Page No.# 1/17 vs The Union Of India And 4 Ors. E
2025 Latest Caselaw 3261 Gua

Gauhati High Court

Page No.# 1/17 vs The Union Of India And 4 Ors. E on 18 February, 2025

Author: Suman Shyam

Bench: Suman Shyam

                                                              Page No.# 1/17

GAHC010174652022




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WA/302/2022

         SHREEMOYE BORDOLOI AND 2 ORS.
         W/O DR. SURAJIT KONWAR, RESIDENT OF DIBRUGARH,PO DIBRUGARH,
         DIST DIBRUGARH, ASSAM,786004

         2: DR. ARCHITA BHATTACHARYYA
         W/O MRINMOY DUTTA

         RESIDENT OF HOUSE NO. 2
         NEAR JAGANATH HOMEO HALL
         K.K BHATTA ROAD
         CHENIKUTHI
         DIST KAMRUP M ASSAM 781003

         3: DR. PRANITA SARMAH
          D/O MONIRAM SARMAH

         RESIDENT OF RUPNAGAR
         NEAR NORTH LAKHIMPUR COLLEGE

         PO KHELMATI
         DIST LAKHIMPUR
         ASSAM 78703

         VERSUS

         THE UNION OF INDIA AND 4 ORS. E
         REPRESENTED BY THE SECRETARY ,MINISTRY OF EDUCATION
         (DEPARTMENT OF HIGHER EDUCATION) 127-C, SHASTRI BHAWAN, NEW
         DELHI

         2:THE STATE OF ASSAM
          REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM
          HIGHER EDUCATION DEPARTMENT
                                                                        Page No.# 2/17

             DISPUR
             GUWAHATI 06

            3:THE JOINT SECRETARY
            TO THE GOVT. OF ASSAM
             HIGHER EDUCATION DEPARTMENT
             DISPUR
             GUWAHATI 06

            4:THE DIRECTOR OF HIGHER EDUCATION
             KAHILIPARA
             GUWAHATI 19

            5:THE UNIVERSITY GRANTS COMMISSION
             REPRESENTED BY THE CHAIRMAN
             HAVING ITS REGISTERED OFFICE AT BAHADUR SHAH ZAFAR MARG
             NEW DELHI 11000

Advocate for the Petitioner   : MR. M K CHOUDHURY, MR D MAHANTA,MR. M DUTTA,MR K
M BORA

Advocate for the Respondent : ASSTT.S.G.I., SC, HIGHER EDU,SC, U G C

BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SUMAN SHYAM

Date of hearing : 06.02.2025

Date of judgment : 18.02.2025

JUDGMENT & ORDER (CAV)

(Suman Shyam,J)

Heard Mr. M. K. Choudhury, learned senior counsel assisted by Mr. M. Dutta,

learned counsel appearing for the writ appellants. We have also heard Mr. K. Gogoi

and Mr. S. Das, learned Standing Counsel, Higher Education Department,

Government of Assam. Mr. Ritwick Bhuyan, learned counsel has appeared on behalf Page No.# 3/17

of Mr. A. Chamuah, learned Standing Counsel for the UGC.

2. This intra court appeal is directed against the judgment and order dated

21.06.2022 passed by the learned Single Judge disposing of three writ petitions viz.,

WP(C) No.1040/2022, WP(C) No.2100/2022 and WP(C) No.2515/2022 raising a

common grievance before the court. The three appellants in the instant Writ Appeal

were amongst the 7 writ petitioners in WP(C) No.2100/2022 and have approached

this Court by filing the present Writ Appeal assailing the judgment and order dated

21.06.2022 arising out of WP(C) No.2100/2022 on several grounds, as enumerated in

the memorandum of appeal.

3. The facts of the case lie in a narrow compass. The present appellants and the

writ petitioners in WP(C) No.1040/2022 as well as WP(C) No.2515/2022 all claim to be

Masters degree holders in various subjects and they also fulfill the UGC norms by

clearing the exams such as NET, SLET besides holding Ph.D. degree which are the

qualifications necessary for participating in the selection process for the post of

Assistant Professors in various Colleges in Assam. The case of the petitioners, in a

nutshell, is that having acquired their respective qualifications more than 10/15 years

back and during a time when a more conservative marking system was prevalent,

the petitioners are at a clear disadvantage as compared to the similarly situated

candidates who have recently acquired such qualifications since they are the

beneficiaries of a more liberal system of awarding of marks. According to the writ

petitioners, Appendix-III, Table-II(c) of the Notification dated 30.06.2010 issued by the

University Grants Commission (UGC), which lays down the qualification and selection Page No.# 4/17

criteria for appointment of teachers and other academic staff in the Universities and

Colleges, provides that only 50% weightage is to be given to the academic

qualifications. However, as per the guidelines issued by the Director of Higher

Education, Assam on 13.12.2011, as modified by the subsequent guidelines dated

24.01.2022, 72% weightage has been prescribed for the academic qualifications of

such candidates for the purpose of selection and appointment in the post of Assistant

Professor in the Colleges in Assam. The writ appellants and the other writ petitioners

had therefore, contended before the learned Single Judge that the criteria laid

down by the UGC Notification dated 30.06.2010 would be mandatory and to that

extent, the Government of Assam would be bound to follow such criteria of 50%

weightage to academic qualification, as laid down by the UGC, while making

selection and appointment in the post of Assistant Professors in the Colleges in Assam.

4. Before the learned Single Judge, the writ appellants had, inter-alia, assailed

the Notification dated 24.01.2022 issued by the Secretary to the Government of

Assam, Higher Education Department for not being in conformity with UGC

Regulations, 2010 with a further prayer to issue a writ of mandamus directing the

authorities not to issue fresh advertisement or complete the selection process without

properly following the UGC regulations.

5. According to the writ appellants, the criteria laid down in the Notification

dated 30.06.2010 is not only mandatory but the Government of Assam, in the Higher

Education Department, has also adopted the same vide Notification dated

13.12.2011 as well as by the subsequent Notification dated 24.01.2022 and to that Page No.# 5/17

extent, any departure therefrom while conducting the selection process for filing up

the posts of Assistant Professors would be wholly arbitrary, illegal and hence, liable to

be set aside by this Court.

6. The Director of Higher Education, Government of Assam had maintained a

pleaded stand before the learned Single Judge that the UGC regulations published

on 30.06.2010 had never been adopted by the Government of Assam and that those

are not mandatory for the State. The UGC authorities had, however, not filed any

counter-affidavit in the writ petitions.

7. Taking note of the case projected by either side, the learned Single Judge has

opined that the State Government of Assam had never adopted the UGC regulations

of 2010 in its entirety although it may be correct that some of the provisions of the said

Notification/guideline have been followed by the State from time to time. Observing

that the expenditure for maintenance of the Government Colleges in Assam are

being entirely met by the State Government except for some occasional amounts

received from the UGC for developmental purpose, the learned Single Judge had

accepted the stand of the Higher Education Department, Government of Assam that

the provisions of the UGC regulations of 2010 were not applicable to the Colleges

under the Higher Education Department in its entirety, except for a few specific

provisions, which have been adopted by the State. In other words, the learned Single

Judge has rejected the contention of the writ appellants/writ petitioners that the UGC

guidelines of 30.06.2010 were mandatory for the State of Assam as well as the plea

taken by the writ petitioners that those guidelines are applicable to the Colleges in Page No.# 6/17

Assam in its entirety.

8. Assailing the impugned judgment and order dated 21.06.2022, Mr. M. K.

Choudhury, learned senior counsel appearing for the writ appellants has relied upon

and referred to the decisions of the Supreme Court of India rendered in the case of

Kalyani Mathivanan vs. K. V. Jeyaraj & others reported in (2015) 6 SCC 363 as well as

in the case of Gambhirdhan K. Gadvi Vs. State of Gujarat & others reported in (2022) 5

SCC 179 to argue that the UGC regulations of 2010 are mandatory guidelines which

would have to be scrupulously adhered to by all the Universities and Colleges

including those managed by the State Government of Assam. According to Mr.

Choudhury, the said legal position has further been clarified in a subsequent decision

rendered by the Division Bench of this Court in the case of Smti. Asha Rani Brahma Vs.

Smti. Binika Goyari reported in 2023 O Supreme (Gau) 313. Therefore, the learned

Single Judge has erred in law in arriving at a conclusion that the UGC regulations of

2010 were not mandatory in nature.

9. By referring to the Notification dated 13.12.2011 as well as the subsequent

Notification dated 24.01.2022 issued by the State Government of Assam, Mr.

Choudhury, learned senior counsel for the appellant has further argued that the

mention of Clauses 3.0.0./4.0.0./4.4.0./4.4.1. of the UGC regulations of 30.06.2010 in

those notifications leaves no room for doubt that the State Government of Assam, in

the Higher Education Department, has consciously adopted the UGC guidelines of

2010. According to Mr. Choudhury, the fact that Rule 7(c) of the Assam College

Employees (Provincialisation) Rules, 2010 also lays down the requirement to follow Page No.# 7/17

UGC prescribed norms for direct recruitment in the Colleges of Assam is ample proof

of the fact that the Regulations of 2010 have not only been adopted by the State

Government of Assam in its entirety but the same is also mandatorily applicable in

case of selection and appointment of Teachers/Assistant Professors in the Colleges in

Assam. In other words, according to Mr. Choudhury, the UGC regulations of 2010

would have a binding effect on the Higher Education Department of the

Government of Assam. If that be so, submits Mr. Choudhury, the State would be

bound to follow the criteria prescribed by the UGC whereby, only 50% weightage is to

be given to the academic qualification of the candidates as compared to the

prescription of 72% weightage, which is presently being followed under the impugned

Notification dated 24.01.2022.

10. Mr. K. Gogoi, learned Standing Counsel for the Education Department,

Government of Assam has maintained that it is the consistent stand of the

Department that the UGC regulations of 2010 had not been adopted by the

Government of Assam in its entirety although some of the provisions contained in the

regulation have been followed from time to time while laying down the qualification,

experience and selection criteria of Teachers in the Government Colleges in Assam.

Mr. Gogoi has further submitted that all the Colleges in the State of Assam are funded

by the Government of Assam with no financial aid from the UGC although certain

operational grants are occasionally received from the UGC from time to time for the

developmental purpose of those Colleges. According to Mr. Gogoi, the decision of

the Supreme Court in the case of Kalyani Mathivanan (supra) does not lay down the

proposition that the UGC regulation of 2010 is binding on all Colleges run by the Page No.# 8/17

different State Governments. Mr. Gogoi further submits that the decision in the case

of Gambhirdhan K. Gadvi (supra) has been rendered in the facts of that case and

therefore, the ratio would not have any application in the present case.

11. We have considered the submissions made at the Bar and have also carefully

examined the materials available on record.

12. At the very outset, it would be pertinent to mention herein that the UGC

regulations of 2010, which were framed in exercise of powers conferred under clause

(e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act,

1956 was notified on 30.06.2010. The Regulations lay down guidelines pertaining to

minimum qualification for appointment of Teachers and other academic staff in the

Universities and Colleges for the purpose of maintenance of standards in higher

education. Clause 3.0.0. and the various sub-clauses coming thereunder contain

various provisions dealing with recruitment and qualification for the posts of Assistant

Professors, Associate Professors and Professors. Clause 4.0.0. and the sub-clauses

coming thereunder deal with direct recruitment in the post of Professor, Principal and

Associate Professor. Clause 4.4.1. lays down the criteria for direct recruitment of

Assistant Professor.

13. The title of the regulations makes it amply clear that the same 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. Clause 3 of the regulation provides for the

consequences in case of failure of the Universities to comply with the Page No.# 9/17

recommendations of the Commission, according to which, in the event of such

failure to comply with the regulations, the Commission may withhold from the

University the grants proposed to be made out of the funds of the Commission.

14. It is no doubt correct that the Notifications dated 13.12.2011 as well as the

24.01.2022 issued by the Higher Education Department, Government of Assam there is

reference of clauses 3.0.0./4.0.0./4.4.0./4.4.1. of the UGC regulations under the broad

heading "Eligibility Qualification". Clauses 5.1.0. and 5.1.4. of the Regulations of 2010

have also been mentioned in the said notification against sub-heading "Selection

Committee". Rule 7(c) of the Rules of 2010 also refers to the UGC norms for direct

recruitment of Teachers in the Colleges in Assam. From the above, it is clear that the

Higher Education Department of the State Government of Assam has followed, in

principle, some of the criteria laid down by the UGC regulations of 2010 for the

purpose of selection and appointment of Teachers in the Colleges. However, the said

notifications nowhere mention that the Government of Assam has adopted the UGC

regulations of 2010 in its entirety.

15. Since the thrust of argument of the learned counsel for the appellants is that

the Government of Assam in the Higher Education Department has formally adopted

the UGC regulations of 2010, we felt it necessary to carefully examine the pleadings

available on record so as to get a clear view of the matter. We find that in the

affidavit filed by the Director of Higher Education, Government of Assam on

21.05.2024, the following statements have been made in paragraph 4 which are

reproduced herein below:-

Page No.# 10/17

"4. That the deponent begs to state that, UGC Regulations on Minimum Qualification for Appointment of Teachers and other Academic Staff in University and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 has not been adopted by the Government of Assam, Higher Education Department till now. The Higher Education Department, Government of Assam issued Guidelines for recruitment/promotion in tune with certain provisions of UGC Regulations, 2010 but the authority of the Government of Assam, Higher Education Department has not adopted UGC Regulations 2010."

16. Thus the stand taken by the Director of Higher Education in the affidavit is very

clear and unequivocal. Notwithstanding the same, the said assertions of the

respondent No.4 could not be rebutted by the writ appellants by placing any cogent

material on record. Therefore, this Court is left with no option but to accept the stand

of the State that the UGC Regulations of 2010 had never been adopted by the State

Government of Assam in its entirety.

17. Coming to the law laid down in the case of Kalyani Mathivanan (supra),

heavily relied upon by Mr. Choudhury, learned senior counsel for the appellants, we

find that the central issue involved in that proceeding was regarding application of

UGC regulation in the matter of appointment of Vice Chancellor. A question had,

therefore, arisen as to whether, the UGC regulations of 2010 were mandatory or

directory in nature. While answering the said question the Hon'ble Supreme Court

had made the following observations in paragraphs 62.2 to 62.5, which are

reproduced herein below :-

"62.2. The UGC Regulations being passed by both the Houses of Parliament, though a sub-ordinate legislation has binding effect on the Universities to which Page No.# 11/17

it applies.

62.3. The 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.

62.4. The 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.

62.5. The 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."

18. From the above decision it is apparent that the UGC regulations of 2010 would

be mandatory in case of Teachers and Academic staff in all the Central Universities

and the Colleges coming thereunder including the institution treated as deemed

Universities whose maintenance and expenditure is met by the UGC. In case of other

institutions the Regulations of 2010 would be directory in nature. It was, therefore, held

that unless the regulations were adopted by the State the question of conflict

between the State Legislation and the Central Legislation would not arise. The ratio

laid down in the case of Kalyani Mathivanan (supra), in paragraphs 62.4 and 62.5

quoted above, in our opinion, would alone be applicable to the facts and

circumstances of the present case. Since the regulations have not been adopted by Page No.# 12/17

the State, the question of repugnancy within the meaning of Article 254 would also

not arise in the present case.

19. To sum up, we hold that the UGC regulations of 2010 shall be mandatory for all

the Universities, Colleges and institutions funded by the UGC. However, the UGC

Regulations cannot be termed as mandatory for those State Government run

institutions not funded by the UGC unless the Regulations are found to have been

adopted by the State in its entirety. It would be an entirely different matter if the UGC

authorities are of the view that despite availing funds the institutions coming under

the State Government of Assam have ignored its regulations. In such cases, the

consequences, as may be prescribed under the law, may ensue which could be

stoppage of grant.

20. As has been noted herein above, the Colleges in Assam are not receiving any

regular grants from the UGC and those are being maintained entirely by the State

Government. Therefore, the question of drawing a presumption that the UGC

Regulations are mandatory also for the Colleges run and maintained by the State

Government, in the light of the ratio laid down in Kalyani Mathivanan (supra), in our

view, would not arise.

21. Coming to the law laid down in the case of Gambhirdhan K. Gadvi (supra),

here also, we find that the issue which had fallen for consideration of the Hon'ble

Supreme Court was entirely different form that involved in the present proceeding. In

the case of Gambhirdhan K. Gadvi (supra) the primary question was as to whether,

the Vice Chancellor of a University could be appointed dehors the UGC regulations, Page No.# 13/17

even if the same was in accordance with the diluted eligibility criteria prescribed by

the State Act. Answering the said question in the negative the Supreme Court has

held that in case of a conflict between the UGC regulations and the State Act, by

virtue of principles of repugnancy enunciated in Article 254 of the Constitution, the

provisions of the UGC regulations would prevail. The core issue in the case of

Gambhirdhan K. Gadvi (supra) was as to whether the UGC Regulations would be

mandatory in the matter of selection and appointment of Vice-Chancellor of an

University and not as to whether the regulations would be mandatory for

appointment of College Teachers even in the Colleges run and maintained by the

State Government if such regulations had not been adopted by the State. As such,

the ratio laid down in the case of Gambhirdhan K. Gadvi (supra) would, in our

considered view, also not have any application in the facts of the present case.

22. In the case of Asha Rani Brahma (supra), the selection of the successful

candidate for appointment in the post of Assistant Professor was called into question

by the writ petitioner, who was the candidate placed at serial No.2 in order of merit,

by contending that 2 marks had been wrongly awarded to the successful candidate

for the teaching experience she had gathered while undergoing Junior Research

Fellowship (JRF) under the UGC although, according to the writ petitioner, those 2

marks could not have been awarded to the successful candidate as the same was

not permissible under the UGC guidelines. In other words, it was the case of the writ

petitioner therein that since the UGC guidelines did not permit a JRF to indulge in

teaching activities, no credit in the form of 2 extra marks could have been awarded

to the candidate on account of her teaching experience while functioning as JRF.

Page No.# 14/17

The Division Bench of this Court, by relying on the law laid down in the case of

Gambhirdhan K. Gadvi (supra) has observed that the law has been set at rest to the

extent that the UGC guidelines are mandatory for all educational institutions and

thereby upheld the judgment of the learned Single Judge whereby, the selection of

the successful candidate i.e. the beneficiary of those 2 additional marks was

interfered with by rejecting the argument that the UGC guidelines did not apply to

the State of Assam. Although Mr. Choudhury has placed heavy reliance on the said

decision of the Division Bench, we are of the view that the decision in Asha Rani

Brahma (supra) was rendered in the facts of that case and by applying the law laid

down in Gambhirdhan K. Gadvi (supra) to the facts of the case. Since the successful

candidate was given the benefit under the UGC regulations in a manner which was

impermissible under the UGC guidelines itself, the ratio laid down in the case of Asha

Rani Brahma (supra), in our view, would not have any bearing in the facts situation of

the present case.

23. After going through the impugned judgment of the learned Single Judge, we

are, therefore, of the unhesitant opinion that the learned Single Judge was wholly

justified in holding that the UGC regulations of 2010 would not have any binding

effect on the State Government of Assam since those have not been adopted by the

State. The mere mention of some of the provisions of the Regulations of 2010 in some

notifications issued by the State Government of Assam cannot be stretched to such

an extent for the Court to hold that the same was sufficient to conclude that the

guidelines had been adopted by the State Government in its entirety. The said

opinion is further emboldened by the undisputed position of fact that the Colleges in Page No.# 15/17

question are entirely run by funds provided by the State Government of Assam,

practically without any financial assistance from the UGC.

24. The UGC being an apex level Institution, inter-alia responsible for laying down

and improving the standard of higher education in the country, it is highly desirable

that all Universities and Colleges in the country adheres to the UGC norms particularly

in the matter of following criteria for recruitment of Teachers so as to attain uniform

standards in higher education. However, that by itself cannot be a valid ground for

the Court to hold that all recommendations and guidelines of the UGC must be

compulsorily followed by all Colleges in the country including those which are not

funded by the UGC even without any formal adoption of the regulations.

25. For the above reasons, we do not find any justifiable ground to interfere with

the impugned judgment and order dated 21.06.2022 passed by the learned Single

Judge.

26. Before parting with the record, we deem it appropriate to point out herein

that, as has been noted above, the primary grievance of the writ appellants appears

to be pertaining to the 72% weightage given under the notification dated 24.01.2022

to academic qualifications as compared to 50% weightage prescribed by the UGC

regulations of 2010. With the hope that such a recourse would enhance their

chances of getting selected and appointed to the post of Assistant Professor the writ

appellants/writ petitions have assailed the notification dated 24.01.2022. It is in that

context that the petitioners have sought a declaration from this Court that the

authorities would be bound to mandatorily apply the criteria laid down by the UGC Page No.# 16/17

regulations of 2010. We, however, find that there is no specific and pleaded

impeachment of the criteria laid down in the notification dated 24.01.2022 on the

grounds that the criteria was completely irrational and arbitrary in nature or that the

State Government is applying the criteria in a selective manner thus extending

discriminatory treatment to the writ appellants/writ petitioners. Notwithstanding the

same, while declining to interfere with the impugned notification dated 24.01.2022

the learned Single Judge has moulded relief for the writ petitioners in the impugned

judgment and order dated 21.06.2022 whereby the following directions were issued

in para 33, which are reproduced herein below :-

"33. Without expressing any view on the aforesaid issue as regards the disadvantageous position that the candidates who acquired their qualification at an earlier period of time may face, we provide that ends of justice would be met, if the authorities conducting the selection procedure embark upon a process of rationalization of the marks and in the event, it is noticed that there is a noticeable variation in the marks of the candidates, who appeared in the qualifying examinations at an earlier period of time in comparison with those who appeared at a later period of time, we leave it to the authorities to devise their own method as to how to rationalize their marks and thereafter take into consideration the rationalized marks of the candidates rather than the numerical marks of the respective candidates as depicted in the respective mark sheets. In our view, the process of rationalization would avoid a situation of any violation of Article 14 of the Constitution of India ."

27. Neither the appellants nor the respondents have raised any grievance with

regard to such directions issued by the learned Single Judge. If that be so, the

authorities, in our view, would be duty-bound to implement the aforesaid directions

contained in paragraph 33 and rationalize the marking criteria in such a manner so Page No.# 17/17

as to eliminate any possibility of discrimination or unfair advantage to a particular

class of candidates. We hope and expect that the necessary steps in this regard will

be initiated by the State and the process would be concluded within a period of six

months from today.

28. With the above observation, the Writ Appeal No.302/2022 stands disposed of.

The parties to bear their own cost.

                          JUDGE                       CHIEF JUSTICE

T U Choudhury/Sr.PS




Comparing Assistant