vest any right in the petitioner, much less, right to be appointed to the said post. Whereas, the appointing authority was free to make a choice from amongst the candidates who possessed relatively better qualifications and more suitable. Suffice it to observe that the petitioner cannot be heard to challenge the qualification specified by the appointing authority in the advertisement dated 6th July, 2006.

19. Reverting to the first contention, the same is founded on the observation of the Apex Court in the case of University of Delhi v. Raj Singh & Ors., reported in 1994 Supp (3) SCC 516. Emphasis was placed on the dictum in this decision, which holds that the provisions of the regulations framed by the University Grants Commission are recommendatory in character; and those regulations do not impinge upon the power of the University to select its teachers. To buttress this contention, reliance was placed on provisions of Section 12 of the University Grants Commission Act, 1956, which specifies the powers and functions of the Commission. Clause (d) thereof enables UGC to recommend to any University the measures necessary for the improvement of University education and advise the University about the action to be taken for the purpose of implementing such recommendation. Our attention was then invited to Section 12A, which deals with regulation of fees and prohibition of donations in certain cases.

20. Mr. Anturkar, learned counsel for the petitioner, then referred to Section 14 of the UGC Act, which provides for consequences of failure of Universities to comply with recommendations of the  Commission. Section 14 reads thus:-

“14. If any University grants affiliation in respect of any course of study to any college referred to in sub-section (5) of section 12A in contravention of the provisions of that sub-section or fails within a reasonable time to comply with any recommendation made by the Commission under section 12 or section 13, or contravenes the provision of any rule made under clause (f) or clause (g) of sub-section (2) of section 25, or of any regulation made under clause (e) or (f) or clause (g) of section 26, the Commission, after taking into consideration the cause, if any, shown by the University for Such failure or contraventions may withhold from the University the grants proposed to be made out of the Fund of the Commission.”

21. Relying on these provisions, it was contended that the specified contraventions, deal with the matters other than prescribing minimum qualification for being appointed as Principal. Even Section 24 of the UGC Act provides that penalties can be imposed against persons contravening the provisions of Sections 22 and 23 of the Act. Section 22 of the Act deals with right to confer degrees, whereas Section 23 prohibits use of word ‘University’ in certain cases. The learned counsel for the petitioner would, thus, contend that there is no provision in the UGC Act to even remotely suggest that the guidelines issued by UGC would be automatically binding on the University or, for that matter, an affiliated college.

22. We shall first revert back to the decision of the Apex Court in the case of University of Delhi (supra). In that case, a person, who wanted to be appointed to the post of Lecturer in Commerce in the affiliated college, had filed writ petition before the Delhi High Court, as he was not called for interview. The writ petitioner asserted that the advertisement inviting applications from the interested candidates did not lay down that candidates should have passed the test prescribed by

the regulations framed by UGC. The Delhi High Court held that the Notification dated 19th September, 1991, by which 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 published by UGC, was valid and mandatory, and the Delhi University was obliged under law to comply therewith. Against that opinion, the University of Delhi filed appeal before the  Apex Court. In the appeal, the argument of the Delhi University was that the said Regulations of 1991 were beyond the competence of UGC, and that, in any event, the same were directory and not mandatory. It was contended that the Delhi University was an autonomous body, and no condition of eligibility could be imposed upon it.

23. This decision of the Apex Court will have to be understood in the backdrop of the arguments canvassed by the University of Delhi. The Apex Court eventually dismissed the appeal preferred by the University of Delhi, and upheld the opinion of the Delhi High Court that the Notification dated 19th September, 1991 issued by UGC was valid and mandatory, and the Delhi University was obliged under law to comply therewith. It will be useful to advert to the exposition of the Apex Court in paragraphs 19 to 21 and 24 of the reported decision, which deals with the efficacy of Section 26(1)(e) of the UGC Act. It read thus:-

“19. The Delhi University Act was on the statute book when the UGC Act was enacted by Parliament under Entry 66 of List I. It must be assumed that Parliament was aware of the provisions of the Delhi University Act when it enacted the UGC Act, particularly because the power to enact legislation concerning the Delhi University lay with Parliament under Entry 63 of List I. The Delhi University and other Universities covered by Entry 63 were consciously made subject to the regulation of the UGC insofar as coordination and determination of standards were concerned. This was made explicit by the definition of University in Section 2(f) of the UGC Act. To take any other view would be to make otiose, qua the Universities covered by Entry 63, not only the UGC Act but Entry 66 itself. The argument that Section 2(f) of the UGC Act defining ‘University’ had to be read not with reference to the UGC Act as deal with funding must be rejected. If there were  merit in the argument that Entry 66 operated only vis-a-vis institutions other than those mentioned in Entry 63, the UGC Act in its entirety would not apply to the Delhi University and the Delhi University would, consequently, not be entitled to receive any grant thereunder. It is for this reason, to avail the grant but shed the obligation under the UGC Act, that the argument has been so cautiously advanced.”

“20. The ambit of Entry 66 has already been the subject of the decisions of this Court in the cases of the Gujarat University and the Osmania University. The UGC Act is enacted under the provisions of Entry 66 to carry out the objective thereof. Its short title, in fact, reproduces the words of Entry 66. The principal function of the UGC is set out in the opening words of Section 12, thus:

“It shall be the general duty of the Commission to take .... all such steps as it may think fit for the promotion and coordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities...”

It is very important to note that a duty is cast upon the Commission to take “all such steps as it may think fit .... for the determination and  maintenance of standards of teaching”. These are very wide-ranging powers. Such powers, in our view, 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. The need for such test is demonstrated by the reports of the commissions and committees of educationists referred to above which take note of the disparities in the standards of education in the various Universities in the country. It is patent that the holder of a postgraduate degree from one University is not necessarily of the same standard as the holder of the same postgraduate degree from another University. That it the rationale of the test prescribed by the said Regulations. It falls squarely within the scope of Entry 66 and the UGC Act inasmuch as it is intended to coordinate standards and the UGC is armed with the power to take all such steps as it may think fit in this behalf. For performing its general duty and its other functions under the UGC Act, the UGC is invested with the powers specified in the various clauses of Section 12. These include the power to recommend to a University the measures necessary for the improvement of University education and to advise in  respect of the action to be taken for the purpose of implementing such recommendation (clause d). The UGC is also invested with the power to perform such other functions as may be prescribed or as may be deemed necessary by it for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions [clause (j)]. These two clauses are also wide enough to empower the UGC to frame the said Regulations. By reason of Section 14, the UGC is authorised to withhold from a University its grant if the University fails within a reasonable time to comply with its recommendation, but it is required to do so only after taking into consideration the cause, if any, shown by the University for such failure. Section 26 authorises the UGC to make regulations consistent with the UGC Act and the rules made thereunder, inter alia, defining 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 [clause (e) of sub-section (1)]; and regulating the maintenance of standards and the coordination of work or facilities in Universities [clause (g)]. We have no doubt that the word ‘defining’ means setting out precisely or specifically. The word ‘qualifications’, as used in clause (e), is of wide amplitude and would include the requirement of passing a basic eligibility test prescribed by the UGC. The word ‘qualifications’ in clause (e) is certainly wider than the word ‘qualification’ defined in Section 12-A(1)(d), which in expressly stated terms is a definition that applies only to the provisions of Section 12-A. Were this definition of qualification, as meaning a degree or any other qualification awarded by a University, to have been intended to apply throughout the Act, it would have found place in the definition section, namely Section 2.”

21. We now turn to analyze the said Regulations. They are made applicable to a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, every institution, including a constituent or an affiliated college recognised by the UGC in consultation with the University concerned, and every institution deemed to be a University. The said Regulations are thus intended to have the widest possible application, as indeed they must have if they are to serve the purpose intended, namely, to ensure that all applicants for the post of lecturer, from whichever University they may have procured the minimum qualificatory degree, must establish that they possess the proficiency required for lecturers in all Universities in the country. This is what Clause 2 of the said Regulations mandates, thus :

" No person shall be appointed to a teaching post in University... in a subject if he does not fulfil the requirements as to the qualifications for the appropriate subject as provided in the Schedule 1".

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 UGC. 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 UGC 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 fulfil 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 prior approval of the UGC 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 UGC that it had done so for good cause, it would lose its grant from the UGC. The said Regulations do not impinge upon the power of the University to select its teachers. The University may still select its lecturers by written test and interview or either. Successful candidates at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and, therefore, all who have cleared it stand at the same level. There is, therefore, no element of selection in the process. The University's autonomy is not entrenched upon by the said Regulations.”

.........................

24. It is now appropriate to clarify the direction that the Delhi High Court issued in allowing the writ petition. It held that the notification dated 19-9-1991, by which the said Regulations were published, was valid and mandatory and the Delhi University was obliged under law to comply therewith. The Delhi University was directed to select lecturers for itself and its affiliated and subordinate colleges strictly in accordance with the notification. Put shortly, the Delhi University is mandated to comply with the said Regulations. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said Regulations: or it may seek prior approval for the relaxation of this requirement in a specific case; or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC's approval, in which event it would, if it failed to show cause for  its failure to abide by the said Regulations to the satisfaction of the UGC, forfeit its grant from the UGC. If, however, it did show cause to the satisfaction of the UGC, it not only would not forfeit its grant but the appointment made without obtaining the UGC's prior approval would stand regularised.”

(emphasis supplied)

24. From the above quoted enunciation of the Apex Court in the case of University of Delhi (supra), it necessarily follows that the University of Pune, which is governed by the provisions of the MU Act (State Act) is obliged to comply with the said Regulations of the UGC - insofar as

coordination and determination of standards is concerned. The Commission is bestowed with very wide ranging powers in that behalf. That comprehends the power to define the educational qualification that should ordinarily be required for any person to be appointed on the post of lecturer in the Universities and Colleges with minimum proficiency for holding such post. While analysing the Regulations of 1991 issued by the UGC, the Apex Court has held that the same are made applicable to University established or incorporated by or under a Central Act, a Provincial Act or “State Act”, every institution, including a constituent or an affiliated college recognised by the UGC in consultation with the University concerned, and every institution deemed to be a University. Indeed, the Apex Court has noticed that the Regulations were only recommendatory in character. That opinion, however, is in the context of option available to the University to comply with the provisions contained in the Regulation regarding the qualifications of the lecturers as provided in the Regulations or to get it relaxed from the Commission on showing good cause. In the event, any University decided not to follow the Regulations, that it could do “in specific cases” after seeking “prior approval of the UGC” to relax the specified requirements under the Regulations. In case of such relaxation in those specific cases, nonfulfillment of the qualification specified as per the UGC Regulations would stand condoned. As per the Scheme, it is open to the University not to comply with the provisions in the UGC Regulations and if it failed to satisfy the UGC that it had done so for good cause, it would loose its grant from the UGC. In this backdrop, the Apex Court has expressed that the Regulations are recommendatory in character. But in effect, the Regulations specified by the UGC are intended to be for the purposes of coordination and determination of standards. Thus, neither the University established or incorporated by a Central Act, a Provincial Act or a State Act nor the Colleges affiliated to such Universities can disregard the said Regulations as observed in paragraph 24 of the reported decision. The non-compliance thereof can be excused only by the UGC. If any University or the College affiliated to the University fails to comply with the norms specified in the UGC Regulations without a good cause, the consequence would be that of depriving it of the grants from the UGC.

25. The counsel for the University, has justly relied on the recent decision of the Apex Court in the case of Annamalai University represented by Registrar v. Secretary to Government, Information and Tourism Department, & Ors., reported in (2009) 4 SCC 590. In this case, the Apex Court was called upon to examine the question regarding interpretation and application of the University Grants Commission (the Minimum Standards of Instruction for the Grant of the First Degree Through Non-Formal / Distance Education in the Faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences) Regulations, 1985 framed by the University Grants Commission in exercise of its powers conferred by clause (f) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956 vis-a-vis the provisions of the Indira Gandhi National Open University Act, 1985. In paragraph 42, the Court observed thus:-

“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 subsection (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 the UGC are all-pervasive in respect of the matters specified in Clause (d) of sub-section (1) of Section 12-A and clauses (a) and (c) of sub-section (2) thereof.”

26. In view of the above, it is too late in the day to contend that it was open to the Pune University to ignore the guidelines specified by UGC in relation to the qualifications of teachers/principal. The fact that the said qualifications are not expressly provided for in the State

Universities Act or the Statutes,  and Regulations framed thereunder would not absolve the University from abiding by the qualifications so prescribed by UGC.

27. To put it differently, it would not be open to the Pune University nor the respondent No.4 College, which is affiliated to the Pune University, to make appointment on the post of Principal of the respondent No.4 College in disregard of the minimum qualification prescribed in the UGC Regulations which have the force of law. If the said respondents were to do so, would run the risk of denial of the grants by the UGC. The UGC Regulations, therefore, for that limited purpose, cannot be disregarded by the State University established under the State Act as well as the College affiliated thereto, though the same has been,held as recommendatory by the Apex Court. The edifice of the petitioner’s case, therefore, is founded on complete misreading of the decision of the Apex Court. On this finding, it is unnecessary to traverse the other contentions agitated by the petitioners.

28. Be that as it may, we find force in the submission of therespondents that the Pune University as well as the respondent No.4 College was governed by the provisions contained in the Ordinance ofPune University No.O.165. The same reads thus:

“O.165. Qualifications for Appointment to the Teaching Posts:

1. No person shall be appointed to teaching posts in the University or in any College affiliated to the University or Institution recognised by the University, if he/she does not fulfil required qualifications for the appropriate subject, as prescribed by University Grants Commission/University form to time.”

29. This Ordinance came into force with effect from 28th August, 1986. In absence of specific provision in the MU Act and the Statutes regarding minimum qualification to hold the post of Principal, the provision contained in O.165 issued by the University would come into play. The validity whereof is not the subject matter of challenge in the present proceedings. By virtue of this Ordinance, the qualification specified by UGC will be deemed to have been incorporated in the said Ordinance of the Pune University. Even for that reason, the Pune University as well as the respondent No.4 College were obliged to ensure that the appointment to the post of the Principal of the respondent No.4 College must be made from amongst the candidate possessing minimum qualification specified in the UGC Regulations of 2000. This obligation is dehors the direction issued by the State Government in the impugned GR, directing the University to adopt the norms specified by the UGC Regulations. A priori, the norms specified in the UGC Regulations regarding minimum qualification of the candidate to be appointed on the post of Principal ought to be construed as the law governing the field. On this finding, it is unnecessary to dilate on the challenge to the validity of the GR issued by the State Government dated 13th June, 2000.

30. That takes us to the next contention. The argument proceeds that from the provisions of the UGC Act as well as the UGC Regulations, it would be clear that the same can be applied only in

respect of appointments to be made in the University established or incorporated by or under a Central Act or in the institution recognised by the Commission in accordance with the Regulations made in the said Act in consultation with the University concerned. As per Clause 1(ii), the UGC Regulations would apply to every University established or incorporated under a Central Act, a Provincial Act or a State Act. Every institution includes a constituent or an affiliated college recognised by the Commission. The respondent No.4 College has relied on the communication dated 29th September, 2004, received from the UGC intimating the Registrar, University of Pune that the name of the respondent No.4 College has been included in the list of College prepared under Section 2(f) of the UGC Act under the head `Non- Government College teaching up to Bachelors Degree’. This communication is issued under the signature of Under Secretary of UGC. Going by this communication, the UGC Regulations would apply to the respondent No.4 College being recognised by the Commission under Section 2(f) of the UGC Act. In that case, no further argument is available to the petitioner and it would necessarily follow that since the petitioner does not possess the qualification specified in UGC Regulations, was ineligible for being considered to be appointed on the post of Principal of the respondent No.4 College.

31. To get over this position, the petitioner, by amending the petition, has challenged the said communication issued by the Under Secretary of UGC on the ground that the recognition accorded to the respondent No.4 College is not in conformity with the procedure prescribed by the Act. According to the petitioner, the provisions of the Act mandate that the decision of the proposal to accord recognition to any College should be that of the Commission. In the present case, the subject of grant of recognition to respondent No.4 College was never placed on the Agenda of the meetings of the Commission. No resolution in that behalf has been passed. Further, that power cannot be delegated to some other Officer of the Commission. No such express statutory provision has been made allowing delegation of the said power of the Commission. Further, there is no resolution to indicate that the power was in fact delegated to the

Under secretary.

32. The UGC on affidavit has stated that the communication Annexure A-12 dated 29th September, 2004 was issued under the signature of Under Secretary of UGC by following the procedure as was followed in other cases. In that, the proposal was first processed and after the notings made by the Joint Secretary was placed before the Chairman and upon his approval, the Under Secretary proceeded to issue the communication Annexure A-12 addressed to the Registrar, University of Pune.

33. In the first place, we may not entertain the challenge to the said UGC’s decision at the instance of the petitioner before us, relating to the recognition granted by the UGC to respondent No.4 College. We are conscious of the decision of the Apex Court cited by the Counsel for the petitioner in the case of Deepak Agro Foods vs. State of Rajasthan & Ors reported in (2008) 7 SCC 748, in particular, paragraph 17 thereof, wherein, the Apex Court has observed that all irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. It is further held that where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an

authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. We are also conscious of the purport of Section 27 of the UGC Act which enables the Commission only to delegate to its Chairman, Vice-Chairman or any of its officers, its power of general superintendence and direction over the business transacted by, or in, the Commission, including the powers with regard to the expenditure incurred in connection with the maintenance of the office and internal administration of the Commission by Regulations made by Notification in the Official Gazette. In the present case, no such Notification or Regulation has been brought to our notice. Even so, we decline to examine challenge to the said communication Annexure A-12 issued under the signature of Under Secretary of UGC for more than one reasons. Firstly, the fact that the respondent No.4 College in its advertisement in question insisted for the benchmark commensurate with the minimum qualification specified by the UGC as a result of which, the petitioner is found to be ineligible for being appointed on the post of Principal of the respondent No.4 College, that can be no basis to quash the recognition granted to the respondent No.4 College by UGC at her instance. Secondly, the consequence of interfering with the said decision at the instance of the petitioner would have perilous effect, as it would not only affect the respondent No.4 college but also other colleges who have received recognition from UGC by following the same procedure, who are not before us. Further, the effect of setting aside the  recognition accorded to the respondent No.4 college by the UGC would disrobe the respondent No.4 college from receiving grants from UGC and lastly, because it is not necessary to examine this contention in view of the conclusion already recorded by us in the earlier part of this Judgment that the Pune University having issued O.165 specifying the qualification as prescribed in the UGC Regulations, for appointment of the teaching staff, the minimum qualification specified under the UGC Regulations gets incorporated in the said Ordinance. There is nothing in the MU Act to suggest that it was not open to the Pune University to adopt such a course or for that matter, to prescribe higher qualification than the one prescribed by the UGC.

34. That takes us to the next contention. According to the petitioner, the role of the State Government is limited to matters provided in Section 8 of the MU Act. Prescribing qualification for appointment to the post of Principal is not covered by the said provision. Further, the issue regarding minimum qualification of the candidate to be appointed on the post of Principal was within the exclusive domain of the University under Section 5(9) of the MU Act. In the first place, the University itself having issued Ordinance prescribing for qualification for appointment to the teaching post being O.165, which came into force with effect from 28th August, 1986, the same would and ought to govern the field. As noticed earlier, the qualification specified in the UGC Regulations are incorporated by reference in the Ordinance (O.165) issued by the Pune University. In that case, the petitioner cannot succeed even if we were to hold that the impugned GR dated 13th June, 2000 is illegal and bad in law. Further, for the view expressed by us hitherto, it is unnecessary to dilate on this argument any further. At any rate, so far as the affiliated college is concerned, the qualification of the principal will have to be in conformity with the Ordinance issued by the University in exercise of powers under the M.U.Act, validity whereof is not in issue before us. Indeed, sub-section (8) of Section 51 provides for qualifications, etc., of teachers, officers and other employees of the University and the affiliated colleges (except those colleges or institutions maintained by the State Government or Central Government or a local authority). Ordinarily, the qualifications for appointment as principal of the affiliated college must find place in the Statutes, but, as has been held earlier, the fact that the

Statutes do not have express provision in that regard would not preclude the appointing authority, viz., respondents No. 3 and 4 (i.e., affiliated college) to provide for higher benchmark consistent with the one specified by the UGC Regulation.

35. Considering the above, in our opinion, the challenge in this petition ought to fail, as the petitioner does not fulfill the qualification of Ph.D. Degree or its equivalent, which is the benchmark specified in the advertisement issued by the Management for inviting applications from the interested candidates for appointment to the post of Principal of respondent No. 4-College.

36. Accordingly, this Petition is dismissed with costs being devoid of merit. Rule is discharged.

MRS. MRIDULA BHATKAR, J.                                                     A.M. KHANWILKAR, J.