P.SUSEELA & ORS.ETC.ETC. vs. UNIV.GRNATS COMMN.& ORS.ETC.ETC.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. _________ OF 2015 [ARISING OUT OF SLP (CIVIL) NOS.36023-36032 OF 2010] P. SUSEELA & ORS. ETC. ETC. …APPELLANTS VERSUS UNIVERSITY GRANTS COMMISSION & ORS. ETC. ETC. …RESPONDENTS WITH CIVIL APPEAL NO. __OF 2015 [ARISING OUT OF SLP (C) NO.10247 OF 2011] CIVIL APPEAL NO. __OF 2015 [ARISING OUT OF SLP (C) NO.14985 OF 2011] CIVIL APPEAL NO. __OF 2015 [ARISING OUT OF SLP (C) NO.34196 OF 2012] JUDGMENT CIVIL APPEAL NOS. __OF 2015 [ARISING OUT OF SLP (C) NOS.36362-36364 OF 2012] CIVIL APPEAL NOS. __OF 2015 [ARISING OUT OF SLP (C) NOS.38991-38992 OF 2012] CIVIL APPEAL NO. __OF 2015 [ARISING OUT OF SLP (C) NO.1529 OF 2013] CIVIL APPEAL NO. __OF 2015 [ARISING OUT OF SLP (C) NO.1817 OF 2013] 1 Page 1 CIVIL APPEAL NO. __OF 2015 [ARISING OUT OF SLP (C) NO.4619 OF 2013] CIVIL APPEAL NO. __OF 2015 [ARISING OUT OF SLP (C) NO.4925 OF 2013] CIVIL APPEAL NO. __OF 2015 [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 CIVIL APPEAL NOS. __OF 2015 [ARISING OUT OF SLP (C) NOS.3054-3055 OF 2014] CIVIL APPEAL NO.___________ OF 2015 [ARISING OUT OF SLP (C) NO.3753 OF 2014] J U D G M E N T R.F.Nariman, J. 1. Leave granted in all the special leave petitions. JUDGMENT 2. A large number of appeals are before us in which the judgments of four High Courts are assailed. The High Court of th Delhi in its judgment dated 6 December, 2010 was faced with the constitutional validity of the University Grants Commission Regulations (Minimum Qualifications Required for the Appointment And Career Advancement of Teachers in Universities and Institutions affiliated to it) (the third 2 Page 2 Amendment) Regulation 2009 under which NET/SLET is to be the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions.

violate Article 14 and are, in fact, prospective inasmuch as they apply only to appointments made after the date of the notification and do not apply to appointments made prior to that date. Along the lines of the Delhi High Court, the Madras and Rajasthan High Courts have also repelled challenges to the th aforesaid regulations vide their judgments dated 6 December, th 2010 and 13 September, 2012. On the other hand, the th Allahabad High Court in a judgment dated 6 April, 2012 has found that the said regulations were issued pursuant to JUDGMENT directions of the Central Government which themselves were issued outside the powers conferred by the UGC Act and, hence, the eligibility conditions laid down would not apply to M. st Phil. and Ph.D. degrees awarded prior to 31 December, 2009. However, a subsequent judgment of the Allahabad High Court th dated 6 January, 2014 distinguished the aforesaid judgment and upheld the self-same regulations. Whereas the Union of 3 Page 3 India is in appeal before us from the Allahabad High Court th judgment dated 6 April, 2012, M.Phil. degree holders and Ph.D. degree holders who have not yet been appointed as

the appellants before us in all the other appeals. 3. The facts necessary to appreciate the controversy in these appeals are as follows:- The University Grants Commission Act, 1956, was enacted by Parliament to make provision for the coordination and determination of standards in Universities being enacted under Entry 66 List I, Schedule VII to the Constitution of India. By Section 4 of the Act, a University Grants Commission is JUDGMENT established to carry out the functions entrusted to it by Section 12 of the Act. We are directly concerned in these appeals with two Sections of this Act, namely, Sections 20 and 26:- 20. Directions by the Central Government .—(1) In the discharge 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. 4 Page 4

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4. In exercise of the powers conferred by Section 26(1)(e) of the said Act, the UGC framed regulations in 1982 prescribing the qualification for the teaching post of Lecturer in colleges as follows:- 6 Page 6 “M. Phil. degree or a recognised degree beyond Master’s level”. In 1986, the Malhotra Committee was appointed by the UGC to examine various features of University and College education.

th said Committee report, the UGC framed regulations on 19 September, 1991 superseding the 1982 regulations and providing apart from other qualifications, clearing of the NET as a test for eligibility to become a Lecturer. Vide an amendment st dated 21 June, 1995, a proviso was added to the 1991 regulations by which candidates who have submitted their Ph.D. thesis or passed the M. Phil. examination on or before st 31 December, 1993 are exempted from the said eligibility test for appointment to the post of Lecturer. This continued till JUDGMENT 2002, the only change made being that the exemption continued qua Ph.D. thesis holders for dates that were st extended till 31 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 7 Page 7 th to the candidate possessing M.Phil. or Ph.D degrees. On 12 November, 2008, the Department of Higher Education, Ministry of Human Resources Development, Government of India,

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 been in conformity with the procedure of standardization of Ph.D. prescribed by it, and also that the degree of Ph.D. was awarded by a University or Institution Deemed to be University notified by the UGC as having already complied with the procedure prescribed under the regulations framed by the Commission for the purpose.” JUDGMENT 5. In pursuance of the said directive, the UGC rd promulgated the impugned Regulations of 2009, the 3 Amendment of which provides as follows:- “NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/ Institutions. 8 Page 8

The proviso referred to a number of new conditions relating to the maximum number of Ph.D. students at any given point of time, stringent admission criteria for a Ph.D. degree, research papers being published, the Ph.D. thesis being evaluated by at least two experts, one of whom shall be an expert from outside the State etc. th 6. This was followed by another directive dated 30 March, 2010 by the Ministry under Section 20 of the Act directing the JUDGMENT UGC as follows:- “The Ministry of Human Resource Development issued another order dated 30.3.2010 under Section 20 of the University Grants Commission Act, 1956 directing the UGC as follows: (i) That the UGC shall not take up specific cases for exemption from the application of the NET Regulations of 2009 after the said Regulations have come into force, for either specific persons or for a specific university/institution/college from the 9 Page 9 application of the UGC (Minimum Qualifications for appointment and career advancement of teachers in universities and colleges) 3rd Amendment Regulations, 2009 for appointment as Lecturer in universities/colleges/institutions; (ii) That appropriate amendment to the second proviso to clause 2 of the UGC Regulations 2000 shall be made by UGC to give full effect to the policy directions issued by the Central Government dated 12th November, 2008, within 30 days from 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.” th 7. Pursuant to this directive, on 30 June, 2010, the UGC framed Regulations of 2010, para 3.3.1 of which states: JUDGMENT “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 10 Page 10 of Assistant Professor equivalent positions in Universities/Colleges/ Institutions.” th th 8. By two resolutions dated 12 August, 2010 and 27

are prospective in nature, all candidates having M. Phil. degree th on or before 10 July, 2009 and all persons who obtained the st Ph.D. degree on or before 31 December, 2009 and had registered themselves for the Ph.D. before this date, but are awarded such degree subsequently shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. rd 9. The Central Government, however, by letter dated 3 November, 2010 informed the UGC that they were unable to JUDGMENT agree with the decision of the Commission and stated that consequently a candidate seeking appointment to the post of Lecturer/Assistant Professor must fulfill the minimum qualifications prescribed by the UGC including the minimum eligibility condition of having passed the NET test. 11 Page 11 10. Learned counsel assailing the Delhi, Madras and Rajasthan High Court judgments argued that Section 26(3) expressly entitles a regulation to be prospective but so as not to

regulation may be applicable. They, therefore, argued that both under Article 14 as well as this sub-section, since all M.Phil. and Ph.D. holders had been repeatedly assured that they would be exempt from passing the NET exam if they were such holders prior to 2009, the regulations should not be so construed as to impose the burden of this examination upon them. They further argued that under Section 26(2), regulations made in pursuance of Section 26(1)(e) and (g) do not require the previous approval of the Central Government. JUDGMENT Consequently, the impugned regulations are bad since they follow the dictate of the Central Government which is not required. Also, this would show that when it comes to qualifications of persons to be appointed to the teaching staff, the UGC is an expert body to whom alone such qualifications and consequently exemptions from such qualifications should be left to decide. They also argued that there is a violation of 12 Page 12 Article 14 in that unequals have been treated equally as those who passed their M. Phil. and Ph.D. degrees prior to 2009 fell in a separate class which had an intelligible differentia from

from time to time. They strongly relied upon the judgment of this Court in University Grants Commission v. Sadhana Chaudhary (1996) 10 SCC 536 for this proposition as well as the proposition 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 JUDGMENT 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 13 Page 13 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

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 conform to Section 20 of the Act and under Section 20 of the Act the Central Government is given the power to give directions on questions of policy relating to national purposes which shall guide the Commission in the discharge of its functions under th the Act. It is clear, therefore, that both the directions of 12 th November, 2008 and 30 March, 2010 are directions made JUDGMENT pertaining to questions of policy relating to national purposes inasmuch as, being based on the Mungekar Committee Report, the Central Government felt that a common uniform nationwide test should be a minimum eligibility condition for recruitment for the appointment of Lecturer/Assistant Professors in Universities/Colleges/Institutions. This is for the obvious reason that M. Phil. degrees or Ph.D. degrees are granted by 14 Page 14 different Universities/Institutions having differing standards of excellence. It is quite possible to conceive of M.Phil/ Ph.D. degrees being granted by several Universities which did not

matter of policy that the appointment of Lecturers/ Assistant Professors in all institutions governed by the UGC Act (which are institutions all over the country), the need was felt to have in addition a national entrance test as a minimum eligibility condition being an additional qualification which has become necessary in view of wide disparities in the granting of M. Phil./ Ph.D. degrees by various Universities/ Institutions. The object sought to be achieved by these directions is clear: that all Lecturers in Universities/Colleges/Institutions governed by the JUDGMENT UGC Act should have a certain minimum standard of excellence before they are appointed as such. These directions are not only made in exercise of powers under Section 20 of the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act. It is clear, therefore, that any regulation made 15 Page 15 under Section 26 must conform to directions issued by the Central Government under Section 20 of the Act.

define the qualifications required of persons to be appointed to the teaching staff of a University, the Government has no role to play in such matters and cannot dictate to the Commission. This argument does not hold water 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 JUDGMENT 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 16 Page 16 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,

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 so as to prejudicially affect the interests of any person to whom such regulation may be applicable. In order to appreciate this contention, it is necessary to distinguish between an existing right and a vested right. This distinction was made with great felicity in Trimbak Damodhar Rajpurkar v. Assaram Hiraman JUDGMENT Patil , 1962 Suppl. 1 SCR 700. In that case a question arose as to whether an amendment made to Section 5 of the Bombay Tenancy and Agricultural Lands Amendment Act could be said to be retrospective because its operation took within its sweep existing rights. A bench of five Hon’ble Judges of this Court held that Section 5 had no retrospective operation. This Court held: 17 Page 17

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19 Page 19 Act was no more than this that it imposed a new and additional limitation on the right of the landlord to obtain possession from his tenant. It was observed in that judgment that “a notice under Section 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub-section 2( a ) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures; that is the date on which the tenancy stands terminated”. 15. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right JUDGMENT to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such 20 Page 20 minimum 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,

us must fail. 16. One of the learned counsel for the petitioners argued, based on the language of the direction of the Central th Government dated 12 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 JUDGMENT 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 21 Page 21 education. Keeping this object in mind, a minimum eligibility condition of passing the national eligibility test is laid down. True, there may have been exemptions laid down by the UGC

policy feels that any exemption would compromise the excellence of teaching standards in Universities/Colleges/ Institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this – in fact it is a core function of the UGC to see that such standards do not get diluted. 18. The doctrine of legitimate expectation has been dealt with in two judgments of this Court as follows: In Union of India v. International Trading Company (2003) 5 SCC 437, it was held: JUDGMENT “23. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, 22 Page 22

19. Similarly, in Sethi Auto Service Station v. DDA (2009) 1 SCC 180, it was held:- “33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority 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. JUDGMENT 23 Page 23

of time, being based on an intelligible differentia. An Article 14 JUDGMENT challenge to the said exemption was, therefore, repelled. Even assuming that the said judgment would continue to apply even after the 2009 Regulations, a legitimate expectation must always yield to the larger public interest. The larger public interest in the present case is nothing less than having highly qualified Assistant Professors to teach in UGC Institutions. 24 Page 24 Even if, therefore, the private appellants before us had a legitimate expectation that given the fact that the UGC granted them an exemption from the NET and continued to state that

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26 Page 26 NET/SLET/SET qualified, if they have been awarded Ph.D degree with any six conditions out of 11 recommended by the UGC prior to 31.12.2009. The writ petition is allowed. The petitioners are held eligible for consideration for appointment as Lecturer for guest faculty in the Department of Sanskrit of the University, provided they satisfy any of the six tests out of eleven, laid down by the UGC, and which are made essential for award of Ph.D degree under the 3rd Amendment of the Regulations of 2009. It will be open to the University to consider from the material produced by the petitioners, that they satisfy six out of eleven tests recommended by the University Grants Commission for award of their Ph.D.” 22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient JUDGMENT to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government. 27 Page 27 23. The Allahabad High Court adverted to an expert committee under the Chairmanship of Professor S.P. Thyagarajan which laid down that if six out of eleven criteria laid

granted a Ph.D. degree, then such Ph.D. degree should be sufficient to qualify such person for appointment as Lecturer/Assistant Professor without the further qualification of having to pass the NET test. The UGC itself does not appear to have given effect to this recommendation of the Thyagarajan Committee. However, the High Court thought it fit to give effect to this Committee’s recommendation in the final directions issued by it. When the UGC itself has not accepted the recommendations of the said Committee, we do not understand JUDGMENT how the High Court sought to give effect to such recommendations. We, therefore, set aside the Allahabad High th Court judgment dated 6 April, 2012 in its entirety. 24. In SLP (C) NO.3054-3055/2014, a judgment of the same th High Court dated 6 January, 2014 again by a Division Bench arrived at the opposite conclusion. This is also a matter which causes us some distress. A Division Bench judgment of the 28 Page 28 same High Court is binding on a subsequent Division Bench. The subsequent Division Bench can either follow it or refer such judgment to the Chief Justice to constitute a Full Bench if it

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. JUDGMENT 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, 29 Page 29 however, not impact the fact that the writ petitions in the 2014 judgment have been dismissed. They stand dismissed having regard to the reasoning in the judgment delivered by us today.

Petition Nos. 286-287 of 2014 which are disposed of as having become infructuous. The other appeals from the Delhi, Madras and Rajasthan High Courts are, consequently, also dismissed. There shall be no order as to costs. …………………….J. (T.S. Thakur) …………………….J. (R.F. Nariman) New Delhi; March 16, 2015. JUDGMENT 30 Page 30