Bombay High Court

Vishwaprakash S/O Laxman Sirsath ... vs The State Of Maharashtra Through ... on 15 February, 2002

Equivalent citations: 2002 (4) BomCR 664, (2002) 4 BOMLR 176, 2003 (2) MhLj 176

Bench: C F Shah, S Counsel, A Tele

JUDGMENT

1. We have heard the learned counsel for the Petitioners as well as in the connected group of petitions, which have raised a common challenge to the Resolution of the Government of Maharashtra, issued on 18th October, 2001 and more particularly Clause 2 (E) of the said resolution. The said clause reads as under:

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2. By the above Resolution, the State Government has laid down that the Lecturers, who were appointed between the period from 19th September, 1991 to 11th December, 1999, and without possessing the qualifications of NET/SET, would be protected and they are required to obtain the said qualifications by December, 2003 or before and in case they failed to acquire these requisite qualifications, within the said period, they would be entitled for the pay scale of Rs.8000-13500 till their superannuation. In addition, they shall not be entitled for promotion, senior grade or selection grade. Those who passed the NET/SET examination, within the stipulated extended period, would be entitled for senior/ selection grade from that date and their seniority will be also counted accordingly. Such of those Lecturers, who were employed under the Government Colleges, their continuation would be in consultation with the Maharashtra State Public Service Commission. However, it is stipulated in the said Government Resolution that those Lecturers who did not possess the NET/SET qualifications and have been appointed after 11th December, 1999 shall not be given the benefit of extended period to acquire the said qualifications and their services are required tobe discontinued before the completion of the probationary period. The petitioners are aggrieved by this clause of termination of service while on probation.

3. It is submitted that the said clause is discriminatory and, thus, violating the guarantee provided under Article 14 of the Constitution. The cut off date viz. 11th December, 1999 is unreasonably fixed and it has no nexus with the purpose sought tobe achieved and, therefore, the decision of the cut off date is arbitrary. The principles of equality between similarly placed Lecturers viz. all those who have not acquired NET/SET qualifications has been breached. In any case, the Resolution dated 18th October, 2001 could be made operative prospectively after 18th October, 2001 and it cannot be made applicable to all the Lecturers who have been appointed prior to 18th October, 2001. By referring to the earlier Government Resolution dated 13th June, 2000 it has been submitted that while adopting the regulations framed by the University Grants Commission (the Commission, for short) vide notification dated 4th April, 2000 the State Government did not lay down such a clause classifying the similarly placed Lecturers in different categories. In para 7 of the said Resolution it was stated that the rules framed by the Commission would be made applicable from 4th April, 2000 and, therefore, any appointment, which was made prior to 4th of April, 2000 could not be disturbed on the ground of lack of qualification. In addition, the rules framed by the Commission vide notification dated 4th April, 2000, do not provide for any such clause of termination. A Government Resolution could not be made applicable retrospectively and it could be applicable only prospectively i.e. from 18th October, 2001 and not even prior to the said date, in view of the earlier Resolution dated 13th June, 2000 by which a legitimate expectation was created in the minds of those who were appointed even after 4th April, 2000 that their appointment may be regularised by following the procedure, as laid down by the Regulations framed by the Commission and, therefore, the impugned Resolution also violates the doctrine of legitimate expectations. All the petitioners have been selected by a duly constituted selection committee and against sanctioned permanent posts. All of them meet the basic qualifications and failure to acquire the additional qualifications cannot be a justifiable reason to remove them from service or to declare them as ineligible to hold the post they have appointed for. Some of the petitioners belong to the reserved categories and they have been appointed pursuant to the directives of the State Government to fill in the reserved category quota by way of special drive. It is urged before us that the Government was required to consider the cases of reserved category candidates on a different footing and more particularly in keeping with the spirit of Article 371(2)(C) of the Constitution. Elaborating this point, it has been submitted before us that adequate facilities for acquiring the NET/ SET qualifications are not available in the backward areas like the Marathwada region and the State Government ought to have considered this prevailing reality while issuing the impugned Resolution. The State is required to give special considerations to the prevailing inadequate facilities in the backward regions and, therefore, it would have been appropriate for the State Government to extend the period for acquiring the qualifications on par with those who have been appointed prior to 11th December, 1999. In support of these submissions, the learned counsel have relied upon the following decisions:

(i) "Union of India and others V/s Hindustan Development Corporation and others"

(ii) "Osmania University V/s R. Madhavi and others"

[AIR 1998 A.P. 130]

A strong reliance has been placed on a recent judgment of the Calcutta High Court in the case of "Amiyakumar Ghosh V/s State of West Bengal and others" [Writ Petition No. 19293 (W) of 1999 with Writ Petition No. 12593 (W) of 2000].

The Petitioners also contend that the regulations framed by the Commission are recommendatory in nature and they do not have a statutory force. It was not necessary for the Government of Maharashtra to follow the said regulations as binding and, in any case, if a concession is given to one set of Lecturers, by extending the period for acquiring the additional qualifications, the State Government ought to have extended the same benefit to all those who have been appointed prior to 18th October, 2001.

4. To examine the merit of these submissions, we have to consider the status of the Commission and the provisions of the University Grants Commission Act, 1956 (the UGC Act, for short).

5. The UGC Act came to be enacted under the provisions of Entry 66 of List 1 of the 7th Schedule to the Constitution, which entitles the Parliament to legislate in respect of "coordination and determination of standards in institutions of higher education or research or in scientific and technical institutions". The preamble of the UGC Act, which repeats the words of Entry No. 66, reads:

"An Act to make provisions for the coordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission."

The UGC Act has come into force from 5th February, 1956. Section 2 of the UGC Act deals with definitions and the Central Government has established the Commission under section 4 of the UGC Act. Section 12 is regarding the functions of the Commission and it says "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 coordination 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 functioning under this Act the commission may ... ...

(d) recommend to any university the measures necessary for the improvement of university education and advice the University upon the action tobe taken for the purpose of implementing such recommendations."

6. Section 12A enables the commission to regulate fees and it prohibits donations in certain cases. Subsection (1) of the said section deals with the definitions of certain terms and the term "regulations" means regulations made under the UGC Act. Subsection (4) provides that if, after making, in relation to a college providing for a specified course of study, an inquiry provided in the manner in the regulations and after giving such college a reasonable opportunity of being heard, the commission is satisfied that such college has contravened the provisions of subsection (3), the commission may, with the previous approval of the Central Government, pass an order prohibiting such college from presenting any students then undergoing such course of study therein to any university for the award of the qualification concerned. Subsection (7) states that the provisions of section 12A and the Regulations for the purpose of the said section shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 12B states that no grant shall be given by the Central Government, the commission or any other organisation receiving any funds from the Central Government, to a university which is established after the commencement of the University Grants Commission (Amendment) Act, 1972 unless the commission has, after satisfying itself as to such matters as may be prescribed, declare such university tobe fit for receiving such grant. Section 13 empowers the commission the right of inspection. Section 14 deals with the consequences of failure of universities to comply with the recommendations of the commission and it states that 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 section and fails within a reasonable time to comply with any recommendations made by the commission under section 12 or 13 or contravenes the provisions of any rule made under clause (f) or clause (g) of subsection (2) of section 25 or of any regulation 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 for such failure or contravention, may withdraw from the university the grants proposed to be made out of the fund of the commission. As per section 20, in the discharge of its functions under the UGC Act the commission shall be guided by such directions on questions of policy relating to national purpose as may be given to it by the Central Government. Section 26 deals with the powers to make regulations and clause

(e) of subsection (1) thereto deals with the powers to frame regulations defining the qualifications that should ordinarily be required of any person tobe appointed to the teaching staff of the university and under clause (g), regulations can be framed for the maintenance of standards of work or facilities in the universities. As per subsection (3) of section 26 the power to make regulations conferred by the said section except clause (i) and clause (j) of subsection (1), shall include the power to give retrospective effect from a date not earlier than the date of commencement of the UGC Act, to the regulations or any of them but no retrospective effect shall be given to any regulation so as to prejudicially affect the interest of any person to whom such regulation may be applicable.

7. The commission framed the University Grants Commission (Qualifications required of a person to be appointed to the teaching staff of University and Institutions affiliated to it) Regulations, 1991 in exercise of the powers conferred by section 26(1)(e) read with section 14 of the UGC Act and they were notified on 19th September, 1991 in the Gazette of India. They apply to every university established or incorporated by or under the Central Act, Provincial Act or any State Act. These regulations were framed on the basis of the recommendations of a committee appointed under the chairmanship of Prof. R.C.Mehrotra (Mehrotra Committee). The Mehrotra committee had recommended the following minimum qualifications for appointment to the post of Lecturer:

(i) Qualifying at the national test conducted for the purpose by the UGC or any other agency approved by the UGC.

(ii) Masters degree with atleast 55% marks or its equivalent grade and good academic record.

(iii) The minimum qualifications mentioned above should not be relaxed even for candidates possessing M.Phil., Ph.D. qualifications at the time of recruitment.

After examining the recommendations of the Mehrotra Committee as well as the commission, the Government of India prepared a scheme for revision of pay scales of teachers in the universities and colleges and other measures of maintenance of standards in higher education and by letter dated 17th June, 1987 the Government of India forwarded the said scheme to all the State Governments and the Union Territories with a request to formulate detailed proposals for its implementations. The scheme was revised by the Central Government in 1988. In 1989 a conference of Vice-Chancellors was held under the auspices of the commission and one of the major recommendations made in the said conference was "the national level test to determine the eligibility for Lecturers be conducted, when the State Government conducts such tests, while accreditating them caution be exercised. ... ..."

Keeping these recommendations in mind the commission framed the 1991 regulations superseding the earlier regulations framed in 1982. In clause 2 of the 1991 regulations, qualifications for appointment to the teaching posts were laid down in the following words:

(2) Qualifications: No person shall be appointed to a teaching post in the University or in any of the institutions, including constituent or affiliated colleges which commenced under clause (f) of section 2 of the University Grants Act, 1956 or in any institution deemed tobe a university under section 3 of the said Act in any subject if he does not fulfill the requirements as to the qualifications for the appropriate subject as provided in Schedule 1; Provided that any relaxation in the prescribed qualifications can only be made by a university in regard to the posts under it or any of the institutions, including constituent or affiliated colleges recognised under clause

(f) of section 2 of the aforesaid Act or by any institution deemed tobe a university under section 3 of the said Act, with the prior approval of the University Grants Commission. Provided further that these regulations shall not be applicable to such cases where selection through duly constituted selection committees for making appointments to the teaching posts have been made prior to the enforcement of these regulations.

The qualifications laid down in Schedule 1 of the 1991 regulations, framed by the commission for the post of Lecturer were, as under:

Good academic record with at least 55% marks or an equivalent grade at Masters level in the relevant subject from an Indian University or an equivalent degree from an foreign university.

Candidates, besides fulfilling the above qualifications, should have acquired the eligibility test for Lecturers conducted by the UGC, CSIR or similar tests accredited by the UGC.

8. The 1991 regulations were adopted by the Government of Maharashtra vide Government Resolution dated 8th January, 1991 on the basis of the Commissions letter dated 30th January, 1990 and for the appointment of Lecturers in the university and colleges the following qualifications were laid down: University Lecturers:

(a) A doctorate degree or research of an equally high standard;

(b) Good academic record with at least second class i.e. in the seven point scale.

Having regard to the need for developing interdisciplining programs, the degrees in (a) and (b) may be in relevant subject.

Collage Lecturers:

(a) An M.Phil. degree or a recognised degree beyond the Masters level or published work indicating capacity of a candidate for independent research work. And

(b) Good academic record with at least second class (C in the seven point scale) Masters degree in a relevant subject from an Indian University or equivalent degree from a foreign university. Provided that if the selection committee is of the view that the research work of a candidate, as evident either from his thesis or from his published work, is of a very high standard it may relax any of the qualifications prescribed in (b) above.

9. By a circular dated 10th February, 1993 the commission granted exemption from appearing in the eligibility tests to the following categories:

(a) All candidates who had passed UGC/ CSIR/ JRF examination.

(b) All candidates who were already awarded the Ph.D. degree.

(d) All candidates who would submit their Ph.D. thesis upto 31st December, 1993.

By a further circular dated 15th June, 1993, in respect of candidates falling in category (c), exemption from appearing in the eligibility test was extended to candidates who were awarded M.Phil degree up till 31st December, 1992. By a notification dated 21st June, 1995, the 1991 regulations came tobe amended and the following proviso was added below the requirement regarding clearing the eligibility test for appointment to the post of Lecturer:

"Provided that candidates who have submitted Ph.D. thesis or passed the M.Phil.

examination by 31st December, 1993, are exempted from the eligibility tests for Lecturers conducted by UGC/ CSIR or similar test accredited by the UGC."

10. The Government of Maharashtra consequently issued a Resolution dated 12th December, 1995 and adopted these amended qualifications as well. Prior to the said resolution the State Government had issued another resolution dated 28th April, 1994 and followed the changes made by the commission by its circular dated 10th February, 1993 as well as 15th June, 1993 regarding exemption of NET/ SET examination in respect of M.Phil and Ph.D. candidates. By the Resolution dated 22nd December, 1995 the Government of Maharashtra extended the date for acquiring the NET/ SET qualifications to 31st March, 1996 and laid down that those Lecturers who were appointed on or after 19th September, 1991 without passing the NET/ SET examination or M. Phil. examination upto 31st December, 1993 or not completed Ph.D. till the same date came to be governed by the qualifications as prescribed by the commission and as amended in 1995 viz. passing the NET/ SET examination. It further specifically stated that those appointees holding the posts of Lecturer on account of non-availability of the qualifying candidates shall be treated as adhoc and in any case they would not be liable for removal from service only on account of not qualifying the NET/ SET examinations. However, until the time they would pass the said examination, they would not be entitled for the benefit of annual increments and such annual increments would be released only after they passed the examination.

11. The amended regulations of 1995 alongwith the regulations of 1991 came to be superseded by the Regulations framed in 2000 by the Commission and they are called the University Grants Commission (Minimum Qualifications Required For The Appointment and career advancement of Teachers in Universities and Institutions Affiliated to It) Regulations, 2000 (for short, the 2000 Regulations). These regulations have been adopted by the Government of Maharashtra vide its Resolution dated 13th June, 2000, as observed herein above. The qualifications clause in the newly framed regulations reads as under:

"2. Qualifications:

No person shall be appointed to a teaching post in the university or in any of the institutions, including constituent or affiliated colleges recognised under clause

(f) of section 2 of the University Grants Commission Act, 1956 or in an institution deemed tobe a university under section 3 of the said Act in a subject if he/ she does not fulfill the requirements as per qualifications for the appropriate subjects as provided in the annexure.

Provided that any relaxation in the prescribed qualifications can only be made by the University Grants Commission in a particular subject in which NET is not being conducted or enough number of candidates are not available with NET qualifications for a specified period only. (This relaxation, if allowed, would be given based on sound justification and would apply to affected universities for that particular subject for the specified period. No individual applications would be entertained). Provided further that these regulations shall not be applicable to such cases where selection of the candidates having had the then requisite minimum qualification as were existing at that time through duly constituted selection committee for making appointments to the teaching posts have been made prior to the enforcement of these regulations."

Thus, the first proviso of Regulation 2 of the 1991 regulations regarding qualifications was replaced by the amended proviso as set out hereinabove. Clause 1.5.3. of the annexure to the regulations pertains to the qualifications for the pose of Lecturer and it reads, thus:

"Good academic record with at least 55% of the marks (or an equivalent grade) at Masters degree level or an equivalent qualification from an Indian or foreign university. Candidates, besides fulfilling the above qualifications should have cleared National Eligibility Test for Lecturers (NET) conducted by UGC or similar tests accredited by the UGC.

Note:- NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidates who have completed M.Phil. degree or have submitted Ph.D. thesis in the concerned subject upto 31st December, 1993 are exempted from appearing in the NET examinations."

By Resolution dated 13th June, 2000 the Government of Maharashtra adopted the 2000 Regulations and clause 7 of the said Government Resolution reads as under:

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12. By the impugned Resolution dated 18th of October, 2001 the State Government has granted some concessions/ protection to those who have been appointed during the period from 19th September, 1991 to 11th December, 1999 and such protections have been denied to those who have been appointed after 11th December, 1999 and they face the eminent possibility of removal from service, as has been apprehended by the Petitioners. The cut off date 11th December, 1999 has its origin in the Government Resolution of the same date issued by the Stage Government for implementing the Fifth Pay Commission Recommendations with effect from 1st January, 1996 and also the Government of India Scheme of 1998, which was circulated on 24th December, 1998. Clause 7 of the said Government Resolution is regarding the recruitment and qualifications for the teaching faculty. The qualifications for the post of Lecturer were stipulated as under:

"Good academic record with atleast 55% of the marks or an equivalent grade of (B) in the seven point scale with later grades O,A,B,C,D,E & F at the Masters degree level in the relevant subject from an Indian University or an equivalent degree from a foreign university.

Besides fulfilling the above qualifications, candidates should have acquired the eligibility test (NET) for Lecturers conducted by the UGC, CSIR or similar test accredited by the UGC."

A perusal of the Resolutions issued by the Government of Maharashtra on 8th January, 1991, 11th December, 1999 and 13th of June, 2000 shows that the qualifications as laid down by the Commission for the appointment to the post of Lecturer have been in verbatim followed except that in case of a Ph.D. holder discretion was left with the universities concerned for granting exemption regarding NET/ SET examination as is evident from clause 7 of the Resolution dated 11th December, 1999, which read as under:

"7. Recruitment and Qualifications.- The direct recruitment to the post of Lecturers, Readers and Professors in the Universities and Lecturers in Colleges shall be on the basis of merit through all-India advertisement and selections by the duly constituted Selection Committees to be set up as prescribed in UGCs Notification, dated 24th December, 1998 under the Statutes/ Ordinances of the concerned University. Such Committees should have a minimum of three experts, the head of the concerned Department and the Principal of the concerned College (in case of selection of college teachers).

Recruitment of Teachers in Government Colleges and Institutes of Sciences will be regulated by respective recruitment rules prescribed by the State Government in consultation with Maharashtra Public Service Commission.

The minimum qualifications required for the post of Lecturers, Readers, Professors, Assistant Directors of Physical Education, Deputy Directors of Physical Education, Directors of Physical Education, Assistant Librarians, Deputy Librarians, Librarian, and Registrars, will be those as prescribed by the University Grants Commission & accepted by State Government from time to time.

The minimum requirements of a good academic record, 55% of the marks at the masters level and qualifying in the National Eligibility Test, or an accredited test, shall remain for the appointment of Lecturers. It would be optional for the University to exempt Ph.D. holders from NET or to require NET in their case either as desirable or essential qualifications for appointment as Lecturers in the University Departments and Colleges. The minimum requirement of 55% should not be insisted upon for Professors, Readers, Registrars, Librarians, Deputy Librarians, Directors of Physical Education, Deputy Director of Physical Education for the existing incumbents who are already in the University system. However, these marks should be insisted upon for those entering the system from outside and those at the entry point of Lecturers, Assistant Librarians, Assistant Director of Physical Education.

A relaxation of 5% may be provided, from 55% to 50% of the marks, at the masters level for the SC/ ST category. A relaxation of 5% may be provided, from 55% to 50% of the marks to the Ph.D. degree holders who have passed their Masters degree prior to 19th September, 1991.

B in the 7 point scale with latter grades O, A, B, C, D, E & F shall be regarded as equivalent of 55% wherever the grading system is followed.

The Ph.D. shall continue to be a compulsory requirement for the designation of Reader. However, for other categories, like those of Registrars, Librarians and Physical Education Directors, the Ph.D. should be a desirable and not an essential qualification."

However, that discretion left with the University has not been retained in the subsequent Government Resolution dated 13th of June, 2000 or the impugned Resolution and mainly because of the 2000 Regulations framed by the Commission which have been adopted by the State Government.

13. Regulation No. 2 of the 1991 Regulations framed by the Commission opened with the words "no person shall be appointed to a teaching post in university or any of the institutions ... ... if he does not fulfill the requirements as to the qualifications for the appropriate subjects as provided in Schedule 1. The Regulation, therefore, made a declaration that unless a candidate possessed the qualifications, as set out in Schedule 1 for the concerned post, viz. the Lecturer, his appointment shall not be made. It created a bar against the appointments of candidates not fulfilling the requirement of educational qualifications as set out in Schedule 1 and in Schedule 1 the following qualifications were formulated:

(a) good academic record with at least 55% marks (or an equivalent grade) at Masters degree level or an equivalent qualification for an Indian or foreign university.

(b) Candidates, besides fulfilling the above qualification, should have cleared National Eligibility Test for Lecturers (NET) conducted by UGC or similar tests accredited by the UGC.

There is only a provision for relaxation in terms of first proviso under Regulation 2. This proviso states that (a) relaxation in the prescribed qualifications could be made by university, (b) in regard to the post under it or any of the institutions, including constituent or affiliated colleges recognised under clause (f) of section 2 of the UGC Act or by an institution deemed tobe an university under section 3 of the said Act and (c) with the prior approval of the Commission. The Delhi High Court, upon a writ petition filed by one Rajsingh had held that the 1991 Regulations were valid and mandatory and the university was obliged under law to comply therewith. This decision came tobe challenged by the University of Delhi in Civil Appeal No. 1819 of 1994 which was decided by the Apex Court on 8th September, 1994 i.e. "University of Delhi V/s Raj Singh and others" . The Supreme Court, on analysing the provisions of the Delhi University Act, the UGC Act and Entry No. 63 and 66 of List 1 of Schedule 7 of the Constitution held that (a) the first proviso to clause 2 permitted regularisation in the prescribed qualifications by university provided it is made with the prior approval of the UGC, (b) the second proviso made the application of the said regulations prospective; (c) clause 3 of the Regulations provided for the consequences of the failure of the university to comply with the recommendations made in clause 2 in the same terms as are set out in section 14 of the UGC Act; (d) the provisions of clause 2 of the said Regulations are, therefore, recommendatory in character and it would be open to an university to comply with the provisions of clause 2 by employing as lecturer only such person who has fulfilled the requirement as to qualifications for the appropriate subject provided in the schedule to the said Regulations. It would be open, in specific cases, for the university to seek the prior approval of the UGC to regularise these requirements. Yet again it would be open to the university not to comply with the provisions of clause 2 in which, in the even that it failed to satisfy the UGC that it had done so for good cause, it would loose its grants from the UGC. The said regulations do not impinge upon the power of the university to select its teachers. The University may still select its lecturers by written test and interview or either. Successful candidates at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and, therefore, all who have cleared it stand at the same leave. There is, therefore, no element of selection in the process. The Universitys autonomy is not entrenched upon by the said Regulations.

14. When the 2000 Regulations were framed by the Commission on 4th April, 2000, clause 2 regarding the qualifications remained the same and the first proviso was amended. The relaxation in the prescribed qualifications was envisaged only in respect of subjects and in which NET is not being conducted or enough number of candidates are not available with NET qualifications for a specified period only. In addition, these relaxations were required tobe made by the Commission alone and not by the University concerned as was the position in the earlier proviso under the said clause in the 1991 Regulations. It further clarified that relaxation would be given based on sound justification and would apply to affected Universities for a particular subject for the specified period and no individual applications would be entertained. In Schedule I where the qualifications are prescribed for the post of Lecturer a specific note has been added which clarified that though NET would remain compulsory requirement for appointment of Lecturer even for the candidates having Ph.D. degree, the appointees with such qualifications or those who have completed M. Phil. degree up to 31st December, 1993 are exempted from appearing in the NET examination. Thus, the candidates who completed M.Phil. degree or had submitted Ph.D.Thesis in the concerned subject upto 31st December, 1993 are alone exempted from appearing in the NET examination and there is no other relaxation regarding qualifications for appointment to the post of Lecturer.

15. In the case of "University Grants Commission V/s Sadhana Chaudhary and others" relating to grant of exemption in qualifications, in the 1991 Regulations, were raised and more particularly the requirement regarding clearing the eligibility test for the post of Lecturers or similar test accredited by the U.G.C. The exemption granted in favour of the M.Phil. or Ph.D. candidates, akin to the one under the note, in Schedule I of the 2000 Regulations, was also a subject matter of challenge and the Supreme Court held that granting of such exemption did not run contrary to the requirement prescribed by the Commission in the Regulations of 1991 read with circular dated 10th February, 1993 and 15th June, 1993 which were applicable at the relevant time and the amendment notification dated 21st June, 1995 was also upheld.

16. The Regulations framed by the Commission are applicable to the universities in the State if the State Government has adopted them by way of a Government Resolution. The 1991 Regulations as well as 2000 Regulations have been adopted by the State Government, and the State Government did not give any other relaxation in addition to the relaxations already provided under clause 2 of the 2000 Regulations. It also laid down that the 2000 Regulations were being implemented from 4th April, 2000. It was further clarified that appointments made contrary to the Regulations shall not be eligible to receive the grant in aid from the State Government. The purport of this Government Resolution was, therefore, clear and loud to the universities as well as to the colleges/ institutions affiliated to them viz. you appoint the teachers who meet the qualifications if you want to receive the grant in aid from the State Government, lest you do not receive any grants. The relaxation, which was given by the State Government in the earlier Government Resolution dated 11th December, 1999, was only in respect of candidates with Ph.D. qualifications i.e. on par with the 1991 Regulations amended in 1995. However, this was not repeated in the Government Resolution dated 13th June, 2000.

Nevertheless, the 2000 Regulations, granting exemption to the M.Phil. Degree holders as well as the Ph.D. candidates, are applicable in the State of Maharashtra as well, even as at present. Besides this, there is no other relaxation in terms of qualifications required for the post of Lecturer. These Regulations are, therefore, binding on the universities and their affiliated colleges who are aided by the State Government.

17. Amongst the petitioners, before us, there is no doubt that none of them holds a Ph.D. degree or has submitted thesis for Ph.D. prior to 31st December, 1993. None of them has completed the M.Phil. degree and all of them do not possess the NET/SET qualifications, as at present. The Petitioners, who are before us, could be categorised in the following groups:

(a) Appointees from 12th December, 1999 to 3rd April, 2000.

(b) Appointees from 4th April, 2000 to 12th June, 2000.

18. When the appointments are made to the post of Lecturer they are initially appointed on probation for a period of two years which is required to be extended for a further period of one year under the concerned universitys statutes. The Petitioners, who were appointed on or after 11th December, 1999, were admittedly on probation as on 18th of October, 2001 when the impugned Resolution was issued by the State Government. The first group of appointees (appointees from 11th December, 1999 to 3rd April, 2000) were admittedly covered by the 1991 Regulations as amended in 1995 by the Commission and which was amendment was upheld by the Apex Court in the case of University Grants Commission (supra). They do not possess the qualifications prescribed in terms of clause 2 read with the Schedule annexed to the Regulations for the post of Lecturer. The relaxation, which was contemplated in educational qualifications for appointment to the post of Lecturers, was only in term of the first proviso thereunder. There is nothing on record to show, before us, that any of the universities had submitted a proposal for approval to the Commission in respect of any post or in respect of any Petitioner. It was necessary in respect of such candidates that before the approval was granted, by the concerned universities, to such appointments, proposals were moved to the Commission for seeking approval in advance in relaxation of qualifications, so long as the university is concerned wanted to remain within the purview of the U.G.C. Act and the colleges concerned were desirous for grant-in-aid from the State Government for these appointments. If the colleges/ institutions concerned did not expect any grants from the State Government, they were free to appoint such unqualified Lecturers and the Commission would not come in their way as held by the Apex Court in the case of University of Delhi (supra). As long as the universities concerned wanted tobe covered under the provisions of the U.G.C. Act and the colleges/ institutions affiliated to these universities were seeking grant-in-aid from the State Government, it was imperative that they complied with the provisions of the 1991 Regulations for these appointments. The appointments so made were per-se illegal inasmuch as they did not meet the educational qualifications and the relaxation clause was not complied with. The qualifications prescribed vide resolution dated 11th December, 1999 did not provide for any relaxation in qualifications save and except those provided in the 1991 Regulations, as amended in 1995.

19. When the 2000 Regulations were framed by the Commission, the qualifications were maintained and the relaxation clause was modified thereby vesting the full authority with the Commission alone and the role of the Universities concerned, for granting approval, was removed. These Regulations have been adopted by the State Government by the Resolution dated 13th June, 2000 but retrospectively. The appointees in the second group i.e. from 4th April, 2000 to 13th June, 2000 have not brought on record whether any such proposals, as contemplated under proviso 1 of clause 2, of these Regulations were moved before the U.G.C. for the respective subjects. The amended Regulations have considered the contingencies in different subjects and made a provision for granting relaxation on having been satisfied regarding the existence of such difficulties or lack of infrastructure etc. and that too for a limited period. In subjects like Urdu, Pali etc. where postgraduation studies are conducted by the Dr. Babasaheb Ambedkar Marathwada University at Aurangabad, there is a possibility that the necessary facilities for NET/ SET examinations may not be available or the number of candidates, who have successfully completed these qualifications, is inadequate. In such an eventuality, the Commission has provided for granting relaxation. The universities concerned are required to approach the Commission making out a case for relaxation in the concerned subjects before the subject appointments are approved by them and if the approvals are granted, without complying with the requirements of the said proviso, obviously the appointments would be illegal being contrary to the Regulations.

20. So far as the third group is concerned, we have no hesitation in our mind to hold that these appointments have been made in flagrant violation of the 2000 Regulations. The State Government virtually issued a warning to the Universities, Colleges and/ or Institutions not to appoint Lecturers who did not meet the qualifications, as prescribed by the Commission vide resolution dated 13th June, 2000. When these appointments were made the amended proviso to Clause 2 of the 2000 Regulations was known to every one concerned, including the appointees, and they ought to be aware that they were not qualified for these appointments unless approval from the U.G.C. was obtained in advance. In none of these three groups the Universities concerned have complied with the requirements of first proviso of clause 2 of the 1991 Regulations as well as 2000 Regulations and all the colleges/ institutions where the petitioners are working, are aided institutions and, therefore, these Regulations are binding on them.

21. Shri Shah, the learned senior counsel, who spearheaded the arguments on behalf of all the Petitioners, addressed us on the doctrine of promissory estoppel. In the case of "Council of Civil Services Union V/s Minister for the Civil Services" [(1984) 3 All ER 935] such an issue arose for considerations and the Court observed:

"An aggrieved person was entitled to invoke judicial review if he showed that a decision of a public authority affected him by depriving him of some benefit or advantage which in the past he had been permitted to enjoy and which he could legitimately expect tobe permitted to continue to enjoy either until he was given reasons for its withdrawal and the opportunity to comment on those reasons or because he had received an assurance that it would not be withdrawn before he had been given the opportunity of making representation against the withdrawal."

Further, in Breen V/s Amalgamated Engineering Union" [(1971) 2 Queens Bench Division 175] turning down the plea of promissory estoppel the Court observed:

"If a man seeks a privilege to which he has no particular claim - such as appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given. ... ... "

22. In the case of "Osmania University V/s R. Madhavi and others" [AIR 1998 A.P. 130], as relied upon by the Petitioners, the Division Bench, while dealing with the doctrine of legitimate expectations, observed, thus:

"6.Coming to the scope of judicial review when a challenge is made on the basis of the doctrine of legitimate expectation, after referring to several judgments of the Courts in England, the Supreme Court pointed out, the doctrine of legitimate expectation does not give scope to claim relief straightway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words where a persons legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. ... ..."

By circular dated 28th April, 1994 relaxation was granted for NET/ SET qualifications to those lecturers who were appointed between the period from 27th February, 1989 to 31st March, 1990. Similarly, those who were appointed upto 19th September, 1991 and had possessed Masters degree with 55% or more marks were also exempted from acquiring the M.Phil. degree. The period for acquiring NET/ SET qualifications was also extended upto 31st March, 1996 and failure to do so, on the part of these appointees prior to 19th September, 1991, would result in termination of their services, was also made clear. However, this relaxation was subsequently withdrawn by Resolution dated 22nd December, 1995 by the State Government and thus the promise of date of extension upto 31st March, 1996 to acquire the NET/ SET qualifications was finally withdrawn by the said Resolution. This decision of the State Government was again reiterated and confirmed by the subsequent Resolution dated 11th December, 1999. The appointees on or after 12th December, 1999 can not claim that any promise was made by the State Government to relax qualifications and more particularly the passing of NET/ SET examinations. None of them can, therefore, invoke the doctrine of legitimate expectations.

23. The scheme of the 1991 Regulations as well as the 2000 Regulations, as analysed by us, has not aroused any expectations except the relaxation/ concession clause under the first proviso to clause 2 thereunder. Similarly, by the amendments carried out in 1995 the Commission granted some concessions in respect of the candidates who possessed the M.Phil./ Ph.D. qualifications or who had submitted their thesis before the cut off date. There were no promises of any concession or any relaxation in case of other candidates who did not have the qualifications of M.Phil. or Ph.D., from passing the NET/ SET examination and a discretion was vested with the University in the 1991 Regulations to approach the Commission for approval in advance for obtaining approval in respect of some posts. This concession was subsequently modified in the 2000 Regulations in respect of subjects but the Universities power to grant such relaxation is removed and the power is now vested with the Commission. The Government of Maharashtra, while adopting these Regulations by the respective resolutions, has not gone beyond the Regulations and none of the Resolutions issued on 11th December, 1999 and thereafter have contemplated any concessions to the candidates similarly placed to the Petitioners. The State Government did not hold a promise at any time after 11th December, 1999 to the effect that the candidates not possessing the NET/ SET qualifications would be considered for appointment as Lecturers in the private aided colleges or in the colleges run by the State Government. The arguments were perhaps based on the premises that the State Government had made some promise of concession but the record does not support this presumption. We, therefore, hold that the doctrine of legitimate expectation is not applicable while deciding the legality of the impugned Resolution dated 18th October, 2001.

24. We shall now proceed to examine each of the clauses of the Government Resolution dated 18th of October, 2001. In the first clause the resolution dated 22nd December, 1995 came tobe withdrawn. In the second clause it has been stated that the Lecturers, who did not possess the NET/ SET qualifications and who were appointed during the period from 19th September, 1991 to 31st December, 1993 under the aided, unaided colleges/ institutions through the selection committee would not be discontinued. They are, on the other hand, required to obtain these qualifications latest by December, 2003. We do not find anything wrong with these conditions.

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It is the same doctrine of legitimate expectation which perhaps weighed in the mind of the Government. With a benevolent intention the Government decided to extend this outer limit upto December, 2003 for all those who have been appointed upto 11th December, 1999 though these concessions were in fact withdrawn vide Resolution dated 22nd December, 1995. However, a finality to this withdrawal was given vide the Resolution dated 11th December, 1999 only, in view of the following preamble thereto.:

"Government of Maharashtra had approved the implementation of revised pay scales for University and College teachers with effect from 1st January, 1986 vide Government Resolution, Education and Employment Department No. NGC 1286/(1224)/UNI.4, dated 27th February, 1989. After appointment of the Fifth Pay Commission for Central Government employees, the University Grants Commission had appointed a Committee under Chairmanship of Prof. Rastogi to examine the present structure of emoluments and conditions of service of University and College teachers. After considering the Rastogi Committees Report, the University Grants Commission submitted its recommendations to the Government of India. After examination of this report, Government of India evolved a scheme of pay revision for the University and College Teachers and other measures for improvement of standards in higher education. By their letter dated 27th July, 1998, and subsequent letters dated 22nd September, 1998 and 6th November, 1998, the Government of India accepted and approved the recommendations of UGC to Central Universities and Colleges thereunder. Similarly, the Government of India recommended to the state Government to implement this scheme in the State Universities and affiliated Colleges. The question of implementing Government of Indias scheme of revision of pay scales of University and College teachers and other relevant guidelines and notifications issued by U.G.C. from time to time was under consideration of the State Government. After careful consideration of the Government of Indias Package Scheme, 1996 for maintenance of standards in Higher Education, the State Government has now decided to implement the revised pay scales and the terms and conditions of service as detailed below."

25. The next sub clause of clause 2 viz. subclause

(b) states that those lecturers who are not successful in obtaining the NET/ SET qualifications by December, 2003 will be continued in service till their retirement and except the annual increment they shall not be entitled for any other benefits like financial benefits, promotion, senior grade or selection grade. It further states that till their retirement they shall be continued in the pay scale of Rs.8,000-13,5000. We certainly find fault with this clause. When the Government has adopted the Regulations as framed by the Commission and if the Commission does not provide for such a clause in its Regulations, the State Government cannot deviate from the said Regulations if the appointees upto 11th December, 1999 failed to obtain the NET/ SET qualifications by December, 2003. Undoubtedly they continued tobe unqualified to hold the post of Lecturer and they can not be continued beyond December, 2003. The concession granted by the State Government in this clause is contrary to the Regulations framed by the Commission. In case there are institutions/ universities who do not want to be covered under the U.G.C. Act, the position would be different but the Government Resolution dated 18th October, 2001 is in respect of all those aided, unaided colleges/ institutions covered under the U.G.C. Act. Though education is a subject in the concurrent list i.e. List III under the Seventh Schedule (Serial No.25), the State Governments power in that regard is subject to the provisions of Entry 63, 64, 65 and 66 and List-I under the said Schedule. The Government adopted the 2000 Regulations framed by the Commission in toto vide Government Resolution dated 13th June, 2000 and retrospectively from 4th April, 2000. Under these circumstances, the Governments decision of granting concession, as set out in clause 2 (b) of the impugned Government Resolution, cannot be sustained.

26. The impugned clause i.e. clause 2 (e) in the Government Resolution dated 18th of October, 2001, states that all the appointees to the post of Lecturer, whose appointments are after 11th December, 1999 (who have been classified in the three different groups, in this judgment) would not be eligible for the concessions granted in subclause (a) as well as (c) of clause 2 and they are liable tobe removed from service before the completion of their probationary period. None of the petitioners, who are before us, have been confirmed in service before the impugned Government Resolution was issued. The probationers do not have a vested right of being confirmed in service and more so when they do not meet the requirements of prescribed qualifications for appointment to the post which they hold. Vide Government Resolution dated 11th December, 1999 the State Government had made known its policy in no uncertain words to all the concerned, including the universities and colleges/ institutions and stated that the minimum qualifications required for the post of Lecturer, Reader, Professor, Assistant Director of Physical Education, Deputy Director of Physical Education, Director of Physical Education, Assistant Librarian, Deputy Librarian, Librarian and Registrars would be those as prescribed by the Commission and accepted by the State Government, from time to time. This resolution had also referred to the scheme formulated by the Commission vide letter dated 24th December, 1998 wherein the minimum qualifications were stipulated for the post of Lecturer under clause 4.4.0. These qualifications were set out in the following words:

"Good academic record with at least 55% of marks or an equivalent grade of B in the 7 point scale with latter grades O, A, B, C, D, E & F at the Masters degree level in the relevant subject from an Indian University or equivalent degree from a foreign university.

Besides fulfilling the above qualifications, candidates should have cleared the eligibility test (NET) for lecturers conducted by the UGC, CSIR or similar test accredited by the U.G.C."

By the Resolution dated 11th December, 1999 the scheme of 1998 framed by the U.G.C. was adopted and followed in toto, including the qualifications for the post of Lecturer. In view of this announcement of the State policy the universities or colleges/ institutions were not allowed to appoint candidates to the post of Lecturers who did not possess the NET qualifications or its equivalent from 12th December, 1999 unless these appointments were covered under the first proviso to clause 2 of the 1991 Regulations. Even when the Government issued its Resolution dated 13th of June, 2000, adopting the 2000 Regulations framed by the Commission, there was no concession granted, except the concession in the first proviso to clause 2 therein and, therefore, in respect of the appointments made after 13th June, 2000 also the universities and colleges/ institutions were under an obligation to ensure that the candidates appointed to the post of Lecturer did possess the qualifications of NET/ SET unless the Commission had granted prior approval within the ambit of the first proviso to clause 2 of the 2000 Regulations. Same is the case in respect of those appointees after 13th of June, 2000 till 18th of October, 2001. None of the appointees in these three groups fulfill the eligibility conditions in respect of the qualifications and, therefore, they obviously stand in the category of unqualified candidates or ineligible candidates.

Does it mean that every one of them is liable tobe removed from service during the probationary period or thereafter. This question cannot be answered in general terms on the face of the relaxation granted under the first proviso to clause 2 of the 1991 Regulations as well as 2000 Regulations. It would be, therefore, necessary to examine each case under this proviso and those who did not satisfy the requirements therein must obviously vacate the posts. We deem it appropriate to give these clarification in view of the language of subclause (e) of clause 2 of the impugned Government Resolution dated 18th October, 2001. It would be necessary for the concerned university or the college/ institution to ascertain whether the appointee concerned is covered by the benefit under the first proviso to clause 2 of the 1991 Regulations or 2000 Regulations before taking the final decision of retention or removal as the case may be. The State Governments decision impugned before us, cannot be read in isolation and it must be read in conjunction with the 1991 as well as 2000 Regulations. A particular university or college/ institution may justifiably put up a case before the Commission regarding non-availability of adequate facilities for NET/ SET examination and / or inadequate number of qualified candidates in a particular subject and more particularly against the posts reserved. These parameters/ prevailing conditions could be examined by the Commission which is the final authority and the Commission has retained the discretion for applying its mind to all these ground realities and take appropriate decision of granting concession in favour of such subjects. This discretion of the UGC cannot be taken away by the impugned Resolution which has tobe read as an announcement of the Government policy tobe implemented on the lines of the Regulations framed by the Commission and not in isolation.

27. Shri Shah, the learned counsel for the Petitioners, placed before us a mercy petition, by relying upon a decision of the Supreme Court in the case of "H. C. Puttaswamy and others V/s The Honble Chief Justice of Karnataka High Court, Bangalore and others" and urged before us to hold that as a matter of one time concession all those unqualified Lecturers, who are appointed prior to 13th of June, 2000 or 18th of October, 2001, should be held tobe eligible for the concessions which have been granted in favour of the candidates who have been appointed on or before 11th December, 1999. We are afraid, this cannot be done by us while exercising our powers under Article 226 of the Constitution and more so on the face of the Regulations framed by the Commission which is a statutory body created under the U.G.C. Act. The Regulations framed by the Commission have also provided some room for relaxation and the concerned universities/ colleges/ institutions can approach the Commission for exercise of this power of relaxation in a given subject and for a specific period. It is not for this Court to exercise such powers. Shri Dhobale also argued on the special provisions set out by the Constitution under Article 371(2)(c) of the Constitution. He urged before us that concessions are required tobe continued in favour of the candidates coming from backward regions as well as backward classes. The language of Article 371 does not contemplate concessions or relaxations tobe granted for holding an academic post in technical education or higher education. The Commission is an apex body who has been bestowed with the powers to frame the requirement of qualifications and other eligibility conditions and has accordingly framed the Regulations under which no relaxation is provided from the requirement of qualifications in respect of the candidates coming from either the backward regions or from the backward classes except a relaxation of 5% (from 55 to 50%) of the marks at the Masters level for the SC/ ST category. The Commission has, thus, considered the subject matter and granted some relaxation. The submissions for further concessions made by the learned counsel do not impress us.

28. We have also noted that the title of the 1991 Regulations framed by the Commission is different from the title of the 2000 Regulations. The earlier Regulations were titled as "the University Grants Commission (Qualifications required of a person tobe appointed to the teaching staff of the University and institutions affiliated to it) Regulations, 1991, whereas the later Regulations were titled as "the University Grants Commission (minimum qualifications required for the appointment and Career Advancement of teachers in Universities and institutions affiliated to it) Regulations, 2000". The emphasis, while framing the later Regulations, was for prescribing minimum qualifications required for appointment and for the career advancement of teachers in the universities and institutions affiliated to it. There was no emphasis in this regard in the 1991 Regulations. This deliberate change in the title of the Regulations also speaks about the intentions of the Commission to lay down a minimum qualifications for appointment and insisted that the teachers with these minimum qualifications are only appointed, subject, however, to the provision of relaxation in specific cases. In the impugned Resolution dated 18th of October, 2001 the State Government has, in clause 3, called upon the Universities and affiliated colleges to implement the 2000 Regulations framed by the Commission and not to appoint lecturers who do not meet the qualifications set out in these Regulations. If appointments are made of ineligible candidates the State Government will not approve such appointments and grants will not be released in respect of them. The State Government is, therefore, mindful of the legal position that the affiliated colleges and the universities are bound by the Regulations framed by the Commission so long as they desire to be governed by the provisions of the U.G.C. Act and receive grants from the State Government.

29. It is well established by a catena of judicial enunciations that the academic standards as prescribed by the respective nodal agencies created by an Act of Parliament/ Legislature are tobe followed and judicial interference in such areas is uncalled for. The Commission is a body created by the U.G.C. Act and in exercise of its statutory powers has prescribed the minimum qualifications for appointment to the post of lecturers as well as other faculty members. It is not safe for this Court to sit in appeal over the decision of the Commission in such matters. The academic standards, prescribed by the Commission, including the minimum qualifications prescribed for appointment of teaching staff, cannot be a subject matter of judicial review and this Court would not venture to grant any relaxation in such qualifications, more so when the Commission itself has retained powers of relaxations in the given cases and for a specific period. The State Government, by the impugned Resolution, has only announced its determination to implement the 2000 Regulations meticulously and also ensured that all the colleges/ institutions receiving grants, follow the same, failing which the approvals to such appointments would not be granted and they would forfeit the grants available from the Government. It is for these reasons we do not agree with the view taken by the learned Single Judge of the Calcutta High Court in the case of "Amiyakumar Ghosh" (supra).

30. In the result, the petition is rejected summarily subject to our observations that clause 2 (b) of the impugned Government Resolution dated 18th October, 2001 is unsustainable and the same is quashed and set aside. We also hold that the cases of candidates appointed from 12th October, 1999 till 18th October, 2001 are required tobe examined so as to ascertain the applicability of the first proviso to clause 2 of the 1991 Regulations as well as 2000 Regulations before their services are sought to be terminated by the respective universities and/ or colleges/ institutions.