KALYANI MATHIVANAN Vs. K V KEYARAJ AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 5946-5947 of 2014, Judgment Date: Mar 11, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5946-5947 OF 2014
KALYANI MATHIVANAN ... APPELLANT
VERSUS
K.V. JEYARAJ AND ORS. ... RESPONDENTS
WITH
CIVIL APPEAL NOS.6455-6456 OF 2014 AND
CIVIL APPEAL NOS.8602-8603 OF 2014.
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J
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 eligibility criteria stipulated by
the UGC Regulations of Minimum Qualifications for Appointment of Teachers
and other Academic Staff in Universities and Colleges and Measures for the
Maintenance of Standards in Higher Education 2010 (hereinafter referred to
as the 'UGC Regulations, 2010') for appointment as Vice-Chancellor and non-
fulfilment of such eligibility criteria cannot be completely white washed
on the specious plea that the University Grants Commission Regulations,
2010 are not mandatory. The High Court set aside the order of appointment
of the appellant-Dr. Kalyani Mathivanan and allowed the writ petitions.
3. The factual matrix of the case is as follows:
The post of Vice-Chancellor in Madurai Kamaraj University
(hereinafter referred to as the 'University') fell vacant in the year 2011-
2012 and the Government constituted a search Committee to appoint a
suitable candidate. All together names of 104 persons were considered by
the search Committee and finally three persons namely (1) Dr. R. Jayaraman,
Professor of Management Studies (Retd.), Member Secretary, Centre for
Entrepreneurship Development, Madurai, (2)Dr. Kalyani Mathivanan, Head of
the Department of English, Ethiraj College for Women, Chennai and (3)Dr. T.
Ramasamy, Professor of History (on lien) Registrar, Bharathidasan
University, Tiruchirapalli were short listed. On the basis of the
recommendation of the search Committee, the appellant-Dr. Kalyani
Mathivanan was selected and appointed as Vice-Chancellor by G.O.(1D)No.80,
Higher Education (H2)Department, Government of Tamil Nadu dated 9th April,
2012 for a period of three years with effect from the date of assumption of
office.
4. Challenging the selection of the appellant-Dr. Kalyani Mathivanan,
two separate writ petitions were preferred by Dr. K.V. Jeyaraj, and Dr. I.
Ismail, who were aspirants to the said post-respondents herein. The said
challenge was mainly on the ground that as per UGC Regulations, 2010, the
person to be appointed as Vice-Chancellor, should be a distinguished
academician, with a minimum of 10 years experience as Professor in a
University system or 10 years of experience in an equivalent position in a
reputed research/academic organization and Dr. Kalyani Mathivanan does not
satisfy the said criteria. The High Court took up both the writ petitions
together for disposal and by the judgment 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
there shall be only three designations in respect of Teachers in
Universities and Colleges, namely, Assistant Professors, Associate
Professors and Professors. It was further ordered that the posts of
Professors shall be created for under-Graduate and Post-Graduate Colleges
on the basis of guidelines prescribed therein. However, this direction has
not been implemented till date in the State of Tamil Nadu.
6. On behalf of the appellant-Dr. Kalyani Mathivanan, it was further
contended that she is qualified for appointment as Vice-Chancellor of the
University as per the Madurai Kamaraj University Act, 1965 (hereinafter
referred to as the 'University Act, 1965'). It was further contended that
the UGC Regulations, 2010 are not mandatory but directory and cannot
override the provisions of the University Act, 1965.
7. The High Court by the impugned order framed the following questions
for consideration, namely:
(i) whether the post of Associate Professor held by the appellant-Dr.
Kalyani Mathivanan in a private aided College can be considered as an
equivalent post, satisfying requirement of paragraph 7.3.0 of the UGC
Regulations, 2010;
(ii) whether the prescriptions contained in paragraph 7.3.0 of the Annexure
to the UGC Regulations, 2010 is mandatory or directory; and whether the
U.G.C. Regulation, 2010 would override the provisions of the University
Act, 1965 and the Statute framed thereunder.
8. The High Court after taking into consideration the qualification laid
down in the Annexure to the UGC Regulations, 2010 answered the first
question in negative, against the appellant-Dr. Kalyani Mathivanan.
The High Court also rejected the submission that the Vice-Chancellor need
not be a Professor or teacher and observed as follows:
"44.Therefore, it is not possible to accept contention that drawing
inspiration from the past, one need not be a Professor or even a teacher to
become a Vice-Chancellor. As a matter of fact, several committees were
constituted in the past about 70 years by the Government of India, to
improve the standards of Universities. Recently, a study was conducted by
two persons by name K. Sudha Rao, Vice-Chancellor, Karnataka State Open
University, Mysore and Advisor ASERF and Mithilesh Kr. Singh, Senior
Fellow, (ASERF), New Delhi analysing the different methods adopted for the
appointment of Vice-Chancellor in Indian Universities 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 Parujg 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 scholarship and pursuit of
truth.(Kothari Commission 1964-66:334)
A Vice-Chancellor should be a person with vision and (have) qualities of
academic leadership with ability for administration. He should command high
respect among all sections of the society. The Vice-Chancellor should be a
distinguished academic...(who) has commitment to the values for which the
Universities stand....He must have the ability to provide leadership to the
University by his academic worth, administrative competence and moral
stature,. (Kothari Commission 1964-66:334)
Parikh Committee was not in favour of appointing Government officials as
VCs. Quoting the Kothari Commission Report, the Parikh Committee mentions
that the Vice-Chancellor is the most important functionary in a University
not only on the administrative side but is also charged with the
responsibility of creating the right atmosphere for teachers and students.
The Universities need distinguished and dignified persons as VCs and it is
necessary to ensure that they are treated with dignity and regard, which
the office merits.(Ramlal Parikh Committee 1993:15).
The Vice-Chancellor is the most important functionary in a University, not
only on the administrative side but also for securing the right atmosphere
for the teachers and the students to do their work effectively and in the
right spirit. (Report of the Committee on Model Act for Universities
1964:11)
The Vice-Chancellor being the principal executive and academic officer of
the University, should exercise general supervision and control over the
affairs of the University and give effect to the decision of all its
authorities. He shall be the ex-officio Chairman of the Court, Executive
Council, Academic Council, Finance Committee and Selection Committees and
shall, in the absence of the Chancellor preside at any convocation of the
University for conferring degrees. It shall be the duty of the Vice-
Chancellor to see that the provisions of the Act, Statutes and Ordinances
and Regulations are fully observed and he should have the power necessary
for the discharge of this duty. (Gajendragadkar Committee on the Governance
of the Unviersity, 1971:60).
In accordance with Regulation 1 for the office of VC (Statutes and
Ordinances of Cambridge University, June 2002:655)...VC is of a stature and
his/her presence commensurate to lead a distinguished academic 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 vs. 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, 2010 is directory in nature. In the impugned judgment Madras
High Court observed as follows:
"46.Therefore, with great respect, we are unable to subscribe to the view
expressed by the Bombay High Court in paragraph 13 of the decision in
Suresh Patikhede that the Vice-Chancellor need not be considered as a
member of the academic teaching staff.
10. The High Court further observed:
"48. If University Grants Commission Regulations, 2010 will have to be
given effect to (subject to our finding on the next two facets of question
No.2), the Vice-Chancellor should actually be a distinguished academician.
Today, Albert Einstein cannot be appointed as the Vice-Chancellor of any
University (at least in India) unless he fulfills the qualifications
prescribed by University Grants Commission, the reason being that after a
legislative enactment lays down the objective criteria, there is no place
for subjective satisfaction.
49. We do not mean to say that the fourth respondent is not an academician.
She has always been a teacher and Mr. A.L. Somayaji, learned Advocate
General took great pains to highlight the academic and other achievements
of the fourth respondent. But we are solely on the question as to whether
we could concur with the opinion of the Bombay High Court that a Vice-
Chancellor is not part of the teaching staff. There may be a hair splitting
difference between being part of an academic stream and being part of the
teaching faculty. But it is not possible for us to accept the
interpretation that one can be the academic head but cannot be considered
as part of the teaching staff."
11. For determination of the second question, the High Court formulated
three issues as follows:
"33. In our considered view, the second question before us, actually
has three facets namely:-
Whether the post of Vice-Chancellor is not to be considered as part of the
teaching staff;
Whether the Madurai Kamaraj University Act and the Statutes issued
thereunder prescribe a different set of qualifications for the post of Vice-
Chancellor than those prescribed by the University Grants Commission
Regulations, 2010 leading to a conflict; and
Whether in the event of a conflict between the State enactment and the
University Grants Commission Regulations, 2010, the provisions of the State
enactment would prevail."
12. The High Court held that the post of Vice-Chancellor 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
Civil Procedure Code. 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 Reader in law in the Oxford University for seven
years. Great Jurists, both (Lawyers and Judges) such as Sir Subramanya
Ayyar, Sir P.S.Sivaswamy Ayyar, Justice F.D. Oldfield were among a few who
became the Vice-Chancellors of Madras University, ever since its inception
about 150 years. But today, it is not possible to continue with the same
legacy or two reasons, namely:-
that we do not have such tall men of great eminence and
that today the field is regulated by law."
14. The High Court also relied on an Article titled 'Why Socrates should
be in the Boardroom in Research Universities', published in 2010 by Amanda
H. Goodall, for determining the case and observed as follows:
"47. In an interesting Article, titled Why Socrates should be in
the Boardroom in Research Universities, published in 2010 by Amanda H.
Goodall, Leverhulme Fellow, Warwick Business School, the author points out
two contrasting events that happened in 2003 and 2004. It is common
knowledge that Cambridge University came into existence in 1209 and almost
about 800 years later, a distinguished Anthropologist, by name Alison
Richard, was appointed as the 344th President or Vice-Chancellor of
Cambridge. She was an acclaimed academician. In contrast to what happened
at Cambridge in 2003, Oxford University appointed in 2004, a person by name
John Hood, who was not an academic but was only a businessman. He became
the first head of Oxford University, ever since the year 1230, to be
elected to the Vice-Chancellorship from outside the University's current
academic body. The paper authored by Amanda Goodall considered the question
as to why Cambridge and Oxford chose such different individuals to lead
their ancient and reputed institutions. The central theme of the paper was
as to whether there was a relationship between University performance and
leadership by an accomplished researcher. Eventually, after analysing the
statistics from about 100 Universities throughout the world, the author
came to the conclusion, supported by evidence that Research Universities
should be led by top scholars. The conclusions reached by the author could
be summarized as follows:
(i)That the best Universities in the world are led by more
established scholars;
(ii) That scholar-leaders are considered to be more credible leaders
in Universities, commanding greater respect from their academic 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 were taken before the High Court.
17. The contesting respondent No.1-Dr. K.Y. Jeyaraj has taken the
following pleas:
(i) The words "Teaching Staff of the University" occurring in Clause (e)
of Section 26(1) of UGC Act, 1956 are words of wide import. Section 2(n) of
the Madurai Kamaraj University Act defines Teachers of the University, as
persons appointed by the University to give instruction on its behalf. Any
person appointed to the University including the Vice-Chancellor, other
than mere administrative staff can be required by the University to give
instructions on its behalf. Thus, teaching staff should include those who
are appointed to contribute and who can be called upon to contribute to or
assigned to contribute to educational activities of the University in its
functional sense.
(ii) The UGC regulations having been perceived to be for the advancement
and promotion of University education, will qualify as a high principle of
persuasive public policy which would commend itself for acceptance by the
University. It is a matter of fact that no University Act has provided for,
or enacted in respect of qualifications for appointment of Vice-
Chancellors. To the extent that such a matter is not occupied by State
University legislation falling under Entry 25 of the concurrent list, it
would be subject to all provisions enacted including regulations, traceable
to Entry 66, List - I. This Hon'ble Court has declared that regulations
made under statutes traceable to Entry 66 would also fall within the scope
of Entry 66 and would override legislation under Entry 25.
(iii) The UGC Regulations are persuasive principles of public policy
relevant for the promotion and advancement of University and higher
education. Consequently in the absence of any higher standards and in the
absence of any other relevant guidelines, the appointing authority cannot
act in disregard of the UGC guidelines. The selection process will be a
process void for lack of any standard. Acting in this regard would thus be
in frustration of the object and purposes of UGC Act as well as the
University legislation itself.
(iv) A person appointed to a public office without reference to any
standards or norms or criteria, has no right to hold such an office. Since
all appointments to all public offices created by statutes have to be made
on the basis of a norm, standard or a criterion, 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.
For determination of these issues, it is necessary to notice the relevant
provisions of University Commission Act, 1956 (hereinafter referred to as
the, 'UGC Act, 1956'), UGC Regulations, 2010, the University Act, 1965 and
the statutes framed thereunder.
University Grants Commission Act, 1956:
UGC Act, 1956 was enacted to make provisions for the co-ordination
and determination of standards in Universities and for that purpose, to
establish a University Grants Commission.
Section 12 deals with the 'function of the Commission', relevant of which
is quoted hereunder:
"12. It shall be the general duty of the Commission to take, in
consultation with the Universities or other bodies concerned, all such
steps as it may think fit for the promotion and co-ordination of University
education and for the determination and maintenance of standards of
teaching, examination and research in Universities, and for the purpose of
performing its functions under this Act, the Commission may-
inquire into the financial needs of Universities;
..............................
..............................
recommend to any University the measures necessary for the improvement of
University education and advise the University upon the action to be taken
for the purpose of implementing such recommendation;
to (i)...........................
(j) perform such other functions as may be prescribed or as may be deemed
necessary by the Commission for advancing the cause of higher education
in India or as may be incidental or conducive to the discharge of the above
functions."
Section 14 deals with 'consequences of failure of Universities to
comply with recommendations of the Commission' which is as follows:
14. If any University 1[grants affiliation in respect of any course of
study to any college referred to in subsection (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, 2[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 clause (f) or clause (g) of section
26,] the Commission, after taking into consideration the cause, if any,
shown by the University 3[for Such failure or contraventions may withhold
from the University the grants proposed to be made out of the Fund of the
Commission."
20. Another relevant provision with which we are concerned is Section 26
- 'power to make regulations'. 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-
to (d) x x x x x
"(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;"
x x x x
"(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 the session immediately following the session, or the
successive sessions aforesaid, both Houses agree in making any modification
in the rule or regulation or both Houses agree that the rule or regulation
should not be made, the rule or regulation shall thereafter have effect
only in such modified form or be of no effect, as the case may, be; so,
however, that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule or
regulation."]
[No rule made or purporting to have been made,
with retrospective effect, under section 25 of the principal Act before the
commencement of this Act shall be deemed to have been invalid or ever to
have been invalid merely on the round that such rule was made with
retrospective effect and accordingly every such rule and every action taken
or thing done thereunder shall be as valid and effective as if the
provisions of section 25 of the principal Act, as amended by this Act, were
in force at all material times when such rule was made or action or thing
was taken or done.]"
22. From the aforesaid provisions, we find that the University Grants
Commission has been established for the determination of standard of
Universities, promotion and co-ordination of University education, for the
determination and maintenance of standards of teaching, examination and
research in Universities, for defining the qualifications regarding the
teaching staff of the University, maintenance of standards etc. For 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, we hold that 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. (See Section 14)
23.UGC Regulations, 2010 and Annexure enclosed therein
For the appointment and career advancement of teachers in the
Universities and Institutions affiliated to it UGC 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
Advancement Scheme for teachers and equivalent positions including the post
of Assistant Professors/Associate Professors/Professors in Universities and
Colleges were intimated. Pay scales of Pro-Vice-Chancellor/Vice-Chancellor
were also mentioned therein. It was intimated that the said Scheme may be
extended to the Universities, Colleges and other higher educational
institutions coming under the purview of State legislature, provided State
Governments wish to adopt and implement the Scheme subject to the terms and
conditions mentioned therein.
24. In view of the aforesaid letter No.1-32/2006-U.II/U.I(i), dated 31st
December, 2008 issued by the Government of India and in exercise of the
powers conferred under clause (e) and (g) of sub-section (1) of Section 26
of the UGC Act, 1956, UGC enacted Regulations, 2010 in supersession of the
UGC Regulations, 2000. It was published in the Gazette of India on 28th
June, 2010 and came into force with immediate effect. Relevant portion of
the said Regulations is as follows:
"UGC REGULATIONS
ON MINIMUM QUALIFICATIONS
FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND
COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION
2010
To be published in the gazette of India
Part III Sector 4
University Grants Commission
Bahadur Shah Zafar Marg
New Delhi-110002.
No.F.3-1/2009 28 June, 2010
In exercise of the powers conferred under clause (e) and (g) of sub-section
(1) of Section 26 of University Grants Commission Act, 1956 (3 of 1956),
and in pursuance of the MHRD O.M.No.F.23-7/2008-IFD dated 23rd October,
2008, read with Ministry of Finance (Department of Expenditure) O.M.No.F.1-
1/2008-IC dated 30th August, 2008, and in terms of the MHRD Notification
No.1-32/2006-U.II/U.I(1) issued on 31st December, 2008 and in supersession
of the University Grants Commission (minimum qualifications required for
the appointment and career advancement of teachers in Universities and
Institutions affiliated to it)Regulations, 2000, issued by University
Grants Commission vide Regulation No. F.3-1/2000 (PS) dated 4th April,
2000, together with all amendments made therein from time to time, the
University Grants Commission hereby frames the following Regulations,
namely:-
1. Short title, application and commencement:
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.
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 notwithstanding anything contained in these
Regulations, in the event any candidate became eligible for promotion under
Career Advancement Scheme prior to 31st December, 2008, the promotion of
such a candidate under Career Advancement Scheme shall be governed by the
University Grants Commission (Minimum Qualifications Required for the
Appointment and Career Advancement of Teachers in Universities and
institutions affiliated to it) Regulations, 2000 notified vide
Notification No. F.3-1/2000(PS) dated 4th April, 2000, as amended from time
to time, read with notifications and guidelines issued by the University
Grants Commission (UGC) from time to time, in this regard.
The Minimum Qualifications for appointment and other service conditions of
University and College teachers, Librarians and Directors of Physical
Education and Sports as a measure for the maintenance of standards in
higher education, shall be as provided in the Annexure to these
Regulations.
3.Consequences of failure of the Universities to comply with the
recommendations of the Commission, as provision of Section 14 of the
University Grants Commission Act, 1956:
If any University grants affiliation in respect of any course of study to
any college referred to in sub-section(5) of Section 12-A in contravention
of the provisions of the sub-section, or fails within a reasonable time to
comply with any recommendations made by the Commission under Section 12 or
Section 13, or contravenes the provisions of any rule made under clause
(f) of sub-section (2) of Section 25 or of any regulations made under
clause (e) or clause (f) or clause (g) of Sub-section (1) of Section 26,
the Commission after taking into consideration the cause, if any, shown
by the University for such failure or contravention, may withhold from the
university the grants proposed to be made out of the fund of the
Commission.
Secretary."
25. Annexure to UGC Regulations, 2010 prescribes the minimum
qualifications for appointment and other service conditions of University
and College Teachers, Librarians, Directors of Physical Education and
Sports.
Regulation 2.0.0 relates to pay scales, pay fixation and age of
superannuation, etc. Regulation 7.0.0. relates to selection of Pro-Vice-
Chancellor/Vice-Chancellor of Universities. In Regulation 7.3.0. standards
to be followed and qualifications necessary for selection to the post 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 UNIVESITEIS AND COLLEGES AND MEAUSRES
FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATOIN, 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, PAYFIXATION 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 Development (Department of Education), as contained in
Appendix-I.
xxx xxx xxx xxx
2.3.1. The revised scales of pay and age of superannuation as provided
in Clause 2.1.0 above, may also be extended to Universities, institutions
coming under the purview of the State Legislature and maintained by the
State Governments, subject to the implementation of the scheme as a
composite one in adherence of the terms and conditions laid down in the
MHRD notifications provided as Appendix I and in the MHRD letter No.F.1-
7/2010-U II dated 11 May, 2010 with all conditions specified by the UGC in
the Regulations and other Guidelines.
xxx xxx xxx xxx xxx
7.0.0.SELECTION OF PRO-VICE-CHANCELLOR/VICE - CHANCELLOR OF
UNIVERSITIES:
7.1.0. PRO-VICE-CHANCELLOR:
The Pro-Vice-Chancellor may be a whole time Professor of the University and
shall be appointed by the Executive Council on the recommendation of Vice-
Chancellor.
7.2.0.The Pro-Vice-Chancellor shall hold office for a period which is co-
terminus with that of Vice-Chancellor. However, it shall be the prerogative
of the Vice-Chancellor to recommend a new Pro-Vice-Chancellor to the
Executive Council, during his tenure. These Regulations, for selection of
Pro- Vice- Chancellor shall be adopted by the concerned University through
amendment of their Act/Statute.
7.3.0. VICE-CHANCELLOR:
Persons of the highest level of competence, integrity, morals and
institutional commitment are to be appointed as Vice-Chancellors. The Vice-
Chancellor to be appointed should be a distinguished academician, with a
minimum of ten years of experience as Professor in a University system or
ten years of experience in an equivalent position in a reputed research and
/ or academic administrative organization.
The selection of Vice-Chancellor should be through proper
identification of a Panel of 3-5 names by a Search Committee through a
public Notification or nomination or a talent search process or in
combination. The members of the above Search Committee shall be persons of
eminence in the sphere of higher education and shall not be connected in
any manner with the University concerned or its colleges. While preparing
the panel, the search committee must give proper weightage to academic
excellence, exposure to the higher education system in the country and
abroad, and adequate experience in academic and administrative governance
to be given in writing 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 India, Ministry of Human Resource Development,
Department of Higher Education, New Delhi has been appended as Appendix I
and is part of the UGC Regulations, 2010. The relevant portion of the said
letter is quoted below:
"APPENDIX I
No.1-32/2006-U.II/U.I(i)
Government of India
Ministry of Human Resource Development
Department of Higher Education
New Delhi, dated the 31St December, 2008
To
The Secretary,
University Grants Commission,
Bahadur Shah Zafar Marg, New Delhi - 110 002.
Subject: 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.
Sir,
I am directed to say that the Government of India have decided, after
taking into consideration the recommendations made by the University Grants
Commission (UGC) based on the decisions taken at the meeting of the
Commission held on 7-8 October 2008, to revise the pay scales of teachers
in the Central Universities. The revision of pay scales of teachers shall
be subject to various provisions of the Scheme of revision of pay scales as
contained in this letter, and Regulations to be framed by the UGC in this
behalf in accordance with the Scheme given below. The revised pay scales
and other provisions of the Scheme are as under:-
1. General
(i) There shall be only three designations in respect of teachers in
universities and colleges, namely, Assistant Professors, Associate
Professors and Professors. However, there shall be no change in the present
designation in respect of Library and Physical Education Personnel at
various levels.
(ii) No one shall be eligible to be appointed, promoted or designated as
Professor, unless he or she possesses a Ph.D. and satisfies other academic
conditions, as laid downy the University Grants Commission (UGC) from time
to time. This shall, however, not affect those who are already designated
as 'Professor'.
(iii) The pay of teachers and equivalent positions in Universities and
Colleges shall be fixed according to their designations in two pay bands of
Rs. 15,600 - Rs. 39,100 and Rs. 37,400 - Rs. 67,000 with appropriate
"Academic Grade Pay" (AGP in short). Each Pay Band shall have different
stages of Academic Grade Pay which shall ensure that teachers 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 Rs. 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 by the University. NET shall not be
required for such Masters' programmes in disciplines for which there is no
NET.
2. Revised Pay Scales, Service conditions and Career Advancement Scheme for
teachers and equivalent positions:
The pay structure for different categories of teachers and equivalent
positions shall be as indicated below:-
Assistant Professor/Associate Professors/ Professors in Colleges and
Universities.
3. Pay Scales of Pro Vice-Chancellor / Vice-Chancellor of Universities:
(i) Pro-Vice-Chancellor
The posts of Pro-Vice-Chancellor shall be in the Pay Band of Rs.37,400 -
Rs. 67,000 with AGP of Rs. 10,000 or Rs. 12,000, as the case may be, along
with a Special Allowance of Rs.4,000 per month, subject to the condition
that the sum total of pay in the Pay Band, the Academic Grade Pay and the
Special Allowance shall not exceed Rs. 80,000.
(ii) Vice-Chancellor
The posts of Vice-Chancellor shall carry a fixed pay of Rs. 75,000 along
with a Special Allowance of Rs. 5,000 per month.
8. Other terms and conditions:
(a) Increments:
xxx xxx xxx xxx
xxx xxx xxx xxx
(p) Applicability of the Scheme:
(i) This Scheme shall be applicable to teachers and other equivalent cadres
of Library and Physical Education in all the Central Universities and
Colleges there-under and the Institutions Deemed to be Universities whose
maintenance expenditure is met by the UGC. The implementation of the
revised scales shall be subject to the acceptance of all the conditions
mentioned in this letter as well as Regulations to be framed by the UGC in
this behalf. Universities implementing this Scheme shall be advised by the
UGC to amend their relevant statutes and ordinances in line with the UGC
Regulations within three months from the date of issue of this letter.
xxx xxx xxx xxx
From paragraph 8(p)(i) and (v) of Appendix-I dated 31st December,
2008 read with Regulation 7.4.0 we find that the Scheme of regulation is
applicable to teaching staffs of all Central Universities and Colleges
thereunder and the institutions deemed to be Universities whose maintenance
expenditure is met by the UGC. However, the Scheme under UGC Regulations,
2010 is not applicable to the teaching staffs of the Universities, Colleges
and other higher educational institutions coming under the purview of State
Legislature, unless State Government wish to adopt 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 stipulates the Officers of the University. The said Section is as
follows:
"Section 8.Officers of the University.- The University shall consist of the
following officers, namely:-
(1)The Chancellor;
(2)The Pro-Chancellor;
(3)The Vice-Chancellor;
(4)The Registrar; and
(5)Such other persons as may be
declared by the statutes to be
officers of the University."
Section 9 relates to Chancellor, Section 10 relates to Pro-Chancellor
and Section 11 relates to the Vice-Chancellor. The said Sections are as
follows:
"Section 9.The Chancellor.-(1) The Governor of Tamil Nadu shall be the
Chancellor of the University. He shall, by virtue of his office, be the
head of the University and the President of the Senate and shall, when
present, preside at meetings of the Senate and at any convocation of the
University.
(2) The Chancellor shall exercise such powers as may be conferred on
him by or under this Act.
(3) Where power is conferred upon the Chancellor to nominate persons
to authorities, the Chancellor shall, to the extent necessary, nominate
persons to represent interests not otherwise adequately represented.
Section 10. The Pro-Chancellor - (1)The Minister in-charge of the portfolio
of education in the State of Tamil Nadu shall be the Pro-Chancellor of the
University.
(2) In the absence of the Chancellor, or during the Chancellor's
inability to act, the Pro-Chancellor shall exercise all the powers of the
Chancellor.
Section 11.The Vice-Chancellor - (1) Every appointment of the Vice-
Chancellor shall be made by the Chancellor from out of a panel of three
names recommended by the Committee referred to in sub-section (2).Such
panel shall not contain the name of any member of the said Committee.
Provided that if the Chancellor does not approve any of the persons in the
panel so recommended by the Committee, he may take steps to constitute
another Committee, in accordance with sub-section (2), to give a fresh
panel of three different names and shall appoint one of the persons named
in the fresh panel as the Vice-Chancellor.
(2)For the purpose of sub-section (1), the Committee shall consist of three
persons of whom one shall be nominated by the Chancellor.
Provided that the person so nominated shall not be a member of any of the
authorities of the University.
(3) The Vice-Chancellor shall hold office for a period of three years and
shall be eligible for re-appointment for not more than two successive
terms.
(4)When any termporary 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
Syndiate 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 address any meeting of any authority of the University
but shall not be entitled to vote there at unless he is a member of the
authority concerned.
(2)It shall be the duty of the Vice-Chancellor to ensure that the
provisions of this Act, the statutes, ordinances and regulations are
observed and carried out and he may exercise all powers necessary for this
purpose.
(3)The Vice-Chancellor shall have power to convene meetings of the Senate,
the Syndicate, the Academic Council and the Finance Commtitee.
(4) (a) In any emergency which in the opinion of the Vice-Chancellor
requires that immediate action should be taken, he may take such action
with the sanction of the Chancellor or the Pro-Chancellor, as the case may
be, and shall as soon as may be thereafter report his action to the officer
or authority who or which would have ordinarily dealt with the matter.
(b)When action taken by the Vice-Chancellor under this sub-section affects
any person in the service of the University, such person shall be entitled
to prefer an appeal to the Syndicate within thirty days from the date on
which he has notice of such action.
(5) The Vice-Chancellor shall give effect to the orders of the Syndicate
regarding the appointment, suspension and dismissal of the teachers and
servants of the University and shall exercise general control over the
affairs of the University.
(6) The Vice-Chancellor shall exercise such other powers as may be
prescribed."
The above provisions indicate that the Vice-Chancellor is the academic head
[Section 12(1)], heads the Academic Council, and has general control over
teaching and examination within the University and is responsible for the
maintenance of the standards thereof.
28. Chapter V of the University Act deals with the 'Academic Council',
the Faculties, the Boards and Studies, the Finance Committee and other
Authorities. Section 23 relates to the Academic Council and Section 24
deals with the Constitution of the Academic Council. The relevant portion
of the said provisions reads as under:
" CHAPTER V
THE ACADEMIC COUCIL, THE FACULTIES, THE BOARDS OF STUDIES, THE FINANCE
COMMITTEE AND OTHER AUTHORITIES.
Section 23.The Academic Council.- The Academic Council shall be the
academic authority of the University and shall, subject to the provisions
of this Act and the statutes, have the control and general regulation 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-
The Director of Higher Education, Madras;
The Director of Secondary Education, Madras;
The Director of Technical Education, Madras;
(3-A) The Director of Medical Educatoin;
The heads of University Departments of Study and Research;
Members of the Syndicate who are not otherwise members of the Academic
Counci;
xxx xxx xxx 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 [Section 32(d)].
30. The word statutes with respect to University means law of the
University. In the present context it means the provisions of the
University Act and the statutes, ordinances and regulations framed therein.
Chapter V of the Statutes of Madurai Kamaraja University relates to Vice-
Chancellor. Clause 2(1) of Chapter V stipulates that Vice-Chancellor should
be a whole-time Officer of the University who would be the academic head
and principal executive officer of the University with powers and duties
mentioned therein. Relevant portion of the provision reads as follows:
"CHAPTER V
THE VICE-CHANCELLOR
1. The Vice-Chancellor shall be appointed by the Chancellor from out of
a panel of 3 names recommended by the Committee referred to in Statute 5
hereunder. Such panel shall not contain the name of any member of the said
Committee.
(Act S.11 The Vice-Chancellor)
Provided that if the Chancellor does not approve any of the persons in the
panel so recommended by the Committee, he may take steps to constitute
another Committee, in accordance with Statue 5, to give a fresh panel of
three different names and shall appoint one of the persons named in the
fresh panel as the Vice-Chancellor.
2.(1) The Vice-Chancellor shall be a whole-time Officer of the University.
He shall be the academic head and Principal executive officer of the
University.
(2) The Vice-Chancellor shall in the absence of the Chancellor and the
Pro-Chancellor preside at the meetings of the Senate, and at any
Convocation of the University.
(Act S.12 Powers and duties of the Vice-Chancellor)
(3) The Vice-Chancellor shall be a member ex-officio and Chairman of the
Syndicate, the Academic Council and the Finance Committee of the University
and shall be entitled to be present at and address any meeting of any
authority of the University but shall not be entitled to vote there at
unless he is a member of the authorities concerned.
(4) The Vice-Chancellor shall have power to convene the meetings of the
Senate, the Syndicate, the Academic Council and the Finance Committee of
the University.
(5) The Vice-Chancellor shall exercise a general control over all the
affairs of the University.
xxx xxx xxx xxx xxx xxx."
31. From UGC Regulations, 2010, it is clear that the Vice-Chancellor
should be a distinguished academician with a minimum of ten years of
experience as Professor 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 66. Co-ordination and determination of standards in institutions for
higher education or research and scientific and technical institutions.
List III - Concurrent List
Entry 25.- Education, including technical education, medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66 of
List I; vocational and technical training of labour."
Article 254 relates to repugnancy of Law made by the State with the
law made by the Parliament. Article 254 reads as follows:-
"254. Inconsistency between laws made by Parliament and laws made by the
Legislatures of States.-(1) If any provision of a law made by the
Legislature of a State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to any provision of
an existing law with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause ( 2 ), the law
made by Parliament, whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the existing law, shall
prevail and the law made by the Legislature of the State shall, to the
extent of the repugnancy, be void
(2) Where a law made by the Legislature of a State with respect to one of
the matters enumerated in the concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail in that
State:
Provided that nothing in this clause shall prevent Parliament from enacting
at any time any law with respect to the same matter including a law adding
to, amending, varying or repealing the law so made by the Legislature of
the State."
33. The effect in case of inconsistency between the Legislation made by
the Parliament and the State Legislature on the subject covered by List III
has been decided by this Court in numerous cases.
34. In State of Tamil Nadu and another vs. Adhiyhaman Education &
Research Institute and others, (1995) 4 SCC 104, this Court noticed that
Entry 66 of List I of the Seventh Schedule has remained unchanged from the
inception and that Entry 11 was taken out from List II and was amalgamated
with Entry 25 of List III. In the said case the Court held 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
[pic]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 deal with this argument at its proper place.
xxx xxx xxxx
41. What emerges from the above discussion is as follows:
(i) The expression 'coordination' used in Entry 66 of the Union List of the
Seventh Schedule to the Constitution does not merely mean evaluation. It
means harmonisation with a view to forge a uniform pattern for a concerted
action according to a certain design, scheme or plan of development. It,
therefore, includes action not only for removal of disparities in standards
but also for preventing the occurrence of such disparities. It would,
therefore, also include power to do all things which are necessary to
prevent what would make 'coordination' either impossible or difficult. This
power is absolute and unconditional and in the absence of any valid
compelling reasons, it must be given its full effect according to its plain
and express intention.
(ii) To the extent that the State legislation is in conflict with the
Central legislation though the former is purported to have been made under
Entry 25 of the Concurrent List but in effect encroaches upon legislation
including subordinate legislation made by the Centre under Entry 25 of the
Concurrent List or to give effect to Entry 66 of the Union List, it would
be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the State
legislation is saved by the provisions of the main part of clause (2) of
Article 254, the State legislation being repugnant to the Central
legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is
repugnant to the law made by the Centre under Entry 25 of the Concurrent
List, will have to be determined by the examination of the two laws and
will depend upon the facts of each case.
(v) When there are more applicants than the available situations/seats, the
State authority is not prevented from laying down higher standards or
qualifications than those laid down by the Centre or the Central authority
to short-list the applicants. When the State authority does so, it does not
encroach upon Entry 66 of the Union List or make a law which is repugnant
to the Central law.
(vi) However, when the situations/seats are available and the State
authorities deny an applicant the same on the ground that the applicant is
not qualified according to its standards or qualifications, 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 another vs. State of M.P. and others,
(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 Entries 63,
64, 65 and 66 of List I and Entry 25 of List III".
Entry 11 of List II was deleted and Entry 25 of List III was amended with
effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of
1976. The present Entry 25 in the Concurrent List is as follows:
"25.Education, including technical education, medical education and
universities, subject to the provisions of Entries 63, 64, 65 and 66 of
List I; vocational and technical training of labour."
[pic]
Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I
is as follows:
"66. Coordination and determination of standards in institutions for higher
education or research and scientific and technical institutions."
Both the Union as well as the States have the power to legislate on
education including medical education, subject, inter alia, to Entry 66 of
List I which deals with laying down standards in institutions for higher
education or research and scientific and technical institutions as also
coordination of such standards. A State has, therefore, the right to
control education including medical education so long as the field is not
occupied by any Union legislation. Secondly, the State cannot, while
controlling education in the State, impinge on standards in institutions
for higher education. Because this is exclusively within the purview of the
Union Government. Therefore, while prescribing the criteria for admission
to the institutions for higher education including higher medical
education, the State cannot adversely affect the standards laid down by the
Union of India under Entry 66 of List I. Secondly, while considering the
cases on the subject it is also necessary to remember that from 1977,
education, including, inter alia, medical and university education, is now
in the Concurrent List so that the Union can legislate on admission
criteria also. If it does so, the State will not be able to legislate in
this field, except as provided in Article 254.
36. It would not be correct to say that the norms for admission have no
connection with the standard of education, or that the rules for admission
are covered only by Entry 25 of List III. Norms of admission can have a
direct impact on the standards of education. Of course, there can be rules
for admission which are consistent with or do not affect adversely the
standards of education prescribed by the Union 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
[pic](8) the standard of examinations held including the manner in which
the papers are set and examined and the clinical performance is judged.
37. While considering the standards of education in any college or
institution, the calibre of students who are admitted to that institution
or college cannot be ignored. If the students are of a high calibre,
training programmes can be suitably moulded so that they can receive the
maximum benefit out of a high level of teaching. If the calibre of the
students is poor or they are unable to follow the instructions being
imparted, the standard of teaching necessarily has to be lowered to make
them understand the course which they have undertaken; and it may not be
possible to reach the levels of education and training which can be
attained with a bright group. Education involves a continuous interaction
between the teachers and the students. The pace of teaching, the level to
which teaching can rise and the benefit which the students ultimately
receive, depend as much on the calibre of the students as on the calibre of
the teachers and the availability of adequate infrastructural facilities.
That is why a lower student-teacher ratio has been considered essential at
the levels of higher university education, particularly when the training
to be imparted is a highly professional training requiring individual
attention and on-hand training to the pupils who are already doctors and
who are expected to treat patients in the course of doing their
postgraduate courses."
36. In Annamalai University vs. Secretary to Government, Information and
Tourism Department and others, (2009) 4 SCC 590, this Court observed that
UGC Act was enacted by Parliament in exercise of its power under Entry 66
of List I of the Seventh Schedule to the Constitution of India whereas the
Open University Act was enacted by Parliament in exercise of its power
under Entry 25 of List III. It was held that in such circumstances the
question of repugnancy between the provisions of the said two Acts, does
not arise. The Court while holding that the provisions of the UGC Act are
binding on all the Universities held as follows:
"40. The UGC Act was enacted by Parliament in exercise of its power under
Entry 66 of List I of the Seventh Schedule to the Constitution of India
whereas the Open University Act was enacted by Parliament in exercise of
its power under Entry 25 of List III thereof. The question of repugnancy of
the provisions of the said two Acts, therefore, does not arise. It is 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-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."
37. The aforesaid judgment makes it clear that 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.
38. The question that now arises is whether any of the provisions of the
State Legislation (University Act, 1965) and statutes framed thereunder is
in conflict with the Central Legislation i.e. UGC Act, 1956 including UGC
Regulations, 2010.
39. We find that post of Vice-Chancellor under the University Act, 1965
is a post of an Officer. The UGC Act 1956 is silent about this aspect. The
UGC Regulations, 2000 are also silent in regard to post of Vice-Chancellor.
Provisions regarding Vice-Chancellor have been made for the first time
under UGC Regulations, 2010.
We have noticed and held that UGC Regulations, 2010 is not applicable to
the Universities, Colleges and other higher educational institutions coming
under the purview of the State Legislature unless State Government wish to
adopt and implement the Scheme subject to the terms and conditions therein.
In this connection, one may refer paragraph 8(p)(v) of Appendix-I dated
31st December, 2008 and Regulation 7.4.0 of UGC Regulations, 2010.
40. It is also not the case of the respondents that the Scheme as
contained in Appendix-I to the Annexure of UGC Regulations, 2010 has been
adopted and implemented by the State Government. It is also apparent from
the facts that University Act has not been amended in terms of UGC
Regulations, 2010 nor was any action taken by the UGC under Section 14 of
UGC Act, 1956 as a consequence of failure of University to comply with the
recommendations of the Commission under Section 14 of the UGC Act, 1956.
41. Almost similar Public Interest Litigation was filed before the High
Court of Judicature at Bombay being Public Interest Litigation (Lodging)
NO.80 of 2011 Suresh Patilkhede vs. The Chancellor, Universities of
Maharashtra (supra). In the said case the writ petitioner challenged the
appointment of Search Committee for recommending the panel of suitable
person for selection of Vice-Chancellor of Pune University on the ground
that the appointment of the Search Committee by the Chancellor in
accordance with the provisions of Section 12 of the Maharasthra 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 University governed by UGC Act cannot be treated as
falling under Clauses (e) and (g) of Section 26(1) of the UGC Act, 1956."
The Bombay High Court further held:
"46. As already held by us, Regulations 7.2.0 and 7.3.0 of UGC Regulations,
2010 are traceable to Section 12(d) of UGC Act, 1956. The same are not
without any authority of law but at the same time, they are merely
recommendatory in nature and, therefore, neither the State Legislature nor
the State Government is bound to accept the same. Accordingly, when the
State Government issued order dated 15th February, 2011 at Exhibit 'F'
enumerated those regulations which are adopted by the State Government out
of UGC Regulations, 2010, the State Government decided not to adopt
Regulations 7.2.0 and 7.3.0. We, therefore, find considerable substance in
the argument of learned Advocate General that non-adoption of directory
Regulation 7.3.0 would not render the State legislation or the Government
order dated 15th February, 2011 invalid or unconstitutional.
47. To sum up-
Regulation 7.3.0 of UGC Regulations, 2010 is not traceable to clause (e) or
clause (g) of Section 26(1) of the University Grants Commission Act, 1956.
The source of making Regulation 7.3.0 of UGC Regulations, 2010 is Section
12(d) and (j) of UGC Act, 1956. However, since Section 12(d) and (j) of UGC
Act merely enables UGC to make recommendations to Universities, Regulation
7.3.0 has to be treated as recommendatory in nature.
Regulation 7.3.0 of UGC Regulations, 2010 being a subordinate legislation
under an Act of Parliament cannot override plenary legislation enacted by
the State Legislature and, therefore, also Regulation 7.3.0 does not
override, Section 12 of the Maharashtra Universities Act, 1994."
43. We do not agree with the finding of the Bombay High Court that
Regulation 7.3.0 of the UGC Regulations, 2010 is not traceable to clause
(e) or (g) of Section 26(1) of UGC Act, 1956. We also refuse to agree that
Regulation 7.3.0 of the UGC Regulations, 2010 being a sub-ordinate
legislation under the Act of Parliament cannot override the preliminary
legislation enacted by the State Legislature. However, the finding of the
Bombay High Court that Regulation 7.3.0 has to be treated as recommendatory
in nature is upheld in so far as it relates to Universities and Colleges
under the State Legislation.
44. In view of 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 not arise. Once it is adopted by the State
Government, the State Legislation to be amended appropriately. In such case
also there shall be no conflict between the State Legislation and the
Central Legislation.
45. In view of the reasons and finding as recorded above, we uphold the
appointment of Dr. Kalyani Mathivanan as Vice-Chancellor, Madurai Kamaraj
University as made by the G.O.(1D)No.80, Higher Education (H2)Department,
Government of Tamil Nadu dated 9th April, 2012 and set aside the impugned
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 appeals are
allowed but in the facts and circumstances of the case, there shall be no
order as to costs.
........................................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
........................................................................J.
(N.V. RAMANA)
NEW DELHI,
MARCH 11, 2015.