Allahabad High Court

Amrit Prasad vs State Of U.P. & 5 Others on 16 November, 2015

Bench: V.K. Shukla, Mahesh Chandra Tripathi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 29
 
Case :- WRIT - A No. - 62753 of 2015
 

 
Petitioner :- Amrit Prasad
 
Respondent :- State Of U.P. & 5 Others
 
Counsel for Petitioner :- Sanjeev Singh,Rajkaran Tripathi
 
Counsel for Respondent :- C.S.C.,Neeraj Tiwari,Neeraj Tripathi,Ritvik Upadhya
 

 
Hon'ble V.K. Shukla,J.

Hon'ble Mahesh Chandra Tripathi,J.

(Delivered by: Hon'ble V.K. Shukla, J.)

Petitioner Amrit Prasad, by way of present writ petition under Article 226 of the Constitution of India, seeks writ in the nature of quo-warranto against the respondent no.6, who happens to be the Vice-Chancellor of Buldelkhand University, Jhansi on the premises that he is not eligible for being selected or appointed in view of the lack of eligibility as per the minimum requirement of experience for the post of Vice-Chancellor, working as a professor in University for minimum ten years.

Petitioner submits that he is resident of village Syota Syoudha, Tehsil-Naraini, District Banda and is also the central treasurer of Budelkhand Mukti Morcha which is an organization involved in protest for last many decades for carving out a separate state out of Uttar Pradesh consisting numbers of districts from the Bundelkhand Region. Petitioner has submitted that he has only concern for the purity of the education system as such has got locus to prefer the present writ petition in its form. It is further submitted that the action of the petitioner is bona fide and the petitioner's approach to the Hon'ble Court is further with clean hands, clean mind and with clean objective as such this Hon'ble Court may please look into the procedure adopted by the State Government and the Selection Committee (Search Committee) in appointing the respondent no.6 as Vice Chancellor of Bundelkhand University within the ambit and scope of quo-warranto.

The factual situation that is so emerging is that respondent no.6-Prof. (Dr.) Avinash Chandra Pandey has been recommended to function as the Vice-Chancellor of Bundelkhand University, Jhansi and pursuant to the said recommendation, he has joined as Vice Chancellor of Bundelkhand University, Jhansi on 24th December, 2012. Petitioner before this Court is submitting that the Vice-Chancellor of the University, who has been arrayed as respondent no.6 in the present petition, does not possess the requisite qualifications provided for in the 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 which have been framed in exercise of the powers conferred under clauses (e) and (g) of sub-section (1) of section 26 of the University Grants Commission Act, 1956. It has been stated that though clause 7.3.0 of the UGC Regulations which deals with Vice-Chancellor provides that 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 but respondent no.6 does not possess this essential qualification and, therefore, is holding the post of Vice-Chancellor of the University without any authority, whereas 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 has been adopted by the State Government and thus there is no escape route for the respondent no.6 to continue to function as Vice-Chancellor without having minimum of ten years of experience as Professor in the University.

On such a plea being raised from the side of the petitioner through his counsel Shri Sanjeev Singh, Advocate appearing alongwith Shri Rajkaran Tripathi, Advocate, resistance has been made by learned Standing Counsel for the State-respondent no.1, Shri Neeraj Tripathi, Advocate appearing for respondents nos.2 and 4, Shri Neeraj Tiwari, Advocate representing respondent no.3 and Shri Ritvik Upadhyay, Advocate, representing respondent no.5 by submitting that in the matter of selection and appointment of Vice-Chancellor, UGC Regulations have not at all been adhered to by the State of U.P. and as such, once the Vice-Chancellor fulfils the requisite criteria that has been provided under U.P. State Universities Act, 1973 and the First Statutes framed thereunder, then to say that Vice-Chancellor is lacking minimum eligibility, cannot be accepted in the facts of the case and writ of quo-warranto as it has been framed and drawn is liable to be dismissed.

In order to appreciate the respective arguments so advanced, the relevant provisions of U.P. State Universities Act, 1973 as well as of University Grants Commission Act, 1956 and UGC Regulation 2010 are being looked into.

U.P. State Universities Act, 1973:

Bundel Khand University has been established at Jhansi under the provisions of U.P. State Universities Act, 1973, Section 4 (1-A) for the area specified in the Schedule. Section 3 of the Act deals with incorporation of Universities. Section 7 deals with power and duties of University. Section 9 deals with officers of the University wherein under clause (c) of Section 9 Vice-Chancellor has also been shown as an officer of the University. Section 10 deals with Chancellor and provides that by virtue of his office he is the Head of University. Section 12 deals with Vice-Chancellor. Section 12 reads as follows:

"12 The Vice-Chancellor:-

(1) The Vice-Chancellor shall be whole-time salaried officer of the University and shall be appointed by the Chancellor except as provided by sub-section (5) or sub-section (10) from amongst the persons whose names are submitted to him by the Committee constituted in accordance with the provisions of sub-section (2).

(2) The Committee referred to in sub-section (1) shall consist of the following members, namely-

(a) one person (not being a person connected with the University, an Institute, a constituent college, an associated or affiliated college or a hall or hostel) to be elected by the Executive Council (at least three months before the date on which a vacancy in the office of the Vice-Chancellor is due to occur by reason of expiry of his term);

(b) one person who is or has been a Judge of the High court of Judicature at Allahabad including the Chief Justice thereof nominated by the said Chief Justice: and

[provided that where the Executive Council fails to elect any person in accordance with clause (a), then the Chancellor shall nominate in addition to the person nominated by him under clause (c), on person in lieu of the representative of the Executive Council.]

(3) The Committee, shall, as far as may be, at least sixty days before the date on which a vacancy in the office of the Vice-Chancellor is due to occur by reason of expiry of term or resignation under sub-section (7), and also whenever so required and before such date as may be specified by the Chancellor; submit to the Chancellor the names of not less than three and not more than five persons suitable to hold the office of the Vice-Chancellor. The Committee shall, while submitting the names, also forward to the Chancellor a concise statement showing the academic qualifications and other distinctions of each of the persons so recommended, but shall not indicate any order of preference.

(4) Where the Chancellor does not consider any one or more of persons recommended by the Committee to be suitable for appointment as Vice-Chancellor or if one or more of the persons recommended is or are not available for appointment and the choice of the Chancellor is restricted to less than three persons, he may required the Committee to submit a list of fresh names in accordance with sub-section (3).

(5) If the Committee in the case referred to in sub-section (3) or sub-section (4) fails or is unable to suggest any names within the time specified by the Chancellor, [or if the Chancellor does not consider any one or more of the fresh names recommended by the Committee to be suitable for appointment as Vice-Chancellor] another Committee consisting of three persons of academic eminence shall be constituted by the Chancellor which shall submit the names in accordance with sub-section (3).

(6) No act or proceeding of the Committee shall be invalidated merely by reason of the existence of a vacancy or vacancies among its members or by reason of some person having taken part in the proceedings who is subsequently found not to have been entitled to do so.

(7) The Vice-Chancellor shall hold office for a term of three years from the date on which he enters upon his office:

Provided that the Vice-Chancellor may by writing under his hand addressed to the Chancellor resign his office, and shall cease to hold his office on the acceptance by the Chancellor of such resignation.

(8) Subject to the provisions of this Act, the emoluments and other conditions of service of the Vice-Chancellor shall be such as may be determined by the State Government by general or special order in that behalf.

(9) The Vice-Chancellor shall not be entitled to the benefit of any pension, insurance or provident fund constituted under Section 33:

[Provided that when any teacher or other employee of any University or any affiliated or associated college is appointed as Vice-Chancellor, he shall be allowed to continue to contribute to the provident fund to which he is a subscriber and the contribution of the University shall be limited to what it had been contributing immediately before his appointment as Vice-Chancellor.]

(10) In any of the following circumstances (of the existence of which the Chancellor shall be the sole judge), the Chancellor may appoint any suitable person to the office of Vice-Chancellor for a term not exceeding six months as he may specify-

(a) where a vacancy in the office of Vice-Chancellor occurs or is likely to occur by reason of leave or any other cause, not being resignation or expiry of term of which a report shall forthwith be made by the Registrar to the Chancellor;

(b) where a vacancy in the office of Vice-Chancellor occurs and it cannot be conveniently and expeditiously filled in accordance with the provisions of sub-section (1) to (5);

Provided that Chancellor may, from time to time, extend the term of appointment of any person to the office of Vice-Chancellor under this sub-section, so however, that the total term of such appointment (including the term fixed in the original order) does not exceed on year.

(11) Until a Vice-Chancellor appointed under sub-section (1) or sub-section (5) or sub-section (10) assumes office, the Pro-Vice-Chancellor, if any, or where there is no Pro-Vice-Chacellor, the seniormost Professor of the University in the case of the University of Gorkhpur and any University mentioned in or specified under Section 38, or the seniormost Principal of an affiliated college in the case of any other University shall discharge the duties of the Vice-Chancellor as well.

[(12) If in opinion of the Chancellor, the Vice-Chancellor, the Vice-Chancellor wilfully omits or refuses to carry out the provisions of this Act or abuses the powers vested in him, or if it otherwise appears to the Chancellor that the continuance of the Vice-Chancellor in office is detrimental to the interest of the University, the Chancellor may, after making such inquiry as he deems proper, by order, remove the Vice-Chancellor.

(13) During the pendency or in contemplation, of any inquiry referred to in sub-section (12) the Chancellor may order that till further orders-

(a) such Vice-Chancellor shall refrain from performing the functions of the office of Vice-Chancellor, but shall continue to get the emoluments to which he was otherwise entitled under sub-section (8);

(b) the functions of the office of the Vice-Chancellor shall be performed by the person specified in the order.]"

Under Uttar Pradesh State Universities Act, 1973, Section 13 deals with powers and duties of the Vice-Chancellor by providing that Vice-Chancellor shall be the principal executive and academic officer of the University. Section 13 of the Act reads as follows:-

"13. Powers and duties of the Vice-Chancellor.--(1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall--

(a) exercise general supervision and control over the affairs of the University including the constituent Colleges and the Institutes maintained by the University and its affiliated and associated colleges ;

(b) given effect to the decisions of the authorities of the University;

(d) be responsible for the maintenance of discipline in the University;

(e) be responsible for holding and conducting the University examinations properly and at due times and for ensuring that the results of such examinations are published expeditiously and that the academic session of the University starts and ends on proper dates.

(2) He shall be an ex officio member and Chairman of the Executive Council, Academic Council, and the Finance Committee.

(3) He shall have the right to speak in and otherwise to take part in the meeting of any other authority or body of the University but shall not by virtue of this sub-section be entitled to vote.

(4) It shall be the duty of the Vice-Chancellor to ensure the faithful observance of the provisions of this Act, the Statutes and the Ordinance and he shall, without prejudice to the powers of the Chancellor possess all such powers as may be necessary in that behalf.

(5) The Vice-Chancellor shall have the power to convene or cause to be convened meetings of the Executive Council, the Court, the Academic Council and the Finance Committee:

Provided that he may delegate this power to any other officer of the University.

(6) Where any matter (other than the appointment of teacher of the University) is of urgent nature requiring immediate action and the same could not be immediately dealt with by any officer or the authority or other body of the University empowered by or under this Act to deal with it, the Vice-Chancellor may take such action as he may deem fit and shall forthwith report the action taken by him to the Chancellor and also to the officer, authority, or other body who or which in the ordinary course would have dealt with the matter:

Provided further that if the officers, authority or other body is of opinion that such action ought not to have been taken, it may refer the matter to the Chancellor who may either confirm the action taken by the Vice-Chancellor or annul the same or modify it in such manner, as he thinks fit and thereupon, it shall cease to have effect or, as the case may be, take effect in the modified form, so however, that such annulment or modification shall be without prejudice to the validity of anything previously done by or under the order of the Vice-Chancellor:

Provided also that any person in the service of University who is aggrieved by the action taken by the Vice-Chancellor under this sub-section, shall have the right to appeal against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon, the Executive Council may confirm, modify or reverse the action taken by the Vice-Chancellor.

(7) Nothing in sub-section (6) shall be deemed to empower the Vice-Chancellor to incur any expenditure not duly authorised and provided for in the budget.

(8) Where the exercise of the power by the Vice-Chancellor under sub-section terminate on appointment of an officer, such appointment shall terminate on appointment being made in the prescribed manner or on the expiration of a period of six months from the date of the order of the Vice-Chancellor, whichever is earlier.

(9) The Vice-Chancellor shall exercise such other powers as may be laid down by the Statutes and the Ordinances."

The University Grants Commission Act, 1956:

The UGC Act, 1956 was enacted to make provisions for the coordination 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. Functions of the Commission:- 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-

(a) inquire into the financial needs of Universities;

(b) -(c)

(d) 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;

(e) 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. Consequence of failure of universities to comply with recommendation of the Commission:- If any University 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 subsection or fails within a reasonable time to comply with any recommendation made by the Commission under section 12 or section 13, or contravenes the provision of any rule made under clause (f) or clause (g) of sub-section (2) of section 25, or of any regulation made under clause(e) or 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."

Section 26 deals with 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-

(a) 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;"

(f) x x x x

"(g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities."

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. Laying of rules and regulations before Parliament:- 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."

"9. Validation:- [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."

The UGC Regulations, 2010 :

University Grants Commission

Bahadur Shah Zafar Marg

New Delhi-110002.

"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]

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:-

1.1. These Regulations may be called the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010.

1.2. They shall apply to every university established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the university concerned under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and every institution deemed to be a university under Section 3 of the said Act.

1.3 They shall come into force with immediate effect.

Provided that in the event, any candidate becomes eligible for promotion under Career Advancement Scheme in terms of these Regulations on or after 31st December, 2008, the promotion of such a candidate shall be governed by the provisions of these Regulations.

Provided further that 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.

2. 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 subsection, 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."

The 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.

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:- i. 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.

ii. 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.

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.

In order to consider the issue that has been so raised, at the very outset, we will have to go through the judgement of the Apex Court in the case of Kalyani Mathivanan vs. K.V. Jeyaraj and others (2015) 6 SCC 363 wherein taking into account the provisions of UGC Minimum Qualification Regulations, 2010 that has already been extracted above from the said judgment, opinion has been formed that the said regulations are mandatory for Central Institutions and those founded by University Grants Commission, and mandatory in States which have adopted the UGC Regulations; while they are directory for State Institutions in States which have not adopted the UGC Regulations. In the said judgement three issues were framed.

(i) Whether the UGC Regulations, 2010 are mandatory in nature;

(ii) In the event of conflict between the University Act and the UGC Regulations, which of the two would have overriding effect; and

(iii) Whether the post of Vice-Chancellor of a university is to be considered as part of teaching staff?

For determining the issues so framed, after considering the provisions of UGC Act, 1956, UGC Regulations, 2010 and the University Act following discussions have been made and then conclusions have been drawn as follows:

"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.

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.

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.

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.

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.

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.

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."

As far as State of U.P. is concerned, State of U.P. on 31st December, 2010 has proceeded to adopt the said Regulations in question in following manner:

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fo'ks"k lfpo]

mRrj izns'k 'kkluA

lsok esa]

1&dqylfpo

leLr jkT; fo'ofo|ky;

mRrj izns'kA

2&funs'kd

mPp f'k{kk foHkkx

m0iz0 bykgkcknA

mPp f'k{kk vuqHkkx&1

y[kuÅ fnukad 31 fnlEcj&2010

fo"k;% fo'ofo|ky;ksa ,oa egkfo|ky;ksa esa f'k{kdksa ,oa vU; 'kS{kf.kd LVkQ lnL;ksa dh fu;qfDr ds fy;s fu/kkZfjr vgZrk lEcU/kh fu;eu rFkk mPp f'k{kk ds vUrxZr ekudksa ds O;oLFkkiu ds fy;s vko';d mik;ksa ij fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;eu&2010 ds izkfo/kkuksa dks ykxw fd;s tkus ds lEcU/k esa%

egksn;]

mi;qZDr fo"k;d fo'ofo|ky; ,oa egkfo|ky;ksa esa f'k{kdksa ,oa vU; 'kS{kf.kd LVkQ lnL;ksa dh fu;qfDr ds fy;s fu/kkZfjr vgZrk lEcU/kh fu;eu rFkk mPp f'k{kk ds vUrxZr ekudksa ds O;oLFkkiu ds fy, vko';d mik;ksa ij fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fueu] 2010 ds lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd 'kklu }kjk fuEukuqlkj [email protected];Zokgh lqfuf'pr fd;s tkus dk fu.kZ; fy;k x;k gS%&

1& izns'k ds fo'ofo|ky;[email protected]|ky;ksa ds f'k{kdksa ds inksa ij fu;qfDr fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;eu&2010 esa fu/kkZfjr vgZrk ds vuqlkj dh tk;sxhA ;g O;oLFkk bl 'kklukns'k ds fuxZr gksus ds fnukWd ls izHkkoh gksxhA [email protected] tutkfr dks fu/kkZfjr vgZrk vFkkZr LukrdksRrj esa 5 izfr'kr vadksa dh NwV iwoZor tkjh jgsxhA bl izdkj mRre 'kSf{kd vfHkys[k ds lEcU/k esa Hkh vuqlwfpr [email protected] vuqlwfpr [email protected]'kkjhfjd ,oa n`"Vckf/kr fodykaxtu ds vH;fFkZ;ksa dks Lukrd Lrj ij nh tkus okyh 5 izfr'kr dh NwV dh O;oLFkk iwoZor ykxw jgsxhA

2& fo'ofo|ky; ds f'k{kdksa dk p;u fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;er 2010 esa of.kZr izkfo/kkuksa ds vk/kkj ij fd;k tk;sxk] ijUrq egkfo|ky;ksa ds f'k{[email protected];ksZ ds lEcU/k esa p;u izfdz;k jgsxhA bl lEcU/k esa vko';drkuqlkj i`Fkd ls vkns'k fuxZr fd;s tk;sxsA

3& f'k{kdksa ds fy;s dSfj;j MookalesUV gsrq fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;fer 2010 }kjk fu/kkZfjr dSfj;j ,MokalesV Ldhu o blds v/khu inksUufr gsrq foxr lsokvksa dh x.kuk ds lEcU/k esa fd;s x;s izkfo/kku f'ofo|ky; vuqnku vk;ksx }kjk fu;eu&2010 fuxZr gksus dh frfFk fnukad 30 twu&2010 ls ykxw gksxsA blls igys dSfj;j ,MokalesaV ds lEcU/k esa iwoZor O;oLFkk gh ykxw jgsxhA

4& dSfj;j ,MokalesV Ldhe ds vUrxZr Hkh fo'ofo|ky;ksa ds fy;s fu/kkZfjr p;u [email protected];u izfdz;k fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;eru&2010 dh O;oLFkk ds vuqlkj gh gksxh fdUrq fo'ofo|ky;ksa ds f'k{kdksa ds lEcU/k esa ;g O;oLFkk iwoZor cuh jgsxhA vko';drkuqlkj bl lEcU/k esa i`Fkd ls vkns'k fuxZr fd;s tk;sxsA

5&fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;eu&2010 }kjk efgyk f'k{kdksa ds fy;s ekr`Ro ¼izlwfr½ vodk'k dh vof/k 135 fnu ls c<+kdj 180 fnu ¼iw.kZ osru ij½ dj fn;k x;k gSA ,oa efgyk f'k{kdksa ds fy;s lEiw.kZ lsok esa nks o"kZ ¼730fnu½ dk ckY; ns[kHkky vodk'[email protected] nRrd xzg.k vodk'k Lohd`r fd;k x;k gSA bl 'kklukns'k ds fuxZr gksus dh frfFk ls efgyk f'k{kdksa dks vuqeU; ekr`Ro vodk'k 135 fnu ls c<+kdj 180 fnu fd;k tkrk gS lkFk gh jkT; ljdkj ds efgyk dfeZdksa dksk foRr foHkkx ds dk;kZy;&Kki la[;k&th&2&[email protected]&2008&[email protected] fnukad 08 fnlEcj&2008 ds vuqlkj nks o"kZ ¼730½ dk ckY; ns[kHkky vodk'k ,oa nRrd xzg.k vodk'k dh lqfo/kk iznku dh tkrh gSA mi;qZDrckY; ns[[email protected] xzg.k vodk'k ds lEcU/k esa jkT; ljdkj ds dk;kZy; Kki la[;k&th&2&[email protected]&12009&[email protected] fnukad 24 ekpZ&2009 }kjk fu/kkZfjr 'krksZ ds v/khu Lohd`r fd;k tk;sxkA 'ks"k vodk'k iwoZor jgsxsA fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;er&2010 }kjk vodk'k ds lEcU/k esa dh x;h O;oLFkk;sa mDr lhek rd izHkkoh gksxhA

6& fo'ofo|ky;@dkystksa dks de ls de 180 dk;Z fnol dks vaxhdkj djuk gksxk vFkkZr ,d lIrkg esa 6 fnolksa ds 30 lIrkgksa dk okLrfod f'k{k.k gksuk pkfg, 'ks"k vof/k esa ls 12 lIrkg izos'k rFkk ijh{kk fdz;kdyki rFkk lg&ikB;sRrj [ksydwn dkyst fnol vkfn ds xSj vuqns'kkRed fnol dks lefiZr gksxkA

7& f'k{kdksa dk f'k{k.k dk;ZHkj lEcU/k esa fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;er&2010 esa fd;s x;s izkfo/kkuksa dk vuqikyu lqfuf'pr fd;k tk;sA

8& fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;eu&2010 esa dh x;h vuq'kalkvksa dks lfEefyr djrs gq;s ,d f'k{kd vkpj.k fu;ekoyh cukbZ tk;sA

9& f'k{kdksa dh ifjoh{kk vkSj LFkk;hdj.k fo'ofo|ky; vuqnku vk;ksx }kjk fuxZr fu;eu&2010 esa dh x;h O;oLFkk ds vuqlkj fd;k tk;sxkA

d`i;k mijksDr O;oLFkk;sa 15 fnu ds vUnj vius&vius fo'ofo|ky;ksa dh ifjfu;ekoyh esa lfEefyr djkus gsrq vko';d dk;Zokgh rRdky lqfuf'pr djus dk d"V djsA mi;qZDr vkns'k mRrj izns'k jkT; fo'ofo|ky; vf/kfu;e&1973 dh /kkjk&50¼6½ ds vUrxZr fuxZr fd;s tk jgs gSA ;fn fo'ofo|ky; fu/kkZfjr vof/k ds vUnj mi;qZDr izkfo/kku izFke ifjfu;ekoyh ds ifjfu;e esa lqlaxr LFkku ij lfEefyr djus esa vlQy jgrk gS rks bl lEcU/k esa 'kklu }kjk Jh dqykf/kifr ds vuqeksnu ls lHkh fo'ofo|ky; dh ifjfu;e dks mDr lhek rd la'kks/kr dj fn;k tk;sxkA

Hkonh;

gLrk{kj&vLi"V

foey fd'kksj xqIrk

fo'ks"k lfpoA

la[;k&2840¼1½@lRrj&1&2010 rn~ fnukadA

Record in question further reflects that once again the State Government on 3rd December, 2013 proceeded to issue following notification:

Lka[;k&[email protected]&1&2013&16¼114½@2010

izs"kd]

fuf/k dsljokuh

fo'ks"k lfpo]

mRrj izns'k 'kkluA

lsok esa]

1&dqylfpo

leLr jkT; fo'ofo|ky;

mRrj izns'kA

2&funs'kd]

mPp f'k{kk foHkkx]

m0iz0 bykgkcknA

mPp f'k{kk vuqHkkx&1

y[kuÅ fnukad 03 fnlEcj&2013

egksn;]

mi;qZDr fo"k;d la[;k&[email protected]&2010 fnukad 31&12&2010 }kjk mRrj izns'k jkT; fo'ofo|ky; vf/kfu;e] 1973 dh /kkjk&50 dh mi/kkjk ¼6½ esa fufgr 'kfDr;ksa dk iz;ksx djrs gq;s jkT; ljdkj }kjk fo'ofo|ky; dh izFke ifjfu;ekoyh esa ;FkkLFkku la'kks/ku lqfuf'pr fd;s tkus ds mn~ns'; ls funsZ'k tkjh fd;s x;s Fks vkSj fo'ofo|ky;ksa ls ;g vis{kk dh x;h Fkh fd os 15 fnuksa ds vUnj viuh izFke ifjfu;ekoyh esa ;Fkkvisf{kr la'kks/ku fd;k tkuk lqfuf'pr djsA fofgr vof/k ds lekIr gksus ds mijkUr Hkh fdlh fo'ofo|ky; }kjk ifjfu;ekoyh esa la'kks/ku dh fufnZ"V dk;Zokgh ugha dh x;hA blfy;s mRrj izns'k jkT; fo'ofo|ky; vf/kfu;e 1973 dh /kkjk 50 dh mi/kkjk 6 esa fufgr 'kfDr;ksa ds vUrxZr jkT; ljdkj }kjk fo'ofo|ky; vuqnku vk;ksx }kjk fnukad 30 twu 2010 dks fuxZr izkfo/kkuksa dks ykxw fd;s tkus ds lEcU/k esa leLr jkT; fo'ofo|ky;ksa esa ,d leku ifjfu;ekoyh rS;kj dh x;h vkSj mDr ifjfu;ekoyh ds lEcU/k esa 'kklu ds i= fnukad 28 twu 2010 }kjk fo'ofo|ky;ksa ls vfHker miyC/k djkus dh vis{kk dh x;hA dfri; fo'ofo|ky;ksa ls izkIr vfHker dks laKku esa fy;k x;kA mDr ifjfu;ekoyh esa fd;s x;s izkfo/kkuksa dks egkefge Jh jkT;[email protected]/kifr }kjk mRrj izns'k jkT; fo'ofo|ky; vf/kfu;e 1973 dh /kkjk 50 dh mi/kkjk 6 ds vUrxZr lgefr iznku dh x;h gSA

egkefge Jh jkT;[email protected]/kifr }kjk vuqeksfnr ifjfu;ekoyh dh izfr layXu dj izsf"kr djrs gq;s eq>s ;g dgus dk funs'k gqvk gS fd d`i;k ifjfu;ekoyh es fd;s x;s izkfo/kkuksa dk vuqikyu lqfuf'pr djkus dk d"V djs ,oa d`r dk;Zokgh ls 'kklu dks Hkh voxr djk;sA

Hkonh; fuf/k dsljokuh

fo'ks"k

lfpoLka[;k&377 [email protected]&1&2013 rnfnukWd

Based on these two Government Orders that have been so issued, it is being submitted that UGC Regulations, 2010 stands adopted by the State Government and as such, in the matter of selection of Vice-Chancellor, the eligibility criteria that has been mentioned ought to have been adhered to, failing which the Vice-Chancellor will have to be considered as being ineligible to be appointed as Vice-Chancellor of the University for the reason of lacking minimum ten years of experience as Professor of the University.

On these parameters, we have to consider as to whether in the facts of the case, Professor (Dr.) Avinash Chandra Pandey has been appointed as Vice-Chancellor dehors the statutory provision.

Bare perusal of the Government Order dated 31st December, 2010 would go to show that as far as teachers and other non-teaching staff are concerned, qua them the UGC Regulations 2010 has to be adhered to and similar is the language that has been so used in the letter dated 3rd December, 2013. The said letter in question, at no point of time, has ever taken within its fold the selection and appointment of Vice-Chancellor, rather it confines itself only in reference to selection and appointment of teaching and non-teaching staff and nothing beyond the same. There is logical reason behind the same, as under U.P. State Universities Act, 1973, Vice-Chancellor holds the post of principal Executive Officer and has not at all been taken with the fold of teacher. "Teacher" has been defined under Section 2(18) of the Act as a person employed [for imparting instructions or guiding or conducting research in the University or in an institute or in a constituent, affiliated or associated college] and includes Principal or Director. Under Section 9(c) Vice-Chancellor has been described as Officer of the University. Vice-Chancellor and Teacher stand on all-together different footing under U.P. State Universities Act, 1973. Scheme as contained under UGC Regulation, 2010 had been adopted in part by the State Government only in reference of teaching/non-teaching staff. Post of Pro-Vice Chancellor and Vice Chancellor has been deliberately and intentionally left out and as such, UGC Regulation, 2010 ipso-facto would not at all apply in the matter of selection and appointment of Pro-Vice Chancellor and Vice-Chancellor.

It is true that reference has been given of UGC Minimum Qualification Regulation 2010 in the two Government Orders quoted above but in the matter of adoption of the same by the State Government, it has been adhered only to limited extent that is only in reference of teaching and non-teaching staff then it cannot be ipso-facto presumed that it has been adopted in reference of Vice-Chancellor also as already discussed above and as per the language of Clause 7.4.0 the Universities/State shall modify or amend the relevant Act/Statutes of the Universities concern within 6 months of adoption of Regulations. Till today, the Act/Statutes in reference of appointment of Vice-Chancellor has not at all been modified/amended and no action for non-compliance of the same has been taken as under the scheme of things provided for, in case University contravenes the provision of any Regulation made under clause (e) 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 funds of Commission. Couple with this, no action has been taken by the State Government, by amending the Statutes with the assent of Chancellor, as is provided for under Section 50(6) of U.P. State Universities Act, 1973. In this background and in such a situation in reference of post of Vice-Chancellor, the provisions of U.P. State Universities Act, 1973 and the Statute framed thereunder still continues to hold the field. Once such is the inevitable conclusion,.. then complaint made by the petitioner that respondent no.6-Professor (Dr.) Avinash Chandra Pandey does not fulfil the minimum eligibility criteria as prescribed under UGC Minimum Qualification Regulation 2010, cannot be accepted. The said regulations in question has not at all been followed in reference to the minimum qualification for appointment to the post of Vice-Chancellor, in view of this, the writ petition in question is itself based on totally wrong notion that the Vice-Chancellor does not fulfil requisite qualification as provided for under Regulation 7.3.0. of the UGC Minimum Qualification Regulation 2010.

The selection of Professor (Dr.) Avinash Chandra Pandey as Vice-Chancellor has been made on the parameters of the provisions as contained under Utter Pradesh State University Act, 1973 after his name has been recommended by the Search Committee and ratified by the Chancellor, as such, on mere misconception writ of quo-warranto, cannot be issued as writ of quo-warranto lies only when appointment is contrary to statutory proviso as per the judgment of the Apex Court in the case of Hari Bansh Lal vs. Sahodhar Prasad Mahto 2010 (9) SCC 655.

Even otherwise facts of present case are identical to the facts of Kalyani Mathivanan (Supra) for the reason that the provisions of U.P. State Universities Act, 1973 as well as The Madurai Kamraj University Act, 1965 are more or less identical as under both the statutory provisions "Teacher" has been separately defined and "Officer" of the University has been separately defined, and in the backdrop of statutory provisions of The Madurai Kamraj Univesity Act, 1965, finding has been returned that post of Vice-Chancellor under University Act, 1965 and the Statutes made thereunder is not a teaching post but an officer of the University. Under the provision of U.P. State Universities Act, 1973 also Vice-Chancellor is not a teacher but an officer of the University. Once such is the similarity and State has not at all adopted UGC Regulations, 2010 in reference of Vice-Chancellor, then appointment of Vice-Chancellor being akin to the appointment of Dr. Kalyani Mathivanan, has to be upheld in all eventuality.

Accordingly, the writ petition is dismissed.

Order Date :- 16.11.2015

A. Pandey