Gujarat High Court
Mital Daxesh Patel vs State Of Gujarat on 9 August, 2021
Bench: Bhargav D. Karia
C/SCA/11247/2021 ORDER DATED: 09/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11247 of 2021
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MITAL DAXESH PATEL
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR NIRAV R MISHRA(6140) for the Petitioner(s) No. 1
MR RK MISHRA(482) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR DHAWAN JAYSWAL, ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP(99) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 09/08/2021
ORAL ORDER
1. Heard, learned Advocate, Mr. Nirav Mishra,
appearing for the petitioner and the learned AGP,
Mr. Dhawan Jayswal, appearing on advance copy for
Respondent No.1-State.
2. By this petition under Article 226 of the
Constitution of India, the petitioner has prayed
for the following reliefs:
"13. ...
(A) Your Lordships may be pleased to Admit
and allow this petition;
(B) Your Lordships may be pleased to hold
and declare that the action and ianction
on part of the respondent stat authorities
in not appointing the petitioner apropos
to the advertisement issued by the
respondent committee for the post of
teacher for maths / science subject and
C/SCA/11247/2021 ORDER DATED: 09/08/2021
rejecting her after documents verification
stage by stating that the method subjects
of the petitioner at B.Ed. Level are not
in consonance to the Government Resolution
dated 11.01.2021 is illegal, arbitrary,
against the settled principles of law,
ultra vires to Article 14 of the
Constitution of India and therefore Your
Lordships may be pleased to direct the
respondent authorities to appoint the
petitioenr to the post of subject teacher
of maths / science apropos to the
advertisement which is issued by the
respondent committee (at Annexure-A) Page
27-28 for which the petitioner had applied
and was called for documents verification
(at Annexure-E Page 54-56), as the
petitioenr stands entitled to the said
post as she has cleared her Teacher
Aptitude Test with subject of science and
technology / maths (at Annexure-C Page 49)
and therefore, she is enttitled to be
appointed for the post of teacher in the
non-government grant-in-aid school at
secondary school for subject teacher of
maths / science and the criteria laid down
below government Regulation dated
11.01.2021 for possession B.Ed. Degree by
having method subjects of maths and
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science and, technology be read down and
prescribed as maths and / or science and
technology method subjects;
(C) Your Lordships may be pleased to hold
and declare that the Government Resolution
dated 11.01.2021 issued by the Respondent
Education Department (at Annexure-H
(Colly.), Page 59-63 qua prescribing the
method subjects of maths and science and
technology for appointment of teachers for
the subject of maths and science and
technology at Sr. No.11 below Appendix-3,
below Regulation 20(3) of the Gujarat
Secondary and Higher Secondary
Regulations, 1974, is illegal, arbitrary,
unfounded and therefore the same may be
declared as ultra vires to Article 14 and
Article 15 of the Constitution of India;
(D) Your Lordships may be pleased to
further her hold and declare that the
petitioner stands entitled to be appointed
as subject teacher of maths / science
(maths and science and technology at
secondary education level), as the
requirement of method subject of maths
with that of science and technology should
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be read down and prescribed as maths AND /
OR science and technology metohod subject
would be requisite qualification of method
subjects in the B.Ed. Degree for
appointment to the psot of subject
teachers of maths and science and
technology (maths / science) at the
secondary education level for appointment
to the post of teacher and accordingly the
respondent authorities may be directed to
issue appointment order to the petitioner
in respect of the same;
(E) During the pendency, hearing and
final disposal of the petition, Your
Lordships may be pleased to direct the
respondent authorities to issue
appointment order in favour of the
petitioner by including her in the merit
list AND / OR Your Lordships may be
pleased to direct the respondent state
authorities to keep one post vacant qua
the subject teacher of maths / science in
non-government grant-in-aid schools at
secondary level apropos to which the
advertisement (at Annexure - A) was
issued;
C/SCA/11247/2021 ORDER DATED: 09/08/2021
(F) Your Lordships may be pleased to
grant ex parte interim relief in terms of
Prayer (E).
(G) ..."
3. The short question that arises for the
consideration of this Court in this petition is
whether the candidate, who has studied B.Ed. in
the subject for which he/she has not applied for,
to be appointed as Shikshan Sahayak in the
Secondary Section, then, whether, such a
candidate can be considered for appointment on
the post of teacher for the said subjects.
4. The brief facts of the case are that the
petitioner passed her Standard-10 examination
with 77.71% from the Gujarat Secondary and Higher
Secondary Board, Gandhinagar, having mathematics,
as one of the subjects.
4.1 It appears that the petitioner, thereafter,
selected 'B' Group in Science Stream, consisting
of Biology subject at Standard-12. Thereafter,
the petitioner completed her B.Sc. from the M.S.
University, Vadodara, in April 2010 with Zoology,
as the Principal subject and Chemistry and
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Botany, as the subsidiary subjects. The
petitioner also completed her M.Sc. in Zoology
from the M.S. University in April, 2012.
4.2 Thereafter, the petitioner did her B.Ed. From
the M.S. University, Vadodara, in February, 2015,
with the subjects of Teaching of Science and
Teaching of Biology.
4.2.1 Thus, admittedly, the petitioner has not
done B.Ed. With Mathematics and Science, meaning
thereby, the petitioner is not trained, how to
teach Mathematics subject at Secondary Level.
4.3 The petitioner, thereafter, cleared her
Teachers' Aptitude Test ( in short, 'TAT') with
75% for Secondary Section in the year 2019.
4.4 Thereafter, the petitioner applied for the
post of teacher in Higher Secondary and Secondary
schools of non-government grant-in-aid Higher
Secondary Schools and non-government grant-in-aid
Secondary Schools for the Mathematics and Science
subjects, pursuant to the advertisement issued by
Respondent No.2, i.e. the Gujarat State Secondary
and Higher Secondary Educational Staff
Recruitment Selection Committee on 15.01.2021.
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4.5 The petitioner, thereafter, was called for
verification of documents on 10.06.2021, by way
of a call letter and the petitioner remained
present and submitted her documents for
verification. Then, a Provisional Merit-list was
issued, where, the name of the petitioner did not
appear, and therefore, the petitioner made
inquiry with the Respondent-Authorities and she
was told that she is not qualified to teach
Mathematics and Science subjects at Secondary
Level, as per the Government Resolution dated
11.01.2021., as the petitioner has done B.Ed.
with Teaching of Science and Teaching of Biology
subjects.
4.6 The petitioner, therefore, being aggrieved by
her non-selection has challenged the G.R. dated
11.01.2021, by way of this petition with the
prayers, as referred to herein above.
5. Learned Advocate, Mr. Nirav Mishra, appearing
for the petitioner submitted that, admittedly,
the petitioner has not studied the subject of
Mathematics after passing Standard-11, as the
petitioner had opted for 'B' Group in Science
Stream, and therefore, the petitioner has not
studied mathematics subject for almost seven
C/SCA/11247/2021 ORDER DATED: 09/08/2021
years. Therefore, the petitioner did her B.Ed.
with Teaching of Science and Teaching of Biology.
5.1 It was, further, submitted that as per G.R.
dated 11.01.2021 provides that as per Regulations
20(3) to 20(8), 20(10) and 20(A) and 20(B) of the
Gujarat Secondary and Higher Secondary Education
Regulations, 1974 (in short, 'Regulations of
1974'), all the candidates are required to have
educational qualification, as prescribed in
Schedule-F, read with Annexure-III, thereto.
5.2 It was submitted that, as per Schedule-F,
Rule 20(3) of the Regulations of 1974 is amended
to provide that all the candidates must possess
minimum qualification prescribed and also must
have passed TAT examination.
5.3 Learned Advocate, Mr. Mishra, invited the
attention of this Court to Annexure-III, wherein,
at Sr. No.11 for the Mathematics and Science
Technology subjects, the minimum qualification
prescribed at graduation level is B.Sc. With
Mathematics or Statistics or Chemistry or Physics
or Biology, having post graduation with the same
subjects. It was, therefore, submitted that the
petitioner has already done B.Ed. with Teaching
of Science and Teaching of Biology subjects, but,
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the petitioner is not having the subjects of
Teaching of Mathematics and Science Technology at
B.Ed. level, as is prescribed in the
qualification vide Annexure-III to Schedule-F,
which is amended by the G.R. dated 11.01.2021. It
was, therefore, submitted that such description
of qualification of the subjects at B.Ed. level
discriminates and creates a class, within the
class, resulting into violation of Article 14 of
the Constitution of India.
5.4 It was, further, submitted that petitioner
has cleared B.Ed. with the subjects of method of
Teaching of Science and therefore, the insistence
by the impugned G.R. dated 11.01.2021 that a
candidate must have cleared subjects of
Mathematics and Science at B.Ed. level is not
required and is contrary to the basic education
policy. It was submitted that the petitioner is a
science student and she has already studied
Mathematics and therefore, the petitioner is
presumed to be capable of teaching Mathematics
once the petitioner has taken the training to
teach Science and therefore, it cannot be said
that the petitioner must learn teaching of
Mathematics at Secondary Level by pursuing the
course in Mathematics and Science Technology at
B.Ed. course. It was, therefore, submitted that
the petitioner for the all times to come shall
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lose her carrier opportunity to be a teacher in
the subjects of Mathematics and Science, as the
Petitioner has not studied maths subject at B.Ed.
Level.
5.5 It was submitted that this Court in the case
of 'Prajapati Paresh Govindbhai & Others Vs.
State of Gujarat through Principal Secretary &
Others', rendered in Special Civil Application
No. 10199 of 2011 and the allied matters has held
that that the decision of the respondent- State
to exclude and not to permit the students who
have graduated with Sociology as principal
subject from appearing in Teachers' Eligibility
Test ("TET") for higher secondary education in
the State of Gujarat, is illegal and
unconstitutional.
5.6 It was submitted that in facts of the said
case, the petitioners studied post graduation in
Sociology and also passed B.Ed. with Social
Science and according to the petitioners,
Sociology is an integral part of Social Science.
It was held by the Division Bench that any
graduate whether he is B.A, B.Sc. or B. Com. can
appear at the TET examination and is entitled to
get appointment if the said candidate becomes
successful in the merit list on the basis of his
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performance in the TET based on the guidelines
prescribed by the NCTE. It was also submitted
that, in view of the decision of the Division
Bench, subsequently this Court in numbers of
cases has held that the candidates who have
studied in any discipline of graduation can
appear in TET examination.
5.7 It was, therefore, submitted that the
impugned G.R. dated 11.01.2021 is violative of
the basic fundamental rights of the petitioner,
as it denies the opportunity to the petitioner to
become a teacher and therefore, the same is
liable to be quashed and set aside.
6. On the other hand, learned Assistant
Government Pleader Mr. Jayswal appearing for the
Respondent-State submitted that the G.R. dated
11.01.2021 is not a new rule or new G.R. which
has come into effect, but, it is the reiteration
of the policy of the state government as per the
G.R. dated 08.06.2018 which prescribes the
minimum educational qualification for appointment
on the post of teachers in the Secondary and
Higher Secondary Schools. It was, therefore,
submitted that G.R. dated 11.01.2021 is with
regard to appointment of the teachers and the
amendment of the Rules 20(3) to 20(8) of the
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Rules of 1974, is with regard to the appointment
of Sikshan Sahayaks.
6.1 It was, therefore, submitted that the G.R.
dated 11.01.2021 is modification of the earlier
G.R. dated 08.06.2018 which is also referred to
in the reference given in the G.R. dated
11.01.2021. It was also submitted that the
petitioner was well aware of the G.R. dated
11.01.2021 as the same is also referred to in the
advertisement issued by the Respondent on
15.01.2021. It was submitted that the petitioner
cannot be appointed on the post of teacher for
teaching the students of Standard- 9 and 10 in a
Secondary School for the subject of Mathematics
and Science, when the petitioner has not learnt
in B.Ed course as how to teach the Mathematics
to the students at Secondary level.
7. Having heard the learned Advocates for the
respective party and having perused the material
on record, it appears that the G.R. dated
11.01.2021, after taking into consideration the
earlier G.R. dated 08.06.2018 as well as the
suggestions given by the High Level Expert
Committee modified the Rules of 1974, prescribing
the educational qualification for the teachers to
be appointed at Secondary and Higher Secondary
C/SCA/11247/2021 ORDER DATED: 09/08/2021
Level to teach various subjects. Accordingly,
Rule 20(3) of the Rules of 1974 was modified by
adding the minimum qualification for the
candidates to be appointed as Shikshan Sahayaks
at Secondary Level and one of the qualifications
prescribed at Annexure-III and for the purpose of
subject of Science and Technology, the
qualification for a candidate prescribed at
Annexure-III is that at B.Ed. level such a
candidate is required to have undergone the
education of method of teaching Mathematics and
Science and Technology.
7.1 Admittedly, the petitioner has not studied
B.Ed. with the subjects, i.e. Mathematics,
Science and Technology and instead, the
petitioner has studied B.Ed. with the teaching of
Science and Biology. Therefore, the petitioner
never had the training to teach Mathematics to
the students of Standards- 9 and 10.
7.2 It is also pertinent to note that by the
impugned G.R. dated 11.01.2021, the Expert Level
Committee has suggested the changes in the
subjects, prescribing minimum qualifications for
the candidates to be appointed as teachers and
once, the Expert Level Committee has suggested
such changes and accordingly the G.R. dated
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11.01.2021 provides for minimum qualification for
a candidate to teach Mathematics and Science and
to have a degree in B.Ed. with the subjects of
Mathematics, Science and Technology.
7.3 This Court, in the case of 'RAVIKANT
PRABHUNATH SHARMA VS. STATE OF GUJARAT', rendered
on 03.05.2016 in Special Civil Application No.
9773 of 2015 and the allied matters, while
considering the similar issue based on the
opinion rendered by the High Powered Expert
Committee, has held as under:
"52 It is now well settled that
fixation of qualifications of the
Adhyapak Sahayaks in the grantin-
aid colleges will definitely have
relation to standards of education
in the institutions for higher
education.
53 The issue in hand relates to
the competence of the State
Government to prescribe
eligibility criteria for the
purpose of appointment / selection on
the posts of the Adhyapak Sahayaks. In
other words, whether the State
Government was entitled to lay
down an eligibility criteria that the
candidate must possess degrees at the UG
level and PG level in the same subject.
C/SCA/11247/2021 ORDER DATED: 09/08/2021
54 Let me look into the fews decisions of
the Supreme Court in this regard.
55 Of Course, all the decisions, which I
propose to look into, are relating to
prescribing conditions or
eligibility for the purpose of
admission in colleges run by the
Government. However, the ratio will
definitely apply to the case in hand.
56 In the case of (Shri Ram Krishna
Dalmia v. S.R. Tendolkar), 1959 S.C.R. 279
: A.I.R. 1958 S.C. 538 the Supreme Court
has observed as under:
"Article 14 forbids class
legislation; it does not forbid
reasonable classification. In other words
to pass the test of permissible
classification two conditions must be
fulfilled, (i) that the classification is
founded on intelligible differentia
which distinguishes persons or
things that are grouped together from
others left out of the group and, (ii)
that differentia must have a rational
relation to the object sought to be
achieved. The first group of persons for
whom seats have been reserved are the sons
and daughters of residents of Union
territories other than Delhi. These areas
are well known to be comparatively
backward and with the exception of
Himachal Pradesh they do not have any
Medical College of their own. It was
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necessary that persons desirous of
receiving medical education from these
areas should be provided some facility for
doing so. As regards the sons and
daughters of Central Government
servants posted in Indian Missions
abroad it is equally well known that due
to exigencies of their service these
persons are faced with lot of difficulties
in the matter of education. Apart from the
problems of language, it is not easy or
always possible to get admission into
institutions imparting medical education
in foreign countries. The Cultural,
Colombo Plan and Thailand scholars are
given admission in medical
institutions in this country by
reason of reciprocal arrangements of
educational and cultural nature.
Regarding Jammu & Kashmir scholars it must
be remembered that the problems relating
to them are of a peculiar nature and there
do not exist adequate arrangements for
medical education in the State itself for
its residents. The classification in all
these cases is based on intelligible
differentia which distinguishes them from
the group to which the appellants belong."
57 In the case of (Kumari Chitra Ghosh
and another v. Union of India and
others)6, A.I.R. 1970 S.C. 35 the Supreme
Court has noticed the aforesaid case and
has observed, as under;
"9. It is the Central Government
which bears the financial burden of
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running the medical college. It
is for it to lay down the
criteria for eligibility. From the very
nature of things it is not possible to
throw the admission open to students from
all over the country. The Government
cannot be denied the right to decide from
what sources the admission will be made.
That essentially is a question of policy
and depends inter alia on an overall
assessment and survey of the
requirements of residents of
particular territories and other
categories of persons for whom
it is essential to provide facilities
for medical education. If the sources
are properly classified whether on
territorial geographical or other
reasonable basis it is not for the Courts
to interfere with the manner and method of
making the classification."
"10. The next question that has to be
determined is whether the differentia on
which classification has been made has
rational relation with the object to be
achieved. The main purpose of admission to
a medical college is to impart education
in the theory and practice of medicine. As
noticed before the sources from
which students have to be drawn
are primarily determined by the
authorities who maintain and run the
institution, e.g., the Central Government
in the present case. In (P. Rajendran v.
State of Madras)7, A.I.R. 1968 S.C. 1012
it has been stated that the object of
C/SCA/11247/2021 ORDER DATED: 09/08/2021
selection for admission is to secure the
best possible material. This can surely be
achieved by making proper rules in the
matter of selection but there can be no
doubt that such selection has to be
confined to the sources that are intended
to supply the material. If the sources
have been classified in the manner done in
the present case it is difficult to see
how that classification has no rational
nexus with the object of imparting medical
education and also of selection for the
purpose."
58 In the case of (D.N. Chanchala etc. v.
The State of Mysore and others etc.)8,
A.I.R. 1971 S.C. 1762, the Supreme Court
has observed, as under:
"14. In view of this consequence, Counsel
for the petitioner made three submissions;
(1) that once the petitioner was eligible
for admission to a medical college
affiliated to the Karnataka University
according to the Ordinances of that
university, the State Government could not
make rules, the effect of which
was to deprive her of admission;
(2) that the universitywise
distribution of seats provided
under Rule 9(1) was discriminatory
and being without any rational basis
violated Article 14 of the Constitution ;
and (3) that the reservation of seats
under Rules. 4 and 5 for the various
categories of persons set out
therein was far more excessive than
permitted by the decisions of this Court
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and was in violation of Article 15(4).
Consequently, Rules 4 and 5
laying down such reservation should be
held invalid."
"15. We propose to deal with these
submissions in the order in which they
were placed before us by Counsel. As seen
earlier, there are two sets of provisions
dealing with the teaching of medical
courses. The first consists of Ordinances
of the Universities, and the second
consists of the rules framed by the
Government for selection of candidates for
admission to the PreProfessional/B.Sc.
Part I leading to M.B.B.S. degree. The
Ordinances framed by the three
universities are made under the different
Universities Act setting up those
universities and under the powers reserved
to them under them. These Ordinances are
made for the purposes set out in those
Acts and for carrying out those purposes.
One of such purposes would be the
maintenance of certain academic standards
in the various faculties taught in the
colleges affiliated to the universities.
For the purposes of maintaining such
standards the universities lay down
certain minimum qualifications for
eligibility for entrance in those
faculties. These Ordinances and
regulations made under the Acts lay down
the minimum qualifications required for
eligibility and are not to be confused
with rules for admission. A candidate may
have the minimum qualification so as to
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make him eligible for entrance in a
particular faculty. That does not mean
that his being eligible necessarily makes
him entitled to admission in that faculty.
For, admission can only be commensurate
with the number of available seats in such
a faculty."
"16. The medical colleges in question are
not university colleges but have been set
up and are being maintained by the State
Government from out of public funds. Since
they are affiliated to one or the other of
the three universities, the Government
cannot frame rules or act inconsistently
with the Ordinances or the
regulations of the universities
laying down standards of eligibility. It
is nobody's case that the Government has
made rules which are in any way
inconsistent with the rules for
eligibility laid down in such Ordinances
and regulations."
"17. Since the Government has set up these
colleges and maintains them, it has prima
facie the power to regulate admission in
its own institutions. Counsel for the
petitioner pointed out to us no
provision from the University Acts
which deprives the Government of the power
of making rules for admission in its own
colleges. That being so, it cannot be said
that the Government has no power
to regulate admission in its own
colleges or that because a student
is eligible for admission under the
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University Ordinances, he automatically
gets a right to admission which he can
enforce in a Court of law."
"22. ... ... ... Further, the Government
which bears the financial burden of
running the Government colleges is
entitled to lay down criteria
for admission in its own colleges
and to decide the sources from
which admission would be made, provided of
course, such classification is not
arbitrary and has a rational basis and a
reasonable connection with the object of
the rules. So long as there is no
discrimination within each of such
sources, the validity of the rules laying
down such sources cannot be successfully
challenged. See Chitra Ghosh v.
Union of India, (1970)1 S.C.R. 413
at p. 418 : A.I.R. 1970 S.C. 35. In our
view, the rules lay down a valid
classification. Candidates passing
through the qualifying examination
held by a university form a
class by themselves as distinguished
from those passing through such
examination from the other two
universities. Such a classification has a
reasonable nexus with the object of the
rules, namely, to cater to the needs of
candidates who would naturally look to
their own university to advance
their training in technical studies,
such as medical studies. In our opinion,
the rules cannot justly be attacked on the
ground of hostile discrimination or as
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being otherwise in breach of Article 14."
"23. The last challenge to the validity of
these rules was based on the allegation
that they lay down excessive reservation
for certain categories of candidates. As
already stated, under Clauses (a) to (i)
of Rule 4, sixty, out of the present
aggregate of 765 seats at the disposal of
the Government, are set apart for the
various categories of persons therein
mentioned. As aforesaid, the Government
is entitled to lay down sources from
which selection for admission would be
made. A provision laying down such
sources is strictly speaking not a
reservation. It is not a reservation as
understood by Article 15 against which
objection can be taken on the ground that
it is excessive. The reservation, as
contemplated by Article 15, is the one
which is made under Rule 5. ... ... ..."
59 In the case of (State of Andhra
Pradesh and another v. Lavu Narendra Nath
and others etc.)9, A.I.R. 1971 S.C. 2560
the Supreme Court has observed, as under:
"7. We have therefore to examine whether
the Government had a right to prescribe a
test for making a selection of a number of
candidates from out of the large body of
applicants for admission into the first
year M.B.B.S. course and whether
such action of the Government
contravened any provision already made
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by the legislature in that respect. Under
Article 162 of the Constitution the
executive power of a State extends to the
matters with respect to which the
legislature of a State has power to make
laws but this is subject to
the provisions of the
Constitution. As the Government runs
these colleges, it undoubtedly has a right
and a duty to make a selection from the
number of applicants applying for
admission if all could not be admitted. If
there was no legislation covering this
field Government would undoubtedly be
competent to prescribe a test itself to
screen the best candidates. We have next
to scrutinises the provisions of the
Andhra University Act relied on by the
High Court to see whether the action of
the Government ran counter to any of those
provisions. Under section 23 of the Act it
was a body known as the Academic Council
of the University which had the power by
regulations of prescribing all courses of
study and of determining curricula and the
general control of teaching within the
university and was responsible for
the maintenance of the standards
thereof. Under subsection (2)(h)
of the Act these powers include
the power to make regulations regarding
the admission of students to the
university or prescribing
examinations to be recognised as
equivalent to university
examinations or the further
qualifications mentioned in subsection (1)
of section 33 for admission to the degree
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courses of the university. Under section
33 no student was to be eligible for
admission to a course of study
qualifying for admission to a
post matriculation university
examination unless he had passed
the examination prescribed as qualifying
for admission to such course or an
examination recognised by the
Academic Council with the previous
sanction of the State Government as
equivalent thereto and possessed such
further qualifications, if any, as might
be prescribed. Sri Venkateswara
University, the only other
University functioning in this
area, was constituted under a similar
statute and had almost identical
provisions as those mentioned above."
"8. The above provisions of law do
not make it incumbent upon the
Government to make their selection
in accordance with the marks
obtained by the applicantcandidates
at the qualifying examination.
Obtaining 50% of the marks at the
qualifying examinations was the first
hurdle to be crossed by any
candidate before he could submit
an application for admission into a
medical college. The Government which ran
the colleges had the right to make a
selection out of a large number of
candidates and for this purpose they could
prescribe a test of their own which was
not against any law. Merely because they
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tried to supplement the eligibility rule
by a written test in subjects with which
the candidates were already familiar,
their action cannot be impeached nor was
there anything unfair in the test
prescribed. The test prescribed by
the Government must be considered in the
light of a second hurdle for the purpose
of a screening to find out who of all the
candidates applying should be admitted
and who should be rejected.
Merely because the university had made
regulations regarding the admission of
students to its degree courses, it did not
mean that anyone who had passed the
qualifying examination such as the P.U.C.
or H.S.C. was ipso facto to be entitled to
admission to such courses of study. If the
number of candidates applying for such
admission far exceeds the number of seats
available the university can have to make
its choice out of the applicants to find
out who should be admitted and if instead
of judging the candidates by the number of
marks obtained by them in the qualifying
examination the university thinks fit to
prescribe another test for admission no
objection can be taken thereto. What the
university can do in the matter of
admissions to the degree courses can
certainly be done by the
Government in the matter of
admission to the M.B.B.S. course."
"9. In our view the test prescribed by the
Government in no way militates against the
power of Parliament under Entry 66 of List
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I of the Seventh Schedule to the
Constitution. The said entry provides:
" Coordination and determination of
standards in institutions for higher
education or research and scientific and
technical institutions."
"The above entry gives Parliament power to
make laws for laying down how standards in
an institution for higher education are to
be determined and how they can be co-
ordinated. It has no relation to a test
prescribed by a Government or by a
university for selection of a number of
students from out of a large number
applying for admission to a particular
course of study even if it be for higher
education in any particular subject."
"15. In our view there is no substance in
any of the contentions as will be apparent
from our conclusions noted above and the
decisions of this Court bearing on this
point. The University Act, as pointed out,
merely prescribed a minimum qualification
for entry into the higher courses of
study. There was no regulation to the
effect that admission to higher course of
study was guaranteed by the securing of
eligibility. The Executive have a power to
make any regulation which would have the
effect of a law so long as it does not
contravene any legislation already
covering the field and the Government
order in this case in no way affected the
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rights of candidates with regard to
eligibility for admission; the test
prescribed was a further hurdle by way of
competition when mere eligibility could
not be made the determining factor."
60 In the case of (Dr. Ambesh Kumar v.
Principal, L.L.R.M. Medical College Meerut
and others)10, 1986 Supp. S.C.C. 543, it
has been observed, as under :
"12. In accordance with the said
Government Order dated December 15, 1982,
a candidate in order to be eligible for
consideration for admission to the Post-
graduate course on merit must have secured
55 per cent marks for admission to Post-
graduate degree course and 52 per cent
marks for admission to the Postgraduate
diploma course. Thus a candidate having
not secured the requisite marks in
M.B.B.S. examination will be ineligible
for consideration on the basis of merit
for admission to the various Postgraduate
course in medical college. The
unsuccessful candidates who are not
eligible for consideration according to
this Government order have questioned the
power of the State Government in making
the aforesaid order on the ground
that the Medical Council by its
regulations has already laid down the
requisite criteria or standards for
admission to the Postgraduate courses
in the Medical Colleges in
accordance with the merits of the
candidates concerned and as such the State
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Government is not competent to lay
down further eligibility
qualification for the candidates for
being considered for admission in the
Postgraduate courses both in the degree
and diploma courses. It has also been
contended that the State Government is not
competent to lay down or prescribe the
said qualification which, it is alleged,
encroaches upon the power of the Central
Government as provided in Entry 66 of List
I of the Seventh Schedule. It has also
been pleaded in the petition that Entry 25
of List III of Seventh
Schedule to the Constitution is subject to
the provisions of Entry 66 of List I and
as such the said Government
order being repugnant to the
Regulations made by the Indian Medical
Council and approved by the Central
Government pursuant to section 33 of the
Indian Medical Council Act, is invalid."
"18. The said order modifies to a certain
extent the earlier notification issued on
October 15, 1982 inviting applications for
admission to the Postgraduate courses
as per notification dated December
3, 1980. In the notification dated
December 3, 1980, the criteria for
admission to the Postgraduate courses was
on the basis of merit only. In para 2 of
the said orders the manner how the merit
is to be determined has been laid down. In
that order there was no such criteria laid
down as mentioned in the Government Order
dated December 15, 1982. Two questions
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arise for our consideration which are
firstly whether the State Government is
competent to make the aforesaid order in
question in exercise of its executive
powers under Article 162 of the
Constitution. This Article specifically
provides that the executive powers of the
State shall extend to matters with respect
to which the legislature of the State has
power to make laws. Entry 25 of the
Concurrent List i.e List III of the
Seventh Schedule to the Constitution
provides as follows :"
"19. The State Government can in exercise
of its executive power make an order
relating to matters referred to in Entry
25 of the Concurrent List in
the absence of any law made by the State
legislature. The impugned order made by
the State Government pursuant to its
executive powers laying down the
eligibility qualification for the
candidates to be considered on merits for
admission to the Postgraduate courses in
Medical Colleges in the State, is valid
and it cannot be assailed on the ground
that it is beyond the competence of the
State Government to make such order
provided it does not encroach upon or
infringe the power of the Central
Government as well as the Parliament
provided in Entry 66 of List I. Entry 66
of List I is in the following terms :"
"Coordination and determination of
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standards in institutions for higher
education or research and scientific and
technical institutions."
"21. The impugned Government Order
dated December 15, 1982 lays down
the criteria or eligibility qualification
i.e. obtaining of 55 per cent marks by
candidates seeking admission in the Post-
graduate degree course and obtaining of 52
per cent marks by candidates seeking
admission to Postgraduate diploma course
for being considered for selection. Entry
25 confers on the State Government as well
as the State legislature the powers to
make orders in respect of matters
mentioned in Entry 25 of List III of the
Seventh Schedule to the
Constitution i.e. with regard to
medical education the only limitation
being that such order of the State
legislature will be subject to the
provisions of Entry 66 List I i.e. Co-
ordination and determination of standards
in institutions for higher education or
research and scientific and technical
institutions. The order in question
merely specifies a further eligibility
qualification for being considered for
selection for admission to the Post-
graduate courses (degree and diploma ) in
the Medical Colleges in the State in
accordance with the criteria laid down by
Indian Medical Council. This does not
in any way encroach upon the regulations
that have been framed under the provisions
of section 33 of the Indian Medical
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Council Act. On the other hand in order to
promote and further the determination
of standards in institutions for
higher education, the State
Government who runs these colleges
provide an additional eligibility
qualification. ... ... ..."
"22. In the instant case the number of
seats for admission to various
Postgraduate courses both degree and
diploma in Medical Colleges is limited
and a large number of candidates
undoubtedly apply for admission to these
course of study. In such circumstances the
impugned order laying down the
qualification for a candidate to be
eligible for being considered for
selection for admission to the said
courses on the basis of the merit as
specified by regulations made
under the Indian Medical Council
Act, cannot be said to be in conflict with
the said regulations or in any way
repugnant to the said regulations. It does
not in any way encroach upon the standards
prescribed by the said regulations. On the
other hand by laying down a further
qualification of eligibility it promotes
and furthers the standard in an
institution."
"23. The Government who runs these
colleges has the right to prescribe a test
of eligibility as has been held by this
Court in the case referred to above."
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"26. On a consideration of the aforesaid
decisions we are unable to hold that the
impugned order dated December 15,
1982 has in any way contravened or
encroached upon the power of the Central
legislature to make laws or the Central
Government to make orders in regard to
matters provided in Entry 66 of List I of
Seventh Schedule to the Constitution.
There is no conflict between the
regulations and also the order in
question. The State Government by laying
down the eligibility qualifications namely
the obtaining of certain minimum marks in
the M.B.B.S. examination by the candidates
has not in any way encroached upon the
Regulations made under the Indian Medical
Council Act nor does it infringe the
Central power provided in the Entry 66 of
List I of the Seventh Schedule to the
Constitution. The order merely
provides an additional eligibility
qualification. We are in full agreement
with the reasoning and conclusion of the
High Court in this respect. This
contention, therefore, in our
considered opinion, is without any merit."
61 In the case of (Ajay Kumar Singh and
others v. State of Bihar and others)11,
1994(4) S.C.C. 401, the Supreme Court has
observed, as under :
"18. A review of the provisions of the Act
clearly shows that among other things, the
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Act is concerned with the determination
and coordination of standards of education
and training in medical institutions.
Sections 16, 17, 18 and 19 all speak of
"the courses of study and examinations to
be undergone" to obtain the recognised
medical qualification. They do not speak
of admission to such courses, section 19A
expressly empowers the Council to
"prescribe the minimum standards
of medical education" required for
granting undergraduate medical
qualification. So does section 20 empower
the Council to prescribe standards of
postgraduate medical education but "for
the guidance of universities" only. It
further says that the Council "may also
advise universities in the matter of
securing uniform standards for
postgraduate medical education
throughout India". (The distinction
between the language of section 19A and
section 20 is also a relevant factor, as
would be explained later.) Clause (j)
of section 33 particularises the subjects
with respect to which Regulations can be
made by the Council. It speaks of
the courses and period of study
and the practical training to be
undergone by the students, the
subjects of examination which they must
pass and the standards of proficiency they
must attain to obtain the recognised
medical qualifications but it does not
speak of admission to such courses of
study. Indeed, none of the sections
aforementioned empower the Council
to regulate or prescribe
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qualifications or conditions for admission
to such courses of study. No other
provision in the Act does. It is thus
clear that the Act does not purport to
deal with, regulate or provide for
admission to graduate or postgraduate
medical courses. Indeed, insofar as
Postgraduate courses are concerned, the
power of the Indian Medical
Council to "prescribe the minimum
standards of medical education" is only
advisory in nature and not a binding
character. In such a situation, it would
be rather curious to say that the
regulations made under the Act are binding
upon them. The Regulations made under
the Act cannot also provide for
or regulate admission to Postgraduate
courses in any event."
"19. The Regulations made by the Medical
Council in 1971 (revised up to January
1978 (sic 1988) speak generally of
students for postgraduate training being
selected "strictly on merit judged on the
basis of academic record in the
undergraduate course".
This is more in the nature of advice and
not a binding direction. The
regulation does not say that no
reservations can be provided under Article
15(4). The power conferred upon the State
by Clause (4) of Article 15 is a
constitutional power. The said power
obviously could not have been overridden
or superseded by a Regulation made by
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the Indian Medical Council under
the Act. The Regulation must be read
consistent with Article 15(4) and if so
read, it means that the students shall be
admitted to postgraduate training strictly
on the basis of merit in each of the
relevant classes or categories, as the
case may be. Any other construction
seeking to give an absolute meaning to the
said Regulation would render it invalid
both on the ground of travelling beyond
the Act. It may also fall foul of Article
15(4)......."
"24. In our opinion, the situation in the
case before us is no different. The State
will regulate the admission policy and at
the same time adhere to the standards
determined by the Indian Medical Council."
"26. Even if one relates the Indian
Medical Council Act to Entry 25 of List
III in addition to Entry 66 of List I,
even then the position is no different for
the Indian Medical Act does not purport to
regulate the admissions or admission
policy to postgraduate medical courses.
The field is thus left free to be
regulated by the State. The State can make
a law or an executive rule; in this case
it has chosen to make an executive rule."
62 In the case of (State of M.P. v.
Nivedita Jain) 12, 1981(4) S.C.C. 296,
while dealing with the regulation framed
by the Indian Medical Council, relaxing
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the minimum qualifying marks for Scheduled
Castes and Scheduled Tribes candidates for
admission, the Supreme Court has proceeded
to observe, as under :
"Entry 66 in List I (Union List) of the
7th Schedule to the Constitution relates
to 'coordination and determination of
standard in institutions for higher
education or research and scientific and
technical institutions'. This entry by
itself does not have any bearing on the
question of selection of candidates to
the Medical Colleges from amongst
candidates who are eligible for
such admission. On the other
hand, Entry 25 in List III
(Concurrent List) of the same Schedule
speaks of 'education, including technical
education, medical education in
universities, subject to Entries 63, 64,
65 and 66 of List I .... vocational and
technical training of labour'. This entry
is wide enough to include within its ambit
the question of selection of candidates to
medical colleges and there is nothing in
the Entries 63, 64 and 65 of
List I to suggest to the
contrary. We are, therefore, of the
opinion that Regulation II of the Council
which is merely directory and in the
nature of a recommendation has no such
statutory force as to render the
order in question which
contravenes the said regulation
illegal, invalid and unconstitutional."
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63 From the aforesaid decision, it is
clear that the State has ample power and
authority to prescribe conditions for
admission to the Under Graduate and Post
Graduate medical course. In the same
manner, the State has ample power
and authority to prescribe
eligibility for the purpose of
appointments on the posts of the Adhyapak
Sahayaks. The same, in no way, impeaches
upon the power of the Central Government
conferred under Entry 66 in list I (Union
List) of the 7th Schedule of the
Constitution. The said entry deals merely
with the coordination and determination
of standards institutions for higher
education or research and scientific and
technical institution. The same does not
deal with laying down conditions for
appointment of candidates on the posts of
the Adhyapak Sahayaks. This, the State
Government, can legitimately provide for,
in exercise of power conferred by Article
162. The same would be within its
competence under Entry 25 in List III
(concurrent List) of the 7th
Schedule. The Regulations framed
by the University Grants Commission
provide for laying down of standards of
education. They do not provide for
conditions for appointments on the posts,
like Professor, Lecturer, Adhyapak
Sahayak, etc. The Government owes a duty
to see that the quality of higher
education is maintained. It has,
therefore, every authority to
prescribe conditions of eligibility
for appointments on the posts in question.
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64 The object behind insisting that the
subject should be same at the Under
Graduate and Post Graduate level has some
nexus with the object sought to be
achieved. It has a rational nexus to the
object sought to be achieved, and hence,
there is no violation of the principles of
equality enunciated under Article 14 of
the Constitution. At the cost of
repetition, once the experts in the field
say so, then the Court should be loath in
disturbing such opinion unless the
Court finds the opinion to be
absolutely perverse or unreasonable.
65 At the cost of repetition, I state that
the standards of education as prescribed
by the University Grants
Commission has not been compromised
in any manner. It is not the
case in hand wherein a legislation
made by the State Government on the
qualifications of the Adhyapak Sahayaks is
in conflict with the prescription
regarding such qualifications prescribed
by the University Grants Commission, and
if there is any conflict, then definitely
the regulations of the University Grants
Commission would prevail. The Article 25
of the Concurrent List and the Entry 66 of
the Union List has nothing to do so far as
the case in hand is concerned.
66 In the case in hand, there is nothing
on record to show any mala
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fide which could be attributed
against the members of the
experts committee or the office of the
higher education. In this view of the
matter and in the absence of any mala fide
and in view of the discussion made
hereinabove, the recommendations
made by the experts committee and
acted upon by the State Government cannot
be said to be illegal, invalid and without
jurisdiction.
67 In Ganapath Singh Gangaram Singh
Rajput v. Gulbarga
University [2014 (3) SCC 767], the Supreme
Court observed in para 17 as under:
"17.....when the view taken by the expert
body is one of the possible views, the
same is fit to be accepted. Further, the
yardstick would be different when it
concerns eligibility conditions
pertaining to 'qualification' and
'experience'. In case of experience it is
best known to the expert body in the field
in regard to the actual work done and,
therefore, its opinion is of higher degree
deserving acceptance ordinarily. Hence, in
our opinion, this judgment did not fetter
the power of the High Court."
68 In Tariq Islam vs. Aligarh Muslim
University and Ors. (2001) 8 SCC 546,
following its earlier decision in the
Constitution Bench of the Supreme Court in
University of Mysore vs. C.D. Govinda Rao,
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AIR 1965 SC 491, the Supreme Court
observed that "normally it is wise and
safe for the Courts to leave the decision
of academic matters to experts who are
more familiar with the problems they face
than the courts generally are".
69 A similar view has been expressed
in several decisions of the Supreme
Court e.g. Dr. Uma Kant vs. Dr. Bhika Lal
Jain JT 1991 (4) SC 75 (para 9), Bhushan
Uttam Khare vs. The Dean, B.J. Medical
College and Ors. JT 1992 (1) SC 583 (para
8), Rajender Prasad Mathur vs. Karnataka
University and Anr. AIR 1986 SC 1448 (para
7) : 1986 Supp SCC 740 (para 7); P.M.
Bhargava and Ors. vs. U.G.C. and Anr.,
2004 (6) SCC 661 (para 13); Chairman,
J.andK. State Board of Education vs. Feyaz
Ahmed Malik and Ors (2000) 3 SCC 59;
Varanaseya Sanskrit Vishwavidyalaya and
Anr. Vs. Dr. Raj kishore Tripathi and
Anr. (1977) 1 SCC 279 (para 12); Medical
Council of India vs. Sarang and Ors.
(2001) 8 SCC 427 (para 6); Bhagwan Singh
and Anr. vs. State of Punjab and Ors.
(1999) 9 SCC 573 (para 6).
70 On a clarification sought from the
University Grants Commission as regards
the meaning of the term " relevant
subject", it was clarified that the
relevance of subject or inter-
disciplinary nature of subject
should be decided by the appointing
authority with the help of subject experts
as the University Grants Commission had
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not prescribed any norms on the subject
matter. Thus, this is the view of the
matter of the University Grants
Commission, which is an expert in academic
matters and the Court should not set in
appeal over its opinion and take a
contrary view.
71 In Rajput Dalal v. Chaudhary Dala
University [2008 (9) SCC 284], the Supreme
Court observed thus in paras 30 to 33:
"30. Learned counsel for the appellant has
also pointed out that a large number of
universities in this country have a single
department for both the subjects of
Political Science and Public
Administration, and this also demonstrates
that the subjects Political Science and
Public Administration are inter-
changeable and interrelated.
Political Science is the mother
subject and Public Administration is the
offshoot of the same.
31. We agree with Mr. Patwalia,
learned counsel, that it is not
appropriate for this Court to sit in
appeal over the opinion of the experts who
are of the view that Political Science and
Public Administration are interrelated and
interchangeable subjects, and hence a
candidate who possesses Master's degree in
Public Administration is eligible for the
post of Lecturer in Political Science
and viceversa. We are told that
a large number of persons having
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qualifications in the inter-
changeable/interrelated subjects have been
appointed Readers/Professors/Lecturers and
are continuing as such in various colleges
and Universities in the State.
32. In para 5 of the counteraffidavit
filed by the respondentUniversity before
the High Court, it has been specifically
stated therein that Public Administration
is one of the branches of
Political Science, and the appellant
was selected by a Selection Committee
consisting of eminentexperts after
evaluating his qualifications and work.
33. As regards the decision in Dr. Bhanu
Prasad Panda vs. Chancellor, Sambalpur
University (supra), we have carefully
perused the same. In paragraph 5 of the
said judgment it has been observed :
"Though the Department concerned for which
the appointment is to be made is that of
'Political Science and Public
Administration', the appointment with
which we are concerned, is of
Lecturer in Political Science and not
Public Administration and subject-
matterwise they are different and not one
and the same. It is not in controversy
that the posts of Lecturers in Public
Administration and in Political Science
are distinct and separate and on selection
the appellant could not have been
appointed as Lecturer in Public
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Administration."
72 Let me now deal with the last
submission that in the absence of any
Government Resolution or order in exercise
of power under Article 162 of the
Constitution, no such decision could have
been taken. In my view, as such Article
162 of the Constitution has no application
at all. Article 309 of the Constitution of
India is a rule making power. That power
must be exercised by the Governor, on
advice of the cabinet or rule made for
that exercise of power. On the other hand,
Article 162 does not provide for
making any rules. It provides
for issuing administrative
instructions which are normally
done in the form of Government
Resolutions. Secondly, the exercise
of the executive instructions has to
be done in the manner contemplated under
Article 166 of the Constitution. That
Article provides that all the
executive action of the Government of a
State shall be expressed to be taken in
the name of the Governor. Article 166(2),
then sets out that the Orders and other
instruments made and executed in the name
of the Governor shall be authenticated in
such manner as may be specified by Rules
to be made by the Governor, and the
validity of an order or instrument which
is so authenticated shall not be called in
question on the ground that it is not an
order or instrument made or executed by
the Governor. Subrule (3) sets out that
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the Governor shall make Rules for the more
convenient transaction of the business of
the Government of the State, and for the
allocation among Ministers of the
said business insofar as it is
not business with respect to which
the Governor is by or under
this Constitution required to act in his
discretion. In other words, a conjoint
reading of Articles 162 and 166 would show
that the Executive power of the State must
be exercised in the manner laid down under
the business rules. In the absence of
power being of the administrative power of
the State to have binding effect as Law.
It is true that merely because some
officers issue some instructions, by
itself cannot be said to be pursuant to an
exercise of executive powers of the State
as understood under article 162. Any other
exercise would be an exercise of
administrative powers which an officer may
exercise considering the post held and the
duties which such officer has to exercise.
That cannot be equated with the exercise
of executive power which is
extensive with the legislative powers
under Article 162."
8. In view of the aforesaid dictum of law, it
cannot be said that the impugned G.R. dated
11.01.2021 is violative of Articles 14 and 16 of
the Constitution of India, as the G.R. dated
11.01.2021 is a government policy, prescribing
minimum qualification and standards for the
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benefit of the students of Standards-9 and 10,
who are to pursue their carrier either in
engineering or other 'B' Group Stream from
Standard-11 onward are required to have very good
foundation of Mathematics and Science and if, a
candidate is not trained how to teach
Mathematics, then, such a candidate cannot be
given the responsibility of to teaching
Mathematics and Science to the students of
Standards-9 and 10. Therefore, in such
circumstances, when the impugned G.R. is passed
on the basis of the opinion rendered by the High
Powered Committee of the Experts, the same
cannot be interfered with while exercising
extraordinary jurisdiction under Article 226 of
the Constitution of India.
8. This petition, therefore, being devoid of
merits is accordingly, DISMISSED. No order as to
costs.
(BHARGAV D. KARIA, J)
UMESH/-
