Madras High Court
V.Lekha vs The Chairman on 19 August, 2021
WP.Nos.19534/2018 etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.08.2021
CORAM:
THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR. JUSTICE V.PARTHIBAN
WP.Nos.19534/2018, 627/2015, 25691/2014, 20198/2018, 20390/2018,
20391/2018, 20389/2018, 18328/2019, 18347/2019, 18348/2019,
18335/2019, 18341/2019, 18342/2019, 5172/2020, 17929/2019,
24392/2019 & 25218/2019
and
Rev.Appln.No.195/2019 in W.A.No.533 of 2018
WP.No.19534/2018:-
V.Lekha .. Petitioner
Versus
1.The Chairman
University Grants Commission,
Bahadur Shah Zafar Marg
New Delhi 110 002.
2.The Secretary
Law Department
Fort St George,
Chennai 600 009.
3.The Chairman
Teachers Recruitment Board
EVK Sampath Buildings
College Road, Chennai 600 006.
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WP.Nos.19534/2018 etc., batch
4.The Director,
Director of Legal Studies
Purasawalkkam High Road
Kilpauk, Chennai 600 010.
5.The Registrar
The Tamil Nadu Dr.Ambedkar
Law University, No.5,
Greenways Road, Chennai 600 028.
6.The Registrar
The Tamil Nadu National law School
Dindigul Main Road,
Navalurkuttappattu
Tiruchirappalli 620 027.
7.The Secretary
Bar Council of India
No.21, Rouse Avenue
Institutional Area
New Delhi 110 002.
8.The Secretary
Bar Council of Tamil Nadu
and Puducherry, Madras High
Court Campus, Chennai 600 104.
9.R.Ghunasekaran
10.D.Bennet Paul Giftson
11.M.Muruganandam
12.M.A.Saleem Ahmed
13.S.Puviyarasan
14.P.Rajeswaran
15.The Bar Council of Tamil Nadu
and Puducherry rep.by its Secretary
Madras High Court campus,
Chennai 600 104.
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WP.Nos.19534/2018 etc., batch
16.The Bar Council of India
rep.by its Secretary, No.21, Rouse
Avenue, Institutional Area
New Delhi 110 002. .. Respondents
**RR 9 to 16 impleaded as per order dated 27.01.2020
made in WP.Nos.19534/2018, 25691/2014, 627/2015
Prayer:- Writ petition filed under Article 226 of the Constitution of
India praying for issuance of certiorarified mandamus, calling for the
records relating to the impugned Notification No.2/2018 dated
18.07.2018 in Clause [4] Qualifications:Assistant Professor [Pre Law]
sub clause [ii] and [iv] issued by the 3rd respondent and quash the same
insofar as the petitioner is concerned and consequently direct the 3rd
respondent to issue revised notification in respect of educational
qualification for the post of Assistant Professor [Pre Law] and to permit
the petitioner to participate in the selection process of direct recruitment
of Assistant Professors / Assistant Professors [Pre Law] in Government
Law Colleges 2017-2018 the details of vacancies as per the
G.O.Ms.No.464, Law [LS] Department dated 17.07.2017 by the 2 nd
respondent.
For Petitioner : Mr.G.Murugendran
For R1 : Mr.P.R.Gopinath
For RR 2 to 4 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
For R5 : Mr.M.Nallathambi
For R7 : Mr.S.R.Raghunathan
For R8 : Mr.S.Prabhakaran, Senior counsel for
Mr.Fakkir Mohideen
WP.No.627/2015:-
V.Lekha .. Petitioner
Versus
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WP.Nos.19534/2018 etc., batch
1.The Secretary
Government of India,
Ministry of Human Resources Development
Shastri Bhawan, New Delhi 110 001.
2.The Chairman
University Grants Commission,
Bahadur Shah Zafar Marg,
New Delhi 110 002.
3.The Secretary
Law Department
Fort St George,
Chennai 600 009.
4.The Secretary,
Higher Education Department
Fort St George, Chennai 600 009.
5.The Chairman
Teachers Recruitment Board
EVK Sampath Buildings
College Road, Chennai 600 006.
6.The Director,
Director of Legal Studies
Purasawalkkam High Road
Kilpauk, Chennai 600 010.
7.The Registrar
The Tamil Nadu Dr.Ambedkar
Law University, No.5,
Greenways Road, Chennai 600 028.
8.N.Nishadevi
9.R.Ghunasekaran
10.D.Bennet Paul Giftson
11.M.Muruganandam
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12.M.A.Saleem Ahmed
13.S.Puviyarasan
14.P.Rajeswaran
15.The Bar Council of Tamil Nadu
and Puducherry rep.by its Secretary
Madras High Court campus, Chennai 600 104.
16.The Bar Council of India
rep.by its Secretary, No.21, Rouse
Avenue, Institutional Area
New Delhi 110 002. .. Respondents
**RR 9 to 16 impleaded as per order dated 27.01.2020
made in WP.Nos.19534/2018, 25691/2014, 627/2015
Prayer:- Writ petition filed under Article 226 of the Constitution of
India praying for issuance of certiorarified mandamus calling for the
records relating to the impugned order G.O.Ms.No.264, Law [LS]
Department dated 20.12.2005 passed by the 3rd respondent and quash
the same insofar as the petitioner is concerned and consequently, direct
the 5th respondent to issue revised Notification and Prospectus in respect
of educational qualification for the post of Lecturers Senior scale pre-law
and to permit the petitioner to participate in the selection process of
Assistant Professor post by the 5th respondent.
For Petitioner : Mr.G.Murugendran
For R1 : Mr.N.Ramesh
For R2 : Mr.P.R.Gopinath
For RR 4 to 6 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
For R7 : Mr.M.Nallathambi
For R8 : Mr.K.Rajasekaran
For R14 : Mr.G.Sankaran
For R15 : Mr.S.Prabhakaran, Senior counsel for
Mr.Fakkir Mohideen
For R16 : Mr.S.R.Raghunathan
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WP.No.25691/2014:-
V.Lekha .. Petitioner
Versus
1.Teachers Recruitment Board
represented by Member Secretary
4th Floor, EVK Sampath Maligai
DPI compound, College Road,
Chennai 600 006.
2.R.Ghunasekaran
3.D.Bennet Paul Giftson
4.M.Muruganandam
5.M.A.Saleem Ahmed
6.S.Puviyarasan
7.P.Rajeswaran
8.The Bar Council of Tamil Nadu
and Puducherry rep.by its Secretary
Madras High Court campus,
Chennai 600 104.
9.The Bar Council of India
rep.by its Secretary, No.21, Rouse
Avenue, Institutional Area
New Delhi 110 002. .. Respondents
**RR 2 to 9 impleaded as per order dated 27.01.2020
made in WP.Nos.19534/2018, 25691/2014, 627/2015
Prayer:- Writ petition filed under Article 226 of the Constitution of
India praying for issuance of certiorarified mandamus to call for the
records in Advertisement No.04/2014 dated 22.07.2014 issued by the
respondent published in the newspaper for the post of Lecturer Senior
scale pre-law Sl.No.4[ii] Masters Degree in Law in recognised University
with not less than 55% marks and a good academic record. provided that
candidate belonging to SC/ST shall possess not less than 50% marks
provided further that the holders of Ph.D. degree in Law who have passed
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their Masters Degree in Law prior to the 19th September 1991, shall
possess not less than 50% of marks in the Master Degree in Law and [iv]
must have enrolled as an advocate in the Bar Council and quash the same
and consequently appoint the post of Lecturer senior scale pre law only in
respect of Serial No.4 sub clause [i] and [iii] of the Advertisement
No.4/2014 dated 22.07.2014.
For Petitioner : Mr.G.Murugendran
For R1 : Mr.N.Ramesh
For R8 : Mr.S.Prabhakaran, Senior counsel
assisted by Mr.Fakkir Mohideen
For R9 : S.R.Raghunathan
WP.No.20198/2018:-
R.Vadivel .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary, Department of Law
Secretariat. Government of Tamil Nadu
Fort St George, Chennai 600 009.
2.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006.
3.The Registrar
The Tamil Nadu Dr.Ambedkar Law University
Greenways Road, Chennai 600 028.
4.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
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WP.Nos.19534/2018 etc., batch
5.R.Ghunasekaran
6.D.Bennet Paul Giftson
7.M.Muruganandam
8.M.A.Saleem Ahmed
9.S.Puviyarasan
10.P.Rajeswaran
11.The Bar Council of Tamil Nadu
and Puducherry rep.by its Secretary
Madras High Court campus,
Chennai 600 104.
12.The Bar Council of India
rep.by its Secretary, No.21, Rouse
Avenue, Institutional Area
New Delhi 110 002. .. Respondents
**RR 5 to 12 suo motu impleaded as per order dated 27.01.2020
made in WP.Nos.20198/2018.
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
in respect of the G.O.Ms.No.464 Law Department, dated 17.07.2017 and
Notification Advertisement No.2/2018 dated 18.07.2018 issued by the
2nd respondent and quash the same and consequently, direct the
respondents to issue a fresh Notification for recruitment without insisting
on law degrees with enrollment for the post of Assistant Professor [pre
law] as per the UGC rules and regulations dated 18.07.2018.
For Petitioner : Mr.G.Thiagarajan
For RR 1, 2 & 4 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
For R3 : Mr.M.Nallathambi
WP.No.20390/2018:-
D.Karthik .. Petitioner
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WP.Nos.19534/2018 etc., batch
Versus
1.The State of Tamil Nadu
rep.by its Secretary, Department of Law
Secretariat. Government of Tamil Nadu
Fort St George, Chennai 600 009.
2.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006.
3.The Registrar
The Tamil Nadu Dr.Ambedkar Law University
Greenways Road, Chennai 600 028.
4.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
5.The Bar Council of Tamil Nadu
and Puducherry rep.by its Secretary
Madras High Court campus,
Chennai 600 104.
6.The Bar Council of India
rep.by its Secretary, No.21, Rouse
Avenue, Institutional Area
New Delhi 110 002.
7.R.Ghunasekaran
8.D.Bennet Paul Giftson
9.M.Muruganandam
10.M.A.Saleem Ahmed
11.S.Puviyarasan
12.P.Rajeswaran .. Respondents
**RR 5 to 12 suo motu impleaded as per order dated 27.01.2020
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WP.Nos.19534/2018 etc., batch
made in WMP.No.17663/2019 in WP.Nos.20390/2018.
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
in respect of the G.O.Ms.No.464 Law Department, dated 17.07.2017 and
Notification Advertisement No.2/2018 dated 18.07.2018 issued by the 1st
respondent and quash the same and consequently, direct the respondents
to issue a fresh Notification for recruitment without insisting on law
degrees with enrollment for the post of Assistant Professor [pre law] as
per the UGC rules and regulations dated 18.07.2018.
For Petitioner : Mr.G.Thiagarajan
For RR 1, 2 & 4 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
For R3 : Mr.M.Nallathambi
For R5 : Mr.S.Prabharkaran, Senior Counsel for
Mr.Fakkir Mohideen
For R6 : Mr.S.R.Raghunathan
For RR 7 to 12 : Mr.G.Sankaran
WP.No.20391/2018:-
D.Chinnusamy .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary, Department of Law
Secretariat. Government of Tamil Nadu
Fort St George, Chennai 600 009.
2.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
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WP.Nos.19534/2018 etc., batch
DPI Compound, College Road
Chennai 600 006.
3.The Registrar
The Tamil Nadu Dr.Ambedkar Law University
Greenways Road, Chennai 600 028.
4.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
5.The Bar Council of Tamil Nadu
and Puducherry rep.by its Secretary
Madras High Court campus,
Chennai 600 104.
6.The Bar Council of India
rep.by its Secretary, No.21, Rouse
Avenue, Institutional Area
New Delhi 110 002. .. Respondents
**RR 5 & 6 suo motu impleaded as per order dated 27.01.2020
made in WP.Nos.20389 to 20391/2018.
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
in respect of the G.O.Ms.No.464 Law Department, dated 17.07.2017 and
Notification Advertisement No.2/2018 dated 18.07.2018 issued by the 1st
respondent and quash the same and consequently, direct the respondents
to issue a fresh Notification for recruitment without insisting on law
degrees with enrollment for the post of Assistant Professor [pre law] as
per the UGC rules and regulations dated 18.07.2018.
For Petitioner : Mr.G.Thiagarajan
For RR 1, 2 & 4 : Mr.R.Shanmugasundaram, Advocate
General assisted by
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WP.Nos.19534/2018 etc., batch
Mr.P.Balathandayutham, GA
For R3 : Mr.M.Nallathambi
For R5 : Mr.S.Prabharkaran, Senior Counsel for
Mr.Fakkir Mohideen
For R6 : Mr.S.R.Raghunathan
WP.No.20389/2018:-
P.Vinu Prasad .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary, Department of Law
Secretariat. Government of Tamil Nadu
Fort St George, Chennai 600 009.
2.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006.
3.The Registrar
The Tamil Nadu Dr.Ambedkar Law University
Greenways Road, Chennai 600 028.
4.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
5.The Bar Council of Tamil Nadu
and Puducherry rep.by its Secretary
Madras High Court campus,
Chennai 600 104.
6.The Bar Council of India
rep.by its Secretary, No.21, Rouse
Avenue, Institutional Area
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WP.Nos.19534/2018 etc., batch
New Delhi 110 002. .. Respondents
**RR 5 & 6 suo motu impleaded as per order dated 27.01.2020
made in WP.Nos.20389 to 20391/2018.
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
in respect of the G.O.Ms.No.464 Law Department, dated 17.07.2017 and
Notification Advertisement No.2/2018 dated 18.07.2018 issued by the 1st
respondent and quash the same and consequently, direct the respondents
to issue a fresh Notification for recruitment without insisting on law
degrees with enrollment for the post of Assistant Professor [pre law] as
per the UGC rules and regulations dated 18.07.2018.
For Petitioner : Mr.G.Thiagarajan
For RR 1, 2 & 4 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
For R3 : Mr.M.Nallathambi
For R5 : Mr.S.Prabharkaran, Senior Counsel for
Mr.Fakkir Mohideen
For R6 : Mr.S.R.Raghunathan
WP.No.18328/2019:-
R.Ghunasekaran .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary to Government
Law Department, Secretariat
Fort St George, Chennai 600 009.
2.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
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WP.Nos.19534/2018 etc., batch
3.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
relating to the impugned provisional selection list published through the
official website of the 3rd respondent in No.Nil dated 14.05.2019 and to
quash the same insofar as declaration of the results for the post of
Assistant Professor [Pre Law] in the subject of Economics as 'not
available' is concerned and consequently directing the respondents to
select and appoint the petitioner [Roll No.18PL17001] to the post of
Assistant Professor [Pre Law] in the subject of Economics based on merit
in the selection.
For Petitioner : Mr.G.Sankaran
For R1 to R3 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
WP.No.18335/2019:-
S.Puviyarasan .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary to Government
Law Department, Secretariat
Fort St George, Chennai 600 009.
2.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
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WP.Nos.19534/2018 etc., batch
3.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
relating to the impugned provisional selection list published through the
official website of the 3rd respondent in No.Nil dated 14.05.2019 and to
quash the same insofar as declaration of the results for the post of
Assistant Professor [Pre Law] in the subject of Economics as 'not
available' is concerned and consequently directing the respondents to
select and appoint the petitioner [Roll No.18PL17002] to the post of
Assistant Professor [Pre Law] in the subject of Economics based on merit
in the selection.
For Petitioner : Mr.G.Sankaran
For R1 to R3 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
WP.No.18341/2019:-
P.Rajeswaran .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary to Government
Law Department, Secretariat
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WP.Nos.19534/2018 etc., batch
Fort St George, Chennai 600 009.
2.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
3.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
relating to the impugned provisional selection list published through the
official website of the 3rd respondent in No.Nil dated 14.05.2019 and to
quash the same insofar as declaration of the results for the post of
Assistant Professor [Pre Law] in the subject of Economics as 'not
available' is concerned and consequently directing the respondents to
select and appoint the petitioner [Roll No.18PL17004] to the post of
Assistant Professor [Pre Law] in the subject of Economics based on merit
in the selection.
For Petitioner : Mr.G.Sankaran
For R1 to R3 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
WP.No.18342/2019:-
M.Muruganandam ..
Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary to Government
Law Department, Secretariat
Fort St George, Chennai 600 009.
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2.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
3.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
relating to the impugned provisional selection list published through the
official website of the 3rd respondent in No.Nil dated 14.05.2019 and to
quash the same insofar as declaration of the results for the post of
Assistant Professor [Pre Law] in the subject of Economics as 'not
available' is concerned and consequently directing the respondents to
select and appoint the petitioner [Roll No.18PL15002] to the post of
Assistant Professor [Pre Law] in the subject of Economics based on merit
in the selection.
For Petitioner : Mr.G.Sankaran
For R1 to R3 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
WP.No.18347/2019:-
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M.A.Saleem Ahmed .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary to Government
Law Department, Secretariat
Fort St George, Chennai 600 009.
2.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
3.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
relating to the impugned provisional selection list published through the
official website of the 3rd respondent in No.Nil dated 14.05.2019 and to
quash the same insofar as declaration of the results for the post of
Assistant Professor [Pre Law] in the subject of Economics as 'not
available' is concerned and consequently directing the respondents to
select and appoint the petitioner [Roll No.18PL14009] to the post of
Assistant Professor [Pre Law] in the subject of Economics based on merit
in the selection.
For Petitioner : Mr.G.Sankaran
For R1 to R3 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
WP.No.18348/2019:-
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D.Bennet Paul Giftson .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary to Government
Law Department, Secretariat
Fort St George, Chennai 600 009.
2.The Director
O/o.Directorate of Legal Studies
Kilpauk, Chennai 600 010.
3.The Member Secretary
Teachers' Recruitment Board
4th Floor EVK Sampath maaligai
DPI Compound, College Road
Chennai 600 006. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus calling for the records
relating to the impugned provisional selection list published through the
official website of the 3rd respondent in No.Nil dated 14.05.2019 and to
quash the same insofar as declaration of the results for the post of
Assistant Professor [Pre Law] in the subject of Economics as 'not
available' is concerned and consequently directing the respondents to
select and appoint the petitioner [Roll No.18PL16002] to the post of
Assistant Professor [Pre Law] in the subject of Economics based on merit
in the selection.
For Petitioner : Mr.G.Sankaran
For R1 to R3 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
WP.No.5172/2020:-
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Dr.K.Sangeetha .. Petitioner
Versus
1.The Tamil Nadu Dr.Ambedkar Law University
rep.by its Registrar Incharge, Poompozhil
No.5, Dr.D.G.S.Dinakaran Salai
Chennai 600 028.
2.The Member Secretary
University Grants Commission,
Bahadur Shah Zafar Marg
New Delhi 110 002. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of declaration declaring the notification dated
12.01.2020 issued by the 1st respondent/University inviting applications
for various posts including post of Associate Professor as illegal, arbitrary
and contrary to law insofar as the general instructions imposing a
condition that qualifying degree should be through regular mode and that
the degrees obtained through open/correspondence/distance
education/private study are not eligible and consequently direct the 1st
respondent to issue fresh notification prescribing qualification as per the
UGC norms.
For Petitioner : Mr.Balan Haridas
For R1 : Mr.V.Vasanthakumar
For R2 : Mr.P.R.Gopinath
WP.No.17929/2019:-
P.Mohandoss .. Petitioner
Versus
1.The Principal Secretary
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Law Department Secretariat St.George Fort
Chennai -9.
2.The Director of Legal Studies
Directorate of Legal Studies
Pursaiwakkam High Road Kilpauk Chennai -10.
3.The Chairaman
Teachers Recruitment Board (TRB) 4th Floor
EVK Sampath Maaligai DPI Compound College
Road Chennai 600006.
4.The Mother Terasa Womens University
Rep. by its Registrar Kodaikanal,
Dindigual District. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of certiorarifed mandamus to Call for the records
in connection with the proceedings in the Provisional Selection List of
Candidates - in Environmental Law for the Recruitment of Assistant
professor of Law 2017 -2018 dated 14/05/2019 of 3rd respondent and
quash the same and consequently direct the 3rd respondent to publish the
petitioners Interview Result with respect Enviornmental Law for
Recruitment of Assistant Professor of Law 2017 -2018 and consequently
direct the 1st and 2nd respondents to Appoint the petitioners as Assistant
Professor of Law Environmental Law 2017 - 2018 in any of the
Government Law Colleges in Tamil Nadu based on the petitioners
Representation dated 21/05/2019.
For Petitioner : Mr.R.K.Gandhi
For RR1 to 4 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
WP.No.24392/2019:-
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Dr.Gowri Ramesh ..
Petitioner
Versus
1 The Secretary to the Government
Law Department Government of Tamil Nadu
Fort St. George Chennai 600 009.
2 The Director of Legal Studies
The Directorate of Legal Studies
Purusaiwalkkam High Road Kilpauk Chennai
600 010.
3 The Member Secretary
Teachers Recruitment Board DPI Compound
College Road Nungambakkam
Chennai 600 034. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of mandamus Directing the 1st and 2nd
Respondents to redraw the inter-se- seniority list as mentioned in G.O.
Ms. No. 170 Law (LS) Dept. dated 22.07.2008 based on the date of
acquisition of the qualification for the said posts as prescribed by the
UGC in consonance with the date of appointment / regularization /
acquisition of the NET qualification and consequently direct the 1st and
2nd Respondents to consider only those persons who possess requisite
qualification as prescribed by the UGC in the panel of Associate
Professors to be drawn for appointment to the post of Principals.
For Petitioner : Mr.S.Sivashanmugam
For RR1 & 2 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
WP.No.25218/2019:-
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V.Sivasankari .. Petitioner
Versus
1 Government of Tamilnadu
Rep by the Secretary to Government Law
Department Secretariat Chennai 9
2 The Director of Legal Studies
Kilpauk Chennai 10
3 The Member Secretary
Teachers Recruitment Board 4th Floor E.V.K.
Sampath Maaligai DPI Campus College Road
Chennai 6
4 The Registrar
The Tamil Nadu Dr.Ambedkar Law University
Taramani Chennai .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India seeking for a writ of mandamus directing the respondents 1 to 3 to
club the subjects Criminal Law and Criminal Justice Administration and
Crime and Torts into one subject and fill up the vacancy with the
available shortlisted candidates following the communal roster within the
time stipulated by this Court.
For Petitioner : Mr.M.Devaraj
For RR 1 & 2 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
Rev. Appln.195 of 2019 in W.A.No.533 of 2018:-
P.Vinu Prasad ... Petitioner
Versus
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1.The Secretary,
Law Department,
The Secretariat, Fort St. George,
Kamarajar Salai, Chennai - 600 003.
2.The Director of Legal Studies,
Directorate of Legal Studies,
Purusaiwalkkam High Road, Chennai.
3.The Chairman
Teachers Recruitment Board,
4th Floor, EVK Sampath Maligai,
DPI Compound, College Road,
Chennai 600 006.
4.The Secretary,
Education Department,
The Secretariat, Fort St. George,
Kamarajar Salai, Chennai - 600 003.
5.The Secretary
Bar Council of Tamil Nadu,
NSC Bose Road,
Chennai - 600 104.
6.The University Grants Commission,
Rep. by its Secretary,
Bahadur Shah Zafar Marg
New Delhi 110 002.
7.The Tamil Nadu Dr.Ambedkar Law University,
Rep. by its Registrar,
"Poompozhil", Greenways Road,
Adayar, Chennai - 600 028. .. Respondents
Prayer:- Petition filed under Order XLVII Rule (1) & (2) of Civil
Procedure Code read with Section 114 of C.P.C. praying to review the
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order passed in W.A.No.533 of 2018 dated 09.03.2018 preferred against
the order passed in W.P.No.33145 of 2017 on the file of this Court.
For Review Applicant : Mr.Ezhilarasan
For RR1 to 4 : Mr.R.Shanmugasundaram, Advocate
General assisted by
Mr.P.Balathandayutham, GA
For R5 : Mr.S.Prabharkaran, Senior Counsel for
Mr.C.K.Chandrashekaran
For R6 : Mr.P.R.Gopinath
For R7 : Mr.M.Nallathambi
COMMON ORDER
V.PARTHIBAN, J.,
A batch of writ petitions have been filed by one group of petitioners
challenging the Notification issued by the Teachers Recruitment Board
[hereinafter referred to as ''TRB''] dated 18.07.2018 for recruitment to the
post of Assistant Professors [Pre Law] in Government Law Colleges in
the State of Tamil Nadu for the year 2017-18. The essence of challenge
in the writ petitions is that among the other qualifications, prescription of
Masters Degree in Law of any recognized University with not less than
55% of marks and must have enrolled as an Advocate in the Bar Council.
These qualifications have been prescribed apart from the main
qualification, viz., Post Graduation Degree in the respective subject from
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the Universities in the State of Tamil Nadu with not less than 55% of
marks and must have qualified in National Eligibility Test [in short
'NET']. According to the candidates who have set up the challenge in
these writ petitions, the qualification of Masters Degree in Law and
enrollment as an advocate, are non-essential qualifications which have
absolutely no value addition to their appointment, as they are to be
recruited only for teaching pre-law courses in the subject concerned.
2 The prescription of qualifications in the subject recruitment
is assailed on various grounds as contended by the respective learned
counsels appearing for the writ petitioners. The uniform contention of all
the learned counsels appearing for the candidates is that no other
University or any Colleges, either in the State of Tamil Nadu or in the
entire country, prescribe these two qualifications, viz., Masters Degree in
Law and enrollment as an advocate, as qualifications for the purpose of
appointment to the post of Assistant Professors in pre-law courses. Only
in respect of the Government Colleges in the State of Tamil Nadu such
qualifications have been prescribed. According to them, qualifications as
prescribed above cannot stand the test of validity of Article 14 of the
Constitution of India, as the qualifications being thoroughly irrational,
unreasonable and arbitrary.
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3 Mr.G.Murugendran, learned counsel appearing for some of
the writ petitioners would, at the outset, submit that there are two
Notifications which are the subject matter of challenge in the present
batch of writ petitions. One is the Notification issued in the year 2014
prescribing the same qualifications and the other is the Notification issued
in the year 2018 dated 18.07.2018. According to the learned counsel,
though the candidates he represent, did not have the qualification as
prescribed in the Notification, they were however, allowed to participate
in the selection in pursuance of the 2018 Notification, by an interim
order of this Court in one of the writ petitions in WP.No.19534/2018
dated 31.07.2018. A learned Judge of this Court directed TRB to accept
the application and allow the petitioner therein to participate in the
selection process and his participation and result, shall be subject to the
outcome of the writ petition. The learned Judge has given this direction
on a prima facie consideration of the issues raised in the writ petition and
the participation of such candidates are subject to the final outcome of the
pending writ petitions.
4 According to the learned counsel, the candidates who are not
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having M.L., degree and not enrolled as advocates, were allowed to
participate in the selection and they were also provisionally selected upto
the level of interview and their final results have been withheld in view of
the pendency of these writ petitions. As far as the challenge to the 2014
Notification was concerned, a writ petition was filed by one of the
candidates challenging the original Government Orders passed in
G.O.Ms.No.1349, Education Department dated 19.11.1985 and amended
G.O.Ms.No.264, Law Department dated 20.12.2005, originally
prescribing the controversial qualification of M.L.Degree and enrollment
as an advocate. The learned Judge appeared to have dismissed the writ
petition and as against that, WA.No.533/2018 was filed. A Division
Bench of this Court, vide judgment dated 09.03.2018, dismissed the writ
appeal after extracting the observations of the learned Single Judge. The
learned Single Judge has held while dismissing the claim of the candidate,
stating that it was always open to the employer to fix higher qualification
than one fixed by the University Grants Commission [in short 'UGC'] and
also that the Government Orders issued, had been in vogue several years
from 1985 and 2005 and the challenge after such a distance of time was
found to be unsustainable. The Division Bench which heard the writ
appeal, concurred with the legal findings of the learned Single Judge and
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eventually dismissed the writ appeal on 09.03.2018.
5 According to the learned counsel, as against
WA.No.533/2018, Rev.Appln.No.195/2019 has been filed and the same
is also the subject matter of adjudication before this Court. Learned
counsel would submit that one other Division Bench has taken a similar
view in response to the challenge to the qualification in
WA.No.2484/2018 dated 13.11.2018. The Division Bench, after
recording the reasons stated therein and also on consideration of a
decision of the Hon'ble Supreme Court of India, did not agree with the
grounds raised in the writ appeal. The learned counsel referred to
paragraph No.6 onwards of the judgment of the Division Bench which
are extracted hereunder:-
''6.Though, Mr.E.C.Ramesh, learned counsel
for the appellant reiterated the grounds stated
supra, we are not inclined to entertain the appeal
for the following reasons,
[1]Examination for filling up of the above
said ''Assistant Professor [Pre Law]'' is stated to be
over.
[2]Besides, as rightly observed, the
appellant has approached this Court after the last
date of submission of application is over.
[3]Thirdly, it is for the employer to prescribe
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the required qualifications for any post in the
service.
7. In P.U.Joshi and others vs. Accountant
General Ahmedabad and others reported in (2003)
2 Supreme Court cases 632, the Hon'ble Supreme
Court, held that prescription of educational / other
qualifications is purely the prerogative of the
Government and that it is not open to the petitioner
or any other applicant to suggest what should be
the educational or other qualifications required for
the post. At paragraph No.10 of the judgement, the
Hon'ble Supreme Court held as follows:
10.Questions relating to the
constitution, pattern, nomenclature of posts,
cadres, categories, their creation/abolition,
prescription of qualifications and other
conditions of service including avenues of
promotions and criteria to the fulfilled for
such promotions pertain to the field of
policy is within the exclusive discretion and
jurisdiction of the State, subject, of course,
to the limitations or restrictions envisaged
in the constitution of India and it is not for
the statutory tribunals, at any rate, to direct
the Government to have a particular method
of recruitment of eligibility criteria or
avenues of promotion or impose itself by
substituting its views for that of the State.
Similarly, it is well open and within the
competency of the State to change the rules
relating to a service and alter or amend and
vary by addition/subtraction the
qualifications, eligibility criteria and other
conditions of service including avenues of
promotion, from time to time, as the
administrative exigencies may need or
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necessitate. Likewise, the State by
appropriate rules is entitled to amalgamate
departments or bifurcate departments into
more and constitute different categories of
posts or cadres by undertaking further
classification, bifurcation or amalgamation
as well as reconstitute and restructure the
pattern and cadres/categories of service, as
may be required from time to time by
abolishing the existing cadres/posts and
creating new cadres/posts. There is no right
in any employee of the State to claim that
rules governing conditions of his service
should be forever the same as the one when
he entered service for all purposes and
except for ensuring or safeguarding rights
or benefits already earned, acquired or
accrued at a particular point of time, a
government servant has no right to
challenge the authority of the State to
amend, alter and bring into force new rules
relating to even an existing service.''
8. P.U.Joshi's case has been considered in
Chandigarh Admn. v. Usha Kheterpal Waie,
reported in (2011) 9 SCC 645, wherein at
paragraph No.12, the Hon'ble Supreme Court held
thus,
''12 .....It is now well settled that it is
for the rule-making authority or the
appointing authority to prescribe the mode
of selection and minimum qualification for
any recruitment. Courts and tribunals can
neither prescribe the qualifications nor
entrench upon the power of the concerned
authority so long as the qualifications
prescribed by the employer is reasonably
relevant and has a rational nexus with the
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functions and duties attached to the post
and are not violative of any provision of
Constitution, statute and Rules. ...
9.For the reasons stated supra, instant Writ
Appeal is dismissed. No costs. Consequently, the
connected civil miscellaneous petition is closed.''
6 The learned counsel would proceed to refer certain salient
facts and circumstances as to why the prescription of qualification of
M.L., Degree and enrollment as advocate, cannot be countenanced both
in law and on facts. The learned counsel would premise his entire
arguments on the reason that for Assistant Professor to the post of pre-
law courses in the Law Colleges, requirement of M.L., Degree or
enrollment as an advocate cannot be insisted upon, as the Assistant
Professors are not required to take any courses relating to core law
subjects. After the introduction of the integrated Five Year Law Course,
several non law subjects have been introduced in the curriculum like
Economics, Sociology, Philosophy, Commerce, Science, Business
Management etc. In order to take classes of these non law subjects,
Assistant Professors are being recruited with Post Graduate Degree in the
relevant subject with 55% marks and also the clearance of NET. When a
candidate satisfies this criterion in the subject concerned, insisting of
M.L.Degree in law and enrollment as an advocate as a condition
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precedent for being considered for appointment is ex-facie irrational and
acquisition of such degrees have no value addition at all in the actual
discharge of duties by these Assistant Professors.
7 The learned counsel would draw the attention of this Court
to the syllabus framed by the Department of Legal Studies in respect of
Five Year B.A.,L.L.B., course. The learned counsel referred to the
syllabus taught in Economics as one of the candidates he represented,
had applied for the post of Assistant Professor [Economics]. He has
drawn the attention of this Court to various subjects listed under the
caption ''General Principles of Economics'', in the First year pre-law
course. The various subjects listed under the broad caption Economics
relate to and connected with the various branches of Economics. When a
candidate is being recruited to take classes for Economics or Sociology,
as the case may be, the necessity of mandatory Masters Degree in Law or
enrollment, is bereft of any nexus with the job of Assistant Professor in
Economics or Sociology. According to him, M.L., degree or enrollment
as an advocate, is not a higher qualification, but it is a qualification
unconnected with the main qualification.
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8 According to the learned counsel, the Division Bench
decisions dismissing the challenge earlier, the prescription was construed
as a higher qualification and therefore, the Bench held that it was always
open to the State or the University to prescribe higher qualification than
what prescribed by the Central Regulating Body, viz., UGC. However,
the Division Benches have lost sight of the fact that Masters Degree in
Law was not a higher qualification, but a qualification unconnected with
the Post Graduate qualification in the relevant subject which alone is
essential for effective discharge of duties as Assistant Professor teaching
pre-law courses.
9 The learned counsel has also drawn the attention of this
Court to various documents stating that how the candidates he
represented had been successful in the selection, but finally their results
had been withheld in view of the pendency of these writ petitions. He
relied on the following decisions, in support of his contentions.
[a] 2015 [8] SCC 129 [P.Suseela and others V. University
Grants Commission and Others]. The above said decision has been
relied by the learned counsel in order to lay emphasis that prescription of
NET/SLET/SET as minimum eligibility condition for appointment as
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Assistant Professor was held to be valid and effective from 30.06.2010
and no exemption is permissible.
[b] On the same line, another decision was relied upon reported
in 2018 [3] SCC 329 [State of Madhya Pradesh and Others Vs. Manoj
Sharma and Others]. The above two decisions may not be strictly
relevant for consideration of this Court as the principal dispute to be
considered herein is whether the prescription of M.L.Degree and
enrollment as an advocate as the qualifications is valid or not in the facts
and circumstances of the case.
[c] The learned counsel also relied upon the decision reported in
2014 [3] SCC 767 [Ganapath Singh Gangaram Singh Rajput Vs.
Gulbarga University represented by its Registrar and Others] and
2003 [3] SCC 548 [Yogesh Kumar and Others Vs. Government of
NCT, Delhi and Others]. The former decision is regarding the definition
of relevant subject for the post of Lecturer. In the said decision, the Apex
Court has held that a cross degree is not eligible and can be considered
as relevant subject. This Court feels that this decision does not advance
the case of the candidates for whom the learned counsel seek to represent
and that may become relevant when this Court considers whether cross
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degree is permissible or not. As far as the latter decision is concerned, it
may be relevant to the extent that the present qualifications have been in
vogue in the Recruitment Rules for more than three decades, would not
mean that such invalid statutory requirements would continue when it is
put to challenge.
[d] The last decision relied on by the learned counsel is the
decision reported in 2007 [2] SCC 202 [Bar Council of India V. Board
of Management, Dayanand College of Law and Others]. This is the
decision where the Apex Court has held that the Bar Council of India
[hereinafter referred to as 'BCI'] has an effective say in prescription of
norms for the legal education. In fact, the Apex Court has
discountenanced the argument that BCI had no role in prescription of
qualifications for legal education. The relevant paragraphs of the
judgment would be referred to infra at the appropriate place in the present
judgment.
10 The learned counsel therefore summed up that BCI has, in
fact, not prescribed M.L., qualification and enrollment as advocate as part
of the eligibility criteria for appointment of Assistant Professor in pre-law
courses. As stated above, all Colleges in the entire country and
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Universities which impart legal education, have not chosen to prescribe
the qualifications as prescribed by the Directorate of Legal Studies for the
Government Law Colleges in the State of Tamil Nadu. In the said
circumstances, the learned counsel prayed before this Court to allow the
writ petitions by declaring the disputed qualifications as null and void as
being patently unreasonable, illegal, irrational and arbitrary.
11 Mr.G.Thyagarajan, learned counsel appearing for few of the
writ petitioners with the similar challenge, at the outset, would submit
that all the candidates he represent, have obtained both Under Graduate
and Post Graduate Degrees in the same subject and have also successfully
completed NET in the same subjects. Therefore, all the writ petitioners
whom he represent, are fully eligible to be appointed as Assistant
Professors in pre-law courses in the respective subjects. According to
him, at the time when the Five Year Integrated Law Courses were
introduced, there was only one subject and thereafter, over years, several
subjects have been introduced. In fact, he has referred to Part-I of the
Bar Council of India Rules [in short 'BCI Rules'] which refer to number of
pre-law subjects which are being made as part of the curriculum in pre-
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law courses in the country.
12 The learned counsel also referred to the Regulations of
Dr.Ambedkar Law University wherein Regulation 21 states that number
of teaching staff shall be appointed as per the norms prescribed by the
University/UGC/BCI. The Regulation also further states that no teacher
shall be appointed if he has not completely fulfilled the qualifications as
laid down by the UGC and the University. The teaching staff shall also
be paid as per the pay scale prescribed by UGC. According to the learned
counsel, neither UGC nor the University nor BCI prescribed the
qualifications which are presently under challenge. He also submitted
that as per the Regulations, Assistant Professors [Pre Law] cannot
become the Principal of the Law College and they can only reach at the
level of the Head of Department [HOD].
13 Mr.Balan Haridas, learned counsel appearing for the
applicant/petitioner in Rev.Appln.No.195/2019 submitted that the
judgment rendered by the Division Bench, did not have an opportunity to
consider the various important issues that are being raised before this
Court. The larger issues which are raised herein question the
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constitutionality of the so-called higher qualifications prescribed by the
State Government. Although it is a fact that G.O.Ms.No.1349, Education
Department, dated 19.11.1985 followed by G.O.Ms.No.264, Law
Department, dated 20.12.2005, had been issued many years ago and have
been holding the field very unfortunately, but in the face of the present
challenge as to its' legality, delay cannot be put against the petitioners.
When the issue of constitutional validity of a particular rule is the subject
matter of challenge, the question of delay would not arise at all.
14 The learned counsel further submitted that the Division
Benches simply dismissed the writ appeals by extracting the observations
of the learned Single Judges, stating that nothing wrong in fixing a higher
qualification and also the Government Orders were issued long time ago
and hence, no interference was called for. When a specific question has
been put to the learned counsels by this Court, whether the arguments
before this Court had been canvassed for consideration before those two
learned Benches, the response of the learned counsels was simply ''No''.
Therefore, it is not fair on the part of the learned counsels to find fault
with the decisions of the Division Benches, in the face of the admission
that no arguments were advanced in regard to the constitutionality of the
prescription of the controversial qualification.
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15 Be that as it may, as the issues presently raised, assume
larger legal significance concerning the qualification of the legal education
in the State of Tamil Nadu, this Court is inclined to critically and
incisively examine the relevant statutory provisions/Regulations, the
legislative competence of the State in terms of Schedule-VII of the
Constitution of India and the decisions of the Apex Court and the High
Courts on the subject matter.
16 Coming back to the arguments advanced by Mr.Balan
Haridas, learned counsel, he has emphasized the fact that thorough
arguments have not been advanced before the Division Benches which
referred in earlier decisions. However, the observations of the Division
Bench that there is nothing wrong in prescription of higher qualification
by the Government or the University, may not be correct, as the higher
qualification would be a higher proficiency in the subject concerned and
not in a completely different subject like Masters Degree in Law.
Therefore, the decisions of the Division Benches are misplaced on a
wrong and faulty premise, resulting in filing of the Review Petition
No.195/2019. One more factor which assumes legal significance in that
writ petition in WP.No.33145/2017 which is the subject matter of
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Rev.Petn.No.195/2019, is that the Rules have been challenged and in all
other writ petitions, the challenge is only the Notifications by the
Recruiting Agency. In fact, there are objections as to the maintainability
of the writ petitions challenging the Notification of the Recruiting Agency
in respect of the qualification on the ground that the Notification is only a
consequence of the Recruitment Rules and in such an event, the writ
petitions cannot be held maintainable. In the face of such legal objections
to the maintainability of the writ petitions challenging only the
Notifications, the adjudication of the Review Petition No.195/2019
becomes a legal necessity.
17 Mr.R.Singaravelan, learned Senior counsel appearing for
some of the candidates who satisfied all the qualifications prescribed in
the said Notification, i.e., Masters Degree in Law as well as enrollment
as a lawyer, would submit that admittedly, the Rule is being followed
ever so many Notifications since 1985. Several appointments have been
made on the basis of the said qualifications and there is no justification
for this Court to revisit the qualification as prescribed, which admittedly
stood the test of time.
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18 According to the learned Senior counsel, the disputed
qualifications have been prescribed by the Government only after taking
into consideration, the unique nature of syllabi that are being taught in
the Government Law Colleges in the State of Tamil Nadu. From the first
semester onwards, a mixture of subjects is being taught and every
Assistant Professor be it in the subject of Economics, Sociology etc., is
also expected to have knowledge in law, apart from the relevant subject
justifying his appointment as a full-time faculty. The learned Senior
Counsel referred to Rules of Legal Education as provided under Part-IV
of BCI Rules. He referred to Rule 2[a] and [b] which are extracted
hereunder:-
''2.Definitions:-
..
[iv]''Centres of Legal Education'' means
[a]All approved Departments of Law of
Universities, Colleges of Law, Constituent Colleges
under recognised Universities and affiliated
Colleges or Schools of law of recognized
Universities so approved.
Provided that a Department or College or
Institution conducting correspondence courses
through Distance Education shall not be included.
[b]National Law Universities constituted and
established by statutes of the Union or States and
mandated to start and run Law Courses.
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In the same breadth, the learned counsel also referred to Rules 17, 18, 22
and 23, which are extracted hereunder:-
''17.Core Faculty:- There shall be sufficient
number of full time faculty members in each Centre
of Legal Education [i.e., Department, constituent or
affiliated College] to teach each subject at all point
of time for running courses who can be supported
by part time or visiting faculty. Such a core faculty
shall in no case be less than six in the first year of
the approval with both streams in operation, eight
in the second year and ten in the case of third year
of law courses. In addition, for the integrated
course there shall be adequate faculty in the
subjects offered in the liberal educational subjects
as part of the course by the institution. These
faculties in the liberal educational discipline in
Arts, Science, Management, Commerce,
Engineering, Technology or any other discipline
shall possess qualification as is required under the
UGC guideline or under such other standard
setting body as the discipline is allotted to by any
Act, statute or Rules of the Government of India or
of a State.
For the Three Year Bachelor of Law degree
course only with two sections without the Honour
program, there shall be minimum of four core
faculty in the first year, six in the second and eight
in the third year in addition to the Principal/Head
or Dean as the case may be.
Provided that an institution intending to run
any specialized or Honours course must have at
least three faculty in the group in which
specialization and Honours courses are offered.
Provided further that each full time faculty
shall take as many classes in the subject or subjects
as may be assigned to them on the basis of
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standard prescribed by the standard setting
institution like UGC.
Provided further, if any institution of a
University, which was already affiliated to the
University and approved to run professional
courses of either scheme or both by the Bar Council
of India after inspection of the University, falls
short of required full time faculty, the new
admission in courses may be required to remain
suspended until new required number of faculty is
procured. The University shall before starting a
new academic session, notify which institutions are
only be allowed to admit fresh students.
Provided further that if while inspecting the
University it was found that in any institution of the
University adequate number of full time faculty was
not there in the staff, the Bar council after giving
notice to the University might give a public notice
directing the University not to admit students in the
new academic year in that institution.
18-Minimum weekly class program per
subject [paper]-
There shall be for each paper [with 4 credit]
Four class hours for one hour duration each and
one hour of tutorial / moot Court / Project work per
week.
....
22:Salary scale:-The salary paid to the
Principal shall be according to the scales
recommended by the UGC from time to time with
other benefits. Core Full Time Faculty shall
ordinarily be given usual UGC scale.
An institution may however have faculty
whose remuneration is based on contract provided
the remuneration is comparable with or more
favourable to the faculty in comparison with the
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UGC scale and salary shall be paid through
Account Payee cheque.
23:Standard Academic practice:- The Bar
Council of India may issue directives from time to
time for maintenance of the standards of legal
education. The Centre of Legal Education /
University has to follow them as compulsory.''
The learned Senior counsel further referred to the Resolution of BCI
dated 14.09.2008 with reference to Faculty Qualification and the same
reads thus:-
''Faculty Qualification:-
• Full-time members of the faculty shall
possess atleast Master of Laws [LLM]
Degree or as prescribed by the UGC.
• Members of the faculty teaching clinicial
programme may be drawn from retired
judicial officers or from the Bar.
• Visiting faculty from the profession, judiciary
or academic shall have a minimum
experience of 10 years.
• There shall be sufficient number of full-time
members of the faculty who shall be, if
necessary, supported by part-time and
visiting faculty.
• Members of the faculty shall be paid
according to UCC pay scales.
• Faculty work station shall be at least 100 sft
per workstation.''
The BCI has framed Rules in terms of Section 7[1][h] and [i] of the
Advocates Act, 1961 read with Section 24[1][c][iii] and [iiia],
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49[1][af][ag] and [d] of the Advocates act, 1961 made by the Bar
Council of India in consultation with Universities and State Bar Councils.
The qualification thus prescribed by the two Government Orders
aforementioned and also in the Recruitment Notifications, are in
consonance with the requirement laid down by the Advocates Act, 1961,
read with BCI Legal Education Rules. According to him, if only the
Assistant Professor has both Post Graduation in the relevant subject plus
Masters Degree in Law, he would be in a position to fulfill the norms of
UGC requirements of taking minimum 16 hours classes in a week. BCI
Resolutions as extracted above, insisted on full time members of the
faculty for the maintenance of good standards of legal education.
19 The learned Senior counsel drew the attention of this Court
to the syllabus prescribed by the Department of Legal Studies for the Five
Year Law Degree courses and the subjects that are taught during the first
two years, comprising four semesters. According to him, from the very
first year and from the first semester, apart form the pre-law subjects like
political science, economics, sociology etc., law subjects were also taught.
For instance, Law of Torts in the first semester, Law of Crimes in the
second semester and as the students progress to the 3rd and 4th semesters,
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more number of law subjects relating to Contracts, Family Law, Clinical
Course etc., are made part of the curriculum. In the said factual scenario,
a person with a mere possession of Post Graduation Degree in the
particular subject would not be able to fulfill the norms prescribed by
UGC in taking classes of minimum 16 hours a week. In this connection,
the learned Senior counsel referred to the relevant UGC
Norms/Regulations and as per Appendix – III Table – 1, the direct
teaching hours week is mentioned as 16 hours for Assistant Professor and
14 hours for Associate Professor and 14 hours for Professor. In order to
fulfill these norms, with a single Post Graduation degree in relevant
subject, no Assistant Professor can satisfy the norms and in which case
that there cannot be any full time faculty at all. In the absence of full time
faculty, the legal education will surely witness fall in standards.
20 The Government of Tamil Nadu has taken all aspects into
consideration, while devising the mixed curriculum right from the first
semester onwards and also the fact that unlike the other Law Colleges or
the Universities, the Government Colleges does not offer many arts/
science subjects providing scope for adequate hours of work for the pre-
law Lecturers. According to him, the Government Law Colleges cannot
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be compared to the National Law School or Ambedkar Law University as
they stand on a different footing. The learned Senior counsel further
elaborated on the aspect of the subjects being taught in Ambedkar Law
University and also in the Government Law Colleges and reiterated that
the law subjects are integrated along with the other subjects as a
comprehensive course content and only the teachers who are holders of
both Post Graduation Degree in the relevant subject and Masters Degree
in Law would be in a position to handle the classes.
21 The learned Senior counsel while making the above
submissions, has made a frontal attack on the conduct of the candidates
who challenge the Notification. According to him, those candidates have
no locus standi to challenge, as they have participated in the selection
after fully knowing the qualification prescribed in the Notification.
Having participated in the selection, it is not open to the candidates to
challenge the very prescription of the qualifications and only on the basis
of the interim orders granted by this Court, they were permitted to
participate in the selection process.
22 The learned Senior counsel has referred to G.O.Ms.No.1349
dated 19.11.1985 and also the other Government Order in
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G.O.Ms.No.264 dated 20.12.2005. Both the Government Orders have
statutory force being issued under Article 309 of the Constitution and
were issued in pursuance of the Advocates Act, 1961 and the Rules of
Legal Education. Moreover the prescription of qualifications is the
exclusive domain of the employer and precisely that is what the Division
Benches have held while discountenancing the challenge made to the
Notification in the earlier round of litigation by the then unqualified
candidates. He has also referred to paragraphs Nos.6 to 9 of the Division
Bench judgment made in WA.NO.2484/2018 dated 13.11.2018, which
have already been extracted supra.
23 The learned Senior counsel in fact relied on the other
Division Bench decision made in WA.No.533/2018 dated 09.03.2018,
drawing support from the findings of that decision where the challenge
was discountenanced. As stated above, Rev.Petn.No.195/2019 is a part
of this Court consideration which arose out of the above said Division
Bench judgment dated 09.03.2018. He also relied on a Full Bench
decision of this Court dated 23.07.2018 made in WP.No.44242/2016
etc., batch, particularly, paragraph Nos.55, 56 and 59, which read thus:-
''55.There is a difference between Open
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Universities and other Universities and / or
Boards, in that some of these Open Universities
enable candidates, who do not have the basic
qualifications, to obtain higher qualifications
straight away. By prosecuting studies through
Open Universities, it may be possible for a
candidate to obtain a Post Graduate Degree or a
Three Year LLB Degree with being a Graduate or
to obtain a Graduate degree without having the
Senior Secondary School Certificate. In our view,
the Bar Council of India, in its wisdom, framed the
Legal Education Rules making a Graduate degree
upon prosecution of a regular course from a
University, whose degree in Law is recognized by
the Bar Council of India, a mandatory eligibility
criteria.
56.Had it been the intention of the Bar
Council that for admission to Three Year LLB
Course, a candidate would be required to obtain
all the previous requisite degrees and Certificates,
such as the Secondary School Certificate and
Senior Secondary School Certificate, by
prosecuting a regular course, the Legal Education
Rules would have specifically provided so.
...
59.In view of the observations above, we hold
that candidates who have obtained the Three Year
LLB degree from a University established by
Statute, recognised by the University Grants
Commission approved affiliated Centre of Legal
Education / Departments of the recognised
University as approved by the Bar Council of India
for the purpose of enrollment, after graduating
from Universities established by statute by
prosecuting regular Bachelor's degree courses,
shall not be refused enrollment. Once a degree is
found to be authentic, it is not for the Bar Council
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to go behind the degree and enquire into the
eligibility of the candidates to take admission in the
University.''
24 The learned Senior counsel also referred the decision
reported in 2018 [16] SCC 533 [Abdul Motin Vs. Manisankar Maiti
and Others], and referred to paragraphs 12, 13 and 14, which are
extracted hereunder:-
''12.Having heard the learned counsel
appearing for the parties and having considered
the ratio in Annamalai University [Annamalai
University v.Information & Tourism Deptt., (2009)
4 SCC 590 : 3 SCEC 532] , we are of the view that
the effect of that decision is to the contrary. In
Annamalai University [Annamalai University v.
Information & Tourism Deptt., (2009) 4 SCC 590 :
3 SCEC 532] , this Court observed that the
University Grants Commission Act which was
enacted by Parliament under Schedule VII List I
Entry 66 to the Constitution of India, was so
enacted for effectuating coordination and
determination of standards in universities. Its
provisions are binding on all universities whether
conventional or open and its powers are very
broad. The Regulations framed under that Act
apply equally to open universities as well as also to
formal conventional universities vide paras 40-42
of the said judgment which read as under: (SCC p.
607)
“40. The UGC Act was enacted by
Parliament in exercise of its power under
Schedule VII List I Entry 66 to the
Constitution of India whereas the Open
University Act was enacted by Parliament in
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exercise of its power under Entry 25 of List
III thereof. The question of repugnancy of
the provisions of the said two Acts,
therefore, does not arise. It is true that the
Statement of Objects and Reasons of the
Open University Act shows that the formal
system of education had not been able to
provide an effective means to equalise
educational opportunities. The system is
rigid inter alia in respect of attendance in
classrooms. Combinations of subjects are
also inflexible.
41. Was the alternative system envisaged
under the Open University Act in
substitution of the formal system, is the
question. In our opinion, in the matter of
ensuring the standard of education, it is
not. The distinction between a formal system
and informal system is in the mode and
manner in which education is imparted. The
UGC Act was enacted for effectuating
coordination and determination of
standards in universities. The purport and
object for which it was enacted must be
given full effect.
42. The provisions of the UGC Act are
binding on all universities whether
conventional or open. Its powers are very
broad. The Regulations framed by it in
terms of clauses (e), (f), (g) and (h) of sub-
section (1) of Section 26 are of wide
amplitude. They apply equally to open
universities as also to formal conventional
universities. In the matter of higher
education, it is necessary to maintain
minimum standards of instructions. Such
minimum standards of instructions are
required to be defined by UGC. The
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standards and the coordination of work or
facilities in universities must be maintained
and for that purpose required to be
regulated. The powers of UGC under
Sections 26(1)(f) and 26(1)(g) are very
broad in nature. Subordinate legislation as
is well known when validly made becomes
part of the Act. We have noticed
hereinabove that the functions of UGC are
all-pervasive in respect of the matters
specified in clause (d) of sub-section (1) of
Section 12-A and clauses (a) and (c) of sub-
section (2) thereof.”
13.We might also take note of communications
dated 5-5-2004 and 14-10-2013 made by the
University Grants Commission to the
Registrar/Director of all Universities, which are as
follows:
“F1-52/2000 (CPP-II)
5-5-2004
The Registrar/Director of
all the Indian Universities (Deemed,
State, Central Universities/Institutions
of National Importance)
Subject : Recognition of Degrees awarded by Open
Universities.
Sir/Madam,
…………
…………
…………
…………
May, I therefore request you to treat the
Degree/Diploma/Certificates awarded by the Open
Universities in conformity with the UGC
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notification on Specification of Degrees as
equivalent to the corresponding awards of the
traditional Universities in the country.
Yours faithfully,
(Dr [Mrs] Pankaj Mittal)
Joint Secretary
University Grants Commission”
AND
“F. No. UGC/DEB/2013
Dated : 14-10-2013
The Registrar/Director
of all the Indian Universities
(Deemed, State, Central
Universities/Institutions of
National Importance)
Subject : Equivalence of Degree awarded by Open
and Distance Learning (ODL) Institutions on a par
with Conventional Universities/Institutions.
Sir/Madam,
…………
…………
…………
…………
Accordingly, the Degrees/Diplomas/Certificates
awarded for programmes conducted by the ODL
institutions, recognised by DEC (erstwhile) and
UGC, in conformity with UGC notification on
specification of Degrees should be treated as
equivalent to the corresponding awards of the
Degree/Diploma/Certificate of the traditional
Universities/Institutions in the country.
(Vikram Sahay)
Director (Admn.)
University Grants Commission”
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14.In view of the observations in Annamalai
University [Annamalai University v. Information &
Tourism Deptt., (2009) 4 SCC 590 : 3 SCEC 532]
and the above directive, we are of the view that as a
consequence, PhD degree issued by an open
university and another PhD degree issued by a
formal conventional university must, therefore, be
treated on a par having been so issued under the
uniform standards prescribed by the University
Grants Commission Act. ''
The above decisions have been cited by the learned Senior counsel in
relation to the allied issues raised in these batch of writ petitions stating
that whether for appointment of a teaching faculty, Post Graduate degree
obtained through Open University or Distance Education Programme is
valid or not? According to the learned Senior counsel, the decision of the
Full Bench of this Court has concluded this issue once and for all that
once a recognized Board issues a Certificate, the validity of the same
cannot be questioned. The Apex Court has also held that after
Annamalai University's case, the degree awarded by the Open
University is in conformity with UGC Regulation and is equivalent to the
corresponding degrees awarded by the Traditional Universities.
25 Mr.R.Singaravelan, learned Senior counsel has referred to
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the latest Rules of Legal Education, 2019, laying down maintenance of
standards of legal education issued by the BCI. He has specifically
referred to Schedules relating to the academic standards and the courses
to be studied including the subjects in liberal discipline in integrated
stream. He emphasized the fact that the programme is niche education
programme of fact and law, one complementing and supplementing the
other. The integrated programme is the study of two degree programmes
in tandem like arts and law, science and law, commerce and law, etc. In
view of such curriculum design, the M.L., degree is a must for any faculty
to fit into the system. However, this Court has been informed that the
latest Legal Education Rules, 2019 has not yet been notified. In any
event, the learned Senior counsel would submit that it may have a
persuasive value in order ot understand as to how the future legal
education would be conducted. The learned Senior Counsel relied on
several other decisions in support of his contentions and those decisions
and relevant paragraphs are extracted hereunder:-
[a] AIR 1965 SC 491 [The University of Mysore and Another V.
C.D.Govinda Rao and Another];- '
''12. Before we part with these appeals,
however, reference must be made to two other
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matters. In dealing with the case presented before it
by the respondent, the High Court has criticised the
report made by the Board and has observed that
the circumstances disclosed by the report made it
difficult for the High Court to treat the
recommendations made by the expert with the
respect that they generally deserve. We are unable
to see the point of criticism of the High Court in
such academic matters. Boards of Appointments are
nominated by the Universities and when
recommendations made by them and the
appointments following on them, are challenged
before courts, normally the courts should be slow to
interfere with the opinions expressed by the
experts. There is no allegation about mala fides
against the experts who constituted the present
Board; and so, we think, it would normally be wise
and safe for the courts to leave the decisions of
academic matters to experts who are more familiar
with the problems they face than the courts
generally can be.''
[b] 1990 [2] SCC 746 [Neelima Misra V. Harinder Kaur Paintal
and others] :-
''30. The order of the Chancellor impugned
in this case indicates very clearly that he has
considered the recommendation of the Selection
Committee and the opinion expressed by the
Executive Council. He has stated and in our
opinion, very rightly that the appellant possesses
the prescribed qualification for appointment as
Reader. The decision of the Chancellor gets
support from the Statute 11.01 of the First Statute.
The Statute 11.01 is in these terms:
“11.01 (1) In the case of the Faculties of Arts,
Commerce and Science, the following shall be the
minimum qualifications for the post of Lecturer in
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the University, namely—
(a) A doctorate in the subject of study concerned or
a published work of a high standard in that subject;
and
(b) Consistently good academic record (that is to
say, the overall record of all assessment throughout
the academic career of a candidate), with first class
or high second class that is to say, with an
aggregate of more than 54 per cent marks Master's
Degree in the subject concerned or equivalent
degree of a foreign University in such subject.
(2) Where the Selection Committee is of the opinion
that the research work of a candidate, as evidenced
either by his thesis or by his published work, is of a
very high standard, it may relax any of the
qualifications specified in sub-clause (b) of clause
(1).”
31. The minimum qualification prescribed for
the post is a doctorate in the subject of study
concerned or a published work of high standard in
the subject. The appellant then was found to have
an alternate qualification though not a doctorate in
the subject. The Selection Committee has accepted
the alternate qualification as sufficient and did not
relax the essential qualification prescribed for the
post. The Executive Council appears to have
committed an error in stating that the appellant has
lacked the essential qualification and the Selection
Committee has relaxed the essential qualification.
The Chancellor was, therefore, justified in rejecting
the opinion of the Executive Council.
32. It is not unimportant to point out that in
matters of appointment in the academic field the
court generally does not interfere. In the University
of Mysore v. C.D. Govinda Rao [(1964) 4 SCR 575:
AIR 1965 SC 491] , this Court observed that the
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courts should be slow to interfere with the opinion
expressed by the experts in the absence of mala fide
alleged against the experts. When appointments are
based on recommendations of experts nominated by
the Universities, the High Court has got only to see
whether the appointment had contravened any
statutory or binding rule or ordinance. The High
Court should show due regard to the opinion
expressed by the experts constituting the Selection
Committee and its recommendation on which the
Chancellor has acted. See also the decisions in J.P.
Kulshreshtha v. Chancellor, Allahabad University,
Raj Bhavan [(1980) 3 SCC 418: 1980 SCC (L&S)
436: (1980) 3 SCR 902, 912] and Dalpat Abasaheb
Solunke v. B.S. Mahajan [(1990) 1 SCC 305, 309-
10: 1990 SCC (L&S) 80].''
[c] 2011 [6] SCC 597 [State of Himachal Pradesh and Others V.
Himachal Pradesh Vyavsayik Prishikshan kendra Sangh];-
''21. The High Court has lost sight of the fact
that education is a dynamic system and
courses/subjects have to keep changing with regard
to market demand, employability potential,
availability of infrastructure, etc. No institute can
have a legitimate right or expectation to run a
particular course forever and it is the pervasive
power and authority vested in the Government to
frame policy and guidelines for progressive and
legitimate growth of the society and create
balances in the arena inclusive of imparting
technical education from time to time. Inasmuch as
the institutions found fit were allowed to run other
courses except the three mentioned above, the
doctrine of legitimate expectation was not
disregarded by the State. Inasmuch as ultimately it
is the responsibility of the State to provide good
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education, training and employment, it is best
suited to frame a policy or either modify/alter a
decision depending on the circumstance based on
relevant and acceptable materials. The courts do
not substitute their views in the decision of the State
Government with regard to policy matters. In fact,
the court must refuse to sit as appellate authority or
super legislature to weigh the wisdom of legislation
or policy decision of the Government unless it runs
counter to the mandate of the Constitution.''
[d] 2009 [5] SCC 342 [Grand Kakatiya Sheraton Hotel and
Tower Employees and Workers Union Vs. Srinivasa Resorts ltd., and
others]:-
''67. It was argued by the learned counsel for
the appellant that there could not have been a
comparison between the provisions of the Payment
of Gratuity Act and the present provisions while
deciding the constitutionality. For this purpose, the
learned counsel relied on the law laid down by this
Court in State of M.P. v. G.C. Mandawar [AIR 1954
SC 493: (1955) 1 SCR 599] . The following
observations in that case were relied upon: (AIR p.
496, para 9)
“9. … Article 14 does not authorise the
striking down of a law of one State on the ground
that in contrast with a law of another State on the
same subject its provisions are discriminatory. Nor
does it contemplate a law of the Centre or of the
State dealing with similar subjects being held to be
unconstitutional by a process of comparative study
of the provisions of the two enactments. The sources
of authority for the two statutes being different,
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Article 14 can have no application.”
68. It may immediately be clarified that
though it is true that both the laws i.e. the Shops
Act and the Payment of Gratuity Act have been
passed validly under Entry 24 of List III of the
VIIth Schedule, it is incorrect to say that the High
Court has compared the two provisions. It is one
thing to refer to a provision and quite another to
compare it with the impugned provision.
69. The High Court has actually gone into
the concept of gratuity right from its inception and
has come to the conclusion that for earning the
gratuity, the employee does not have to contribute
anything, as in the case of a provident fund.
Gratuity is more or less a gratuitous payment by
the employer in consideration of long and faithful
service by the employee. The concept of gratuity
came to be developed firstly in the industrial
jurisprudence and was crystallised by the Central
legislation by way of an Act, where a provision of
five years of minimum service was made for an
employee to be entitled for payment of gratuity.
However, as has been held in Bakshish
Singh v. Darshan Engg. Works [(1994) 1 SCC 9 :
1994 SCC (L&S) 302 : (1994) 26 ATC 483] the
length of five years of service could not have been
reduced in an absurd manner to a minuscule
period of one year or even less than that. The High
Court, therefore, found fault that the basic concept
of gratuity was being abused by the reduction of
the required service to an almost non-existent level.
It cannot, therefore, be said that the High Court
compared the two provisions. This is apart from the
fact that the reduction to a period of six months was
already held to be unconstitutional in Suryapet
Coop. Mktg. Society Ltd. v. Munsif
Magistrate [(1972) 2 An LT 163] which judgment
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had attained finality.
70. The High Court found that instead of
remedying the defects pointed out in Suryapet
Coop. Mktg. Society Ltd. v. Munsif
Magistrate [(1972) 2 An LT 163] a cosmetic change
was made by raising the period of six months to
one year. We are, therefore, unable to accept the
submission of the learned counsel for the appellant
that the High Court proceeded on to decide the
constitutionality on the basis of a comparison. We
do not, therefore, see how the aforementioned
judgment in State of M.P. v. G.C. Mandawar [AIR
1954 SC 493: (1955) 1 SCR 599] can be of any
application and help to the present case.''
[e] AIR 2011 SC 3470 [State of Tamil nadu and others Vs.
k.Shyam Sunder and others] :-
''50. In Ajay Hasia v. Khalid Mujib
Sehravardi [(1981) 1 SCC 722 : 1981 SCC (L&S)
258 : AIR 1981 SC 487] , this Court held that
Article 14 strikes at arbitrariness because an action
that is arbitrary, must necessarily involve negation
of equality. Whenever therefore, there is
arbitrariness in State action, whether it be of
the legislature or of the executive, Article 14
immediately springs into action and strikes down
such State action. (See also E.P. Royappa v. State
of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 :
AIR 1974 SC 555] and Maneka Gandhi v. Union of
India [(1978) 1 SCC 248 : AIR 1978 SC 597] .)
52. In Bombay Dyeing & Mfg. Co. Ltd.
(3) v. Bombay Environmental Action Group [(2006)
3 SCC 434 : AIR 2006 SC 1489] , this Court held
that: (SCC p. 511, para 205)
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“205. Arbitrariness on the part of the
legislature so as to make the legislation violative of
Article 14 of the Constitution should ordinarily be
manifest arbitrariness.”
53. In Bidhannagar (Salt Lake) Welfare
Assn. v. Central Valuation Board [(2007) 6 SCC
668 : AIR 2007 SC 2276] and Grand Kakatiya
Sheraton Hotel and Towers Employees and
Workers Union v. Srinivasa Resorts Ltd. [(2009) 5
SCC 342 : (2009) 2 SCC (L&S) 10 : AIR 2009 SC
2337] , this Court held that a law cannot be
declared ultra vires on the ground of hardship but
can be done so on the ground of total
unreasonableness. The legislation can be
questioned as arbitrary and ultra vires under
Article 14. However, to declare an Act ultra vires
under Article 14, the Court must be satisfied in
respect of substantive unreasonableness in the
statute itself.''
[f] AIR 2006 SC 1489 [Bombay Dyeing and mfg. Co. Ltd., Vs.
Bombay Environmental Action Group and others]:-
''204. For the purpose of striking down a
legislation on the ground of infraction of the
constitutional provisions, the court would not
exercise its jurisdiction only because the
recommendations of the Committees had not been
accepted in toto but would do so inter alia on the
ground as to whether they otherwise violate the
constitutional principles.
205. Arbitrariness on the part of the
legislature so as to make the legislation violative of
Article 14 of the Constitution should ordinarily be
manifest arbitrariness. What would be arbitrary
exercise of legislative power would depend upon
the provisions of the statute vis-à-vis the purpose
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and object thereof. (See Sharma Transport v. Govt.
of A.P. [(2002) 2 SCC 188] , SCC para 25, Khoday
Distilleries Ltd. v. State of Karnataka [(1996) 10
SCC 304] and Otis Elevator Employees' Union S.
Reg. v. Union of India [(2003) 12 SCC 68 : 2004
SCC (L&S) 988] , SCC para 17.)''
[g] 2015 [8] SCC 129 [P.Suseela and Others V. University
Grants Commission and Others]
''16. Similar is the case on facts here. A
vested right would arise only if any of the
appellants before us had actually been appointed
to the post of Lecturer/Assistant Professors. Till
that date, there is no vested right in any of the
appellants. At the highest, the appellants could only
contend that they have a right to be considered for
the post of Lecturer/Assistant Professor. This right
is always subject to minimum eligibility conditions,
and till such time as the appellants are appointed,
different conditions may be laid down at different
times. Merely because an additional eligibility
condition in the form of a NET test is laid down, it
does not mean that any vested right of the
appellants is affected, nor does it mean that the
regulation laying down such minimum eligibility
condition would be retrospective in operation. Such
condition would only be prospective as it would
apply only at the stage of appointment. It is clear,
therefore, that the contentions of the private
appellants before us must fail.
...
19. The doctrine of legitimate expectation
has been dealt with in two judgments of this Court
as follows: in Union of India v. International
Trading Co. [(2003) 5 SCC 437] , it was held:
(SCC p. 447, para 23).
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“23. Reasonableness of restriction is
to be determined in an objective manner
and from the standpoint of interests of the
general public and not from the standpoint
of the interests of persons upon whom the
restrictions have been imposed or upon
abstract consideration. A restriction cannot
be said to be unreasonable merely because
in a given case, it operates harshly. In
determining whether there is any unfairness
involved; the nature of the right alleged to
have been infringed, the underlying
purpose of the restriction imposed, the
extent and urgency of the evil sought to be
remedied thereby, the disproportion of the
imposition, the prevailing condition at the
relevant time, enter into judicial verdict.
The reasonableness of the legitimate
expectation has to be determined with
respect to the circumstances relating to the
trade or business in question. Canalisation
of a particular business in favour of even a
specified individual is reasonable where the
interests of the country are concerned or
where the business affects the economy of
the country. (See Parbhani Transport Coop.
Society Ltd. v. RTA [AIR 1960 SC 801 :
(1960) 62 BOM LR 521] , Shree Meenakshi
Mills Ltd. v. Union of India [(1974) 1 SCC
468] , Hari Chand Sarda v. Mizo District
Council [AIR 1967 SC 829] and Krishnan
Kakkanth v. State of Kerala [(1997) 9 SCC
495] .)”
20. Similarly, in Sethi Auto Service
Station v. DDA [(2009) 1 SCC 180] , it was held:
(SCC p. 191, para 33)
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“33. It is well settled that the concept of
legitimate expectation has no role to play
where the State action is as a public policy
or in the public interest unless the action
taken amounts to an abuse of power. The
court must not usurp the discretion of the
public authority which is empowered to take
the decisions under law and the court is
expected to apply an objective standard
which leaves to the deciding authority the
full range of choice which the legislature is
presumed to have intended. Even in a case
where the decision is left entirely to the
discretion of the deciding authority without
any such legal bounds and if the decision is
taken fairly and objectively, the court will
not interfere on the ground of procedural
fairness to a person whose interest based on
legitimate expectation might be affected.
Therefore, a legitimate expectation can at
the most be one of the grounds which may
give rise to judicial review but the granting
of relief is very much limited.
(Vide Hindustan Development
Corpn. [Union of India v. Hindustan
Development Corpn., (1993) 3 SCC 499] )”
21. In UGC v. Sadhana Chaudhary [(1996)
10 SCC 536 : 1996 SCC (L&S) 1431] , it is true
that in para 22, some of the very appellants before
us are referred to as having a legitimate
expectation in the matter of appointment to the post
of Lecturer in universities/colleges, but that case
would have no direct application here. There a
challenge was made to exemptions granted at that
time to PhD holders and MPhil degree-holders. It
was found that such exemption had a rational
relation to the object sought to be achieved at that
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point of time, being based on an intelligible
differentia. An Article 14 challenge to the said
exemption was, therefore, repelled. Even assuming
that the said judgment would continue to apply
even after the 2009 Regulations, a legitimate
expectation must always yield to the larger public
interest. The larger public interest in the present
case is nothing less than having highly qualified
Assistant Professors to teach in UGC institutions.
Even if, therefore, the private appellants before us
had a legitimate expectation that given the fact that
UGC granted them an exemption from NET and
continued to state that such exemption should
continue to be granted even after the Government
direction of 12-11-2008 would have to yield to the
larger public interest of selection of the most
meritorious among candidates to teach in
institutions governed by the UGC Act.''
[h] 2018 [3] SCC 329 [State of Madhya Pradesh and Others V.
Manoj Sharma and Others]
''16. It has to be noticed that the amendment
as made in the minimum qualification, now
provides that the exemption from NET shall be
given to the PhD degree-holders, only when PhD
degree has been awarded to them in compliance
with the 2009 Regulations of UGC (Minimum
Standards and Procedure). The above provision
thus, made it mandatory that for Lecturers NET
qualification is necessary and exemption shall be
granted to those PhD degree-holders who have
obtained PhD degree in accordance with the 2009
Regulations of UGC (Minimum Standards and
Procedure). The purpose and object of the above
amendments in both the 2009 Regulations of UGC
(Minimum Standards and Procedure) as well as the
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2009 Regulations of UGC (Minimum Qualifications
for Appointment) is not far to seek. There has been
challenge to amendments made in the 2009
Regulations of UGC (Minimum Qualifications for
Appointment) insofar as it denied the benefit to
PhD degree-holders who had obtained PhD prior
to 11-7-2009. The writ petitions were filed in
different High Courts challenging the Regulations
on different grounds including that the Regulations
are arbitrary and violative of Article 14 which
discriminate the PhD degree-holders who have
obtained PhD degree prior to 11-7-2009 and those
who obtained the degree after 11-7-2009 in
accordance with the 2009 Regulations of UGC
(Minimum Standards and Procedure).
17. The challenge to the Regulations was
repelled by different High Courts whereas the
Allahabad High Court vide its judgment dated 6-4-
2012 in Ramesh Kumar Yadav v. University of
Allahabad [Ramesh Kumar Yadav v. University of
Allahabad, 2012 SCC OnLine All 667 : (2013) 4 All
LJ 635] has upheld the challenge. The appeals
were filed against the judgment of the Rajasthan
High Court [Ravindra Singh Shekhawat v. Union of
India, 2012 SCC OnLine Raj 2751 : (2013) 4 RLW
3094] , the Delhi High Court [All India
Researchers' Coordination Committee v. Union of
India, 2010 SCC OnLine Del 4304 : (2011) 121
DRJ 297] and the Madras High Court [P.
Suseela v. UGC, 2010 SCC OnLine Mad 6041 :
(2011) 2 CTC 593] by the candidates whose writ
petitions were dismissed as well as against the
judgment of the Allahabad High Court dated 6-4-
2012 [Ramesh Kumar Yadav v. University of
Allahabad, 2012 SCC OnLine All 667 : (2013) 4 All
LJ 635] , upholding the contention of the
candidates. This Court decided all the appeals by
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its judgment in P. Suseela v. UGC [P.
Suseela v. UGC, (2015) 8 SCC 129 : (2015) 2 SCC
(L&S) 633 : 7 SCEC 333] . This Court upheld the
judgment of the High Courts of Rajasthan
[Ravindra Singh Shekhawat v. Union of India, 2012
SCC OnLine Raj 2751 : (2013) 4 RLW 3094] ,
Madras [P. Suseela v. UGC, 2010 SCC OnLine
Mad 6041 : (2011) 2 CTC 593] and Delhi [All
India Researchers' Coordination
Committee v. Union of India, 2010 SCC OnLine Del
4304 : (2011) 121 DRJ 297] and set aside the
judgment of the Allahabad High Court dated 6-4-
2012 [Ramesh Kumar Yadav v. University of
Allahabad, 2012 SCC OnLine All 667 : (2013) 4 All
LJ 635] , upholding that the amendments made in
the 2009 Regulations of UGC (Minimum
Qualifications for Appointment) were valid and
there is a valid classification between the
candidates who have obtained degree prior to the
2009 Regulations of UGC (Minimum Standards
and Procedure) and those who obtained the degree
in accordance with the abovesaid Regulation.
18. Thus, rejecting the contention of the
private respondent, the following was laid down in
paras 16, 17 and 18: (P. Suseela case [P.
Suseela v. UGC, (2015) 8 SCC 129 : (2015) 2 SCC
(L&S) 633 : 7 SCEC 333] , SCC pp. 144-45)
“16. Similar is the case on facts here.
A vested right would arise only if any of the
appellants before us had actually been
appointed to the post of Lecturer/Assistant
Professors. Till that date, there is no vested
right in any of the appellants. At the
highest, the appellants could only contend
that they have a right to be considered for
the post of Lecturer/Assistant Professor.
This right is always subject to minimum
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eligibility conditions, and till such time as
the appellants are appointed, different
conditions may be laid down at different
times. Merely because an additional
eligibility condition in the form of a NET
test is laid down, it does not mean that any
vested right of the appellants is affected,
nor does it mean that the regulation laying
down such minimum eligibility condition
would be retrospective in operation. Such
condition would only be prospective as it
would apply only at the stage of
appointment. It is clear, therefore, that the
contentions of the private appellants before
us must fail.
17. One of the learned counsel for the
petitioners argued, based on the language
of the direction of the Central Government
dated 12-11-2008 that all that the
Government wanted UGC to do was to
“generally” prescribe NET as a
qualification. But this did not mean that
UGC had to prescribe this qualification
without providing for any exemption. We
are unable to accede to this argument for
the simple reason that the word “generally”
precedes the word “compulsory” and it is
clear that the language of the direction has
been followed both in letter and in spirit by
the UGC Regulations of 2009 and 2010.
18. The arguments based on Article 14
equally have to be rejected. It is clear that
the object of the directions of the Central
Government read with the UGC Regulations
of 2009/2010 are to maintain excellence in
standards of higher education. Keeping this
object in mind, a minimum eligibility
condition of passing the national eligibility
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test is laid down. True, there may have been
exemptions laid down by UGC in the past,
but the Central Government now as a matter
of policy feels that any exemption would
compromise the excellence of teaching
standards in
universities/colleges/institutions governed
by the UGC. Obviously, there is nothing
arbitrary or discriminatory in this — in fact
it is a core function of UGC to see that such
standards do not get diluted.”
19. Thus, from the above judgment, it is clear
that NET qualification is now minimum
qualification for appointment of Lecturer and
exemption granted to MPhil degree-holders has
been withdrawn and exemption is allowed only to
those PhD degree-holders who have obtained the
PhD degree in accordance with 11-7-2009
Regulations, namely, the 2009 Regulations of UGC
(Minimum Standards and Procedure). Although,
this aspect has not been noticed by the High Court
but since the learned Single Judge has directed the
consideration of the case of the writ petitioner on
the basis of MPhil degree which was obtained by
them by distance education mode prior to 2009, it
is necessary that their eligibility for the post be
examined taking into consideration the 2009
Regulations of UGC (Minimum Qualifications for
Appointment). The advertisement and selection for
Guest Lecturers having been conducted in the year
2012 when both the 2009 Regulations of UGC
(Minimum Standards and Procedure) and the 2009
Regulations of UGC (Minimum Qualifications for
Appointment) were applicable.''
[i] 2011 [3] SCC 436 [State of Orissa and Others Vs. Mamata
Mohanty] :-
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''29.Education is the systematic instruction,
schooling or training given to the young persons in
preparation for the work of life. It also connotes the
whole course of scholastic instruction which a
person has received. Education connotes the
process of training and developing the knowledge,
skill, mind and character of students by formal
schooling. The excellence of instruction provided
by an educational institution mainly depends
directly on the excellence of the teaching staff.
Therefore, unless they themselves possess a good
academic record/minimum qualifications
prescribed as an eligibility, it is beyond
imagination of anyone that standard of education
can be maintained/enhanced.
“18. … we have to be very strict in maintaining
high academic standards and maintaining
academic discipline and academic rigour if our
country is to progress.
30. … Democracy depends for its very life on a
high standard of general, vocational and
professional education. Dissemination of learning
with search for new knowledge with discipline all
round must be maintained at all costs.”
(Vide Lok Shikshana Trust v. CIT [(1976) 1
SCC 254 : 1976 SCC (Tax) 14 : AIR 1976 SC 10]
, Frank Anthony Public School Employees'
Assn. v. Union of India [(1986) 4 SCC 707 : (1987)
2 ATC 35 : AIR 1987 SC 311] , Osmania University
Teachers' Assn. v. State of A.P. [(1987) 4 SCC 671 :
AIR 1987 SC 2034] , SCC at p. 685, para 30
and Dr. Ambedkar Institute of Hotel Management,
Nutrition & Catering Technology v. Vaibhav Singh
Chauhan [(2009) 1 SCC 59] , SCC at p. 67, para
18.)
30. In Meera Massey (Dr.) v. Dr. S.R.
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Mehrotra [(1998) 3 SCC 88 : 1998 SCC (L&S) 730
: AIR 1998 SC 1153] this Court extensively quoted
the Report of the University Education Commission
i.e. Radhakrishnan Commission, wherein grave
concern was expressed observing that “there is
negligence in applying criteria of merit in the
selection” of teachers. The Court also quoted from
another Report of the Committee on Some Problems
of University Administration, 1964 (1967) as: (SCC
pp. 104-05, para 26)
“26. … ‘The most important factor in the field of
higher education is the type of person entrusted
with teaching. Teaching cannot be improved
without competent teachers. … The most critical
problem facing the universities is the dwindling
supply of good teachers. … The supply of the right
type of teachers assumes, therefore, a vital role in
the educational advancement of the country.’ ”
(emphasis in original)
31. The Court in Meera Massey [(1998) 3
SCC 88 : 1998 SCC (L&S) 730 : AIR 1998 SC
1153] further observed as under: (SCC p. 104,
para 24)
“24. University imparts education which lays
foundation of wisdom. Future hopes and aspiration
of the country depends on this education, hence
proper and disciplined functioning of the
educational institutions should be the hallmark. If
the laws and principles are eroded by such
institutions it not only pollutes its functioning,
deteriorating its standard but also exhibits to its
own students the wrong channel adopted. If that be
so, how could such institutions produce good
citizens? It is the educational institutions which are
the future hope of this country. They lay the seed
for the foundation of morality, ethics and
discipline. If there is any erosion or descending by
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those who control the activities all expectations and
hopes are destroyed.”
(emphasis added)
32. In Chandigarh Admn. v. Rajni
Vali [(2000) 2 SCC 42 : 2000 SCC (L&S) 247 : AIR
2000 SC 634] this Court observed as under: (SCC
p. 46, para 6)
“6. … It is a constitutional mandate that the
State shall ensure proper education to the students
on whom the future of the society depends. In line
with this principle, the State has enacted statutes
and framed rules and regulations to
control/regulate establishment and running of
private schools at different levels. The State
Government provides grant-in-aid to private
schools with a view to ensure smooth running of the
institution and to ensure that the standard of
teaching does not suffer on account of paucity of
funds. It needs no emphasis that appointment of
qualified and efficient teachers is a sine qua non
for maintaining high standards of teaching in any
educational institution.”
33. In view of the above, it is evident that
education is necessary to develop the personality of
a person as a whole and in totality as it provides
the process of training and acquiring the
knowledge, skills, developing mind and character
by formal schooling. Therefore, it is necessary to
maintain a high academic standard and academic
discipline along with academic rigour for the
progress of a nation. Democracy depends for its
own survival on a high standard of vocational and
professional education. Paucity of funds cannot be
a ground for the State not to provide quality
education to its future citizens. It is for this reason
that in order to maintain the standard of education
the State Government provides grant-in-aid to
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private schools to ensure the smooth running of the
institution so that the standard of teaching may not
suffer for want of funds.
(emphasis added)
34 [Ed.: Para 34 corrected vide Official
Corrigendum No. F.3/Ed.B.J./13/2011 dated 25-2-
2011.] . Article 21-A has been added by amending
our Constitution with a view to facilitate the
children to get proper and good quality education.
However, the quality of education would depend on
various factors but the most relevant of them is
excellence of teaching staff. In view thereof, quality
of teaching staff cannot be compromised. The
selection of the most suitable persons is essential in
order to maintain excellence and the standard of
teaching in the institution. It is not permissible for
the State that while controlling the education it may
impinge the standard of education. It is, in fact, for
this reason that norms of admission in institutions
have to be adhered to strictly. Admissions in mid-
academic sessions are not permitted to maintain
the excellence of education.
....
56. It is a settled legal proposition that
Article 14 is not meant to perpetuate illegality and
it does not envisage negative equality. Thus, even if
some other similarly situated persons have been
granted some benefit inadvertently or by mistake,
such order does not confer any legal right on the
petitioner to get the same relief. (Vide Chandigarh
Admn. v. Jagjit Singh [(1995) 1 SCC 745 : AIR
1995 SC 705] , Yogesh Kumar v. Govt. of NCT of
Delhi [(2003) 3 SCC 548 : 2003 SCC (L&S) 346 :
AIR 2003 SC 1241] , Anand Buttons Ltd. v. State of
Haryana [(2005) 9 SCC 164 : AIR 2005 SC 565]
, K.K. Bhalla v. State of M.P. [(2006) 3 SCC 581 :
AIR 2006 SC 898] , Krishan Bhatt v. State of
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J&K [(2008) 9 SCC 24 : (2008) 2 SCC (L&S) 783]
, Upendra Narayan Singh [(2009) 5 SCC 65 :
(2009) 1 SCC (L&S) 1019] and Union of
India v. Kartick Chandra Mondal [(2010) 2 SCC
422 : (2010) 1 SCC (L&S) 385 : AIR 2010 SC
3455] .)
57. This principle also applies to judicial
pronouncements. Once the court comes to the
conclusion that a wrong order has been passed, it
becomes the solemn duty of the court to rectify the
mistake rather than perpetuate the same. While
dealing with a similar issue, this Court in Hotel
Balaji v. State of A.P. [1993 Supp (4) SCC 536 :
AIR 1993 SC 1048] observed as under: (SCC p.
551, para 12)
“12. … ‘2. … To perpetuate an error is no heroism.
To rectify it is the compulsion of judicial
conscience. In this, we derive comfort and strength
from the wise and inspiring words of Justice
Bronson in Pierce v. Delameter [1 NY 3 (1847) :
A.M.Y. p. 18] at p. 18:
“a Judge ought to be wise enough to know that he
is fallible and, therefore, ever ready to learn: great
and honest enough to discard all mere pride of
opinion and follow truth wherever it may lead: and
courageous enough to acknowledge his errors”.’
[ As observed in Distributors (Baroda) (P)
Ltd. v. Union of India, (1986) 1 SCC 43, p. 46, para
2.] ”
(See also Ministry of Information & Broadcasting,
In re [(1995) 3 SCC 619] , Nirmal Jeet
Kaur v. State of M.P. [(2004) 7 SCC 558 : 2004
SCC (Cri) 1989] and Mayuram Subramanian
Srinivasan v. CBI [(2006) 5 SCC 752 : (2006) 3
SCC (Cri) 83 : AIR 2006 SC 2449] .)
58. We are fully alive of the object and
purpose of according recognition and affiliation to
educational institutions. It is the educational
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authorities of the State which grant recognition to a
Committee of Management for opening or running
an educational institution. Affiliation is granted by
the particular university or Board for undertaking
the examination of the students of that college for
awarding degrees and certificates. Therefore, while
granting the recognition and affiliation even for
non-governmental and non-aided private colleges,
it is mandatory to adhere to the conditions imposed
by them, which also include the minimum eligibility
for appointment of teaching staff. The authority at
the time of granting approval has to apply its mind
to find out whether a person possessing the
minimum eligibility has been appointed. In the
instant case, it appears to be a clear-cut case of
arbitrariness which cannot be approved.''
[j] AIR 2007 SC 1342 : 2007 [2] SCC 202 [Bar Council of India
Vs. Board of Management, Dayanand College of Law and Others]
''11. Rule 17(1) stipulates that no college after the
coming into force of the Rules shall impart
instruction in a course of study in law for enrolment
as an advocate unless its affiliation has been
approved by the Bar Council of India. Thus, though
the Bar Council of India may not have been
entrusted with direct control of legal education in
the sense in which the same is entrusted to a
university, still, the Bar Council of India retains
adequate power to control the course of studies in
law, the power of inspection, the power of
recognition of degrees and the power to deny
enrolment to law degree-holders, unless the
university from which they pass out is recognised
by the Bar Council of India.
...
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13. The aim of most of the students who enter
the law college, is to get enrolled as advocates and
practise law in the country. To do that, they
necessarily have to have a degree from a university
that is recognised by the Bar Council of India.
Therefore, the court, in a situation like the present
one, has to ask itself whether it could not
harmoniously construe the relevant provisions and
reach a conclusion consistent with the main aim of
seeking or imparting legal education. So
approached, nothing stands in the way of the court
coming to the conclusion that though under the
relevant statute of the University as amended,
theoretically it may be possible to appoint a Doctor
of Philosophy or a Doctor of Science as the
Principal of a law college, taking into account the
requirements of the Advocates Act, the Rules of the
Bar Council of India and the main purpose of legal
education, the court would be justified in holding
that as regards the post of the Principal of a law
college, it would be necessary for the proposed
incumbent also to satisfy the requirements of the
Rules of the Bar Council of India. Such a
harmonious understanding of the position
recognising the realities of the situation, would
justify the conclusion that a doctorate-holder in any
of the law subjects could alone be appointed as the
Principal of a law college. The High Court, in our
view, made an error in not trying to reconcile the
relevant provisions and in not making an attempt to
harmoniously construe the relevant provisions so
as to give efficacy to all of them. A harmonious
understanding could lead to the position that the
Principal of a law college has to be appointed after
a process of selection by the body constituted in
that behalf, under the University Act, but while
nominating from the list prepared, and while
appointing him, it must be borne in mind that he
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should fulfil the requirements of the Rules of the
Bar Council of India framed under the Advocates
Act and it be ensured that he holds doctorate in any
one of the branches of law taught in the law
college. We do not see anything in the University
Act or the Statutes framed thereunder, which stand
in the way of the adopting of such a course.
Therefore, when a request is made for selection of a
Principal of a law college, the university and the
Selection Committee has to ensure that applications
are invited from those who are qualified to be
Principals of a law college in terms of the Rules of
the Bar Council and from the list prepared, a
person possessing the requisite qualification, is
nominated and appointed as the Principal of a law
college.
14. It is clear from the decision of the
Constitution Bench in O.N. Mohindroo v. Bar
Council of Delhi [(1968) 2 SCR 709 : AIR 1968 SC
888] that in pith and substance, the Advocates Act
falls under Entries 77 and 78 of List I of the
Seventh Schedule. That apart, it is not necessary to
postulate a conflict of legislation in this case as we
have indicated earlier. It is true that under the
University Act, the selection of a Principal of a
college affiliated to the university concerned has
been left to the Higher Education Services
Commission and Respondent 5 was included in the
panel of selected candidates pursuant to a due
selection by that Commission. It is also true that
theoretically the State Government on the
recommendation of the Director of Higher
Education could appoint any one from that list as
Principal of any college including a law college.
But when concerned with the appointment of a
Principal of the law college, there cannot be any
difficulty either for the recommending authority or
for the State Government in recognising the fact
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that a person duly qualified in law is required to be
the Principal of that law college in the interests of
the students coming out of that college in the light
of the Advocates Act, 1961 and the Rules framed by
the Bar Council of India governing enrollment of
advocates and their practice. It must be the
endeavour of the State and the recommending
authority to ensure that the students coming out of
the college are not put to any difficulty and to
ensure that their career as professionals is in no
way jeopardised by the action of the Government in
appointing a Principal of a law college. Therefore,
even while adhering to its process of selection of a
Principal, it behoves the State to ensure that the
appointment it makes is also consistent with the
Advocates Act and the Rules framed by the Bar
Council of India. It may not be correct to say that
the Bar Council of India is totally unconcerned with
the legal education, though primarily legal
education may also be within the province of the
universities. But, as the apex professional body, the
Bar Council of India is concerned with the
standards of the legal profession and the
equipment of those who seek entry into that
profession. The Bar Council of India is also thus
concerned with the legal education in the country.
Therefore, instead of taking a pedantic view of the
situation, the State Government and the
recommending authority are expected to ensure
that the requirement set down by the Bar Council of
India is also complied with. We are of the view that
the High Court was not correct in its approach in
postulating a conflict between the two laws and in
resolving it based on Article 254(2) of the
Constitution. Of course, the question whether the
assent to the Act would also extend to the statute
framed under it and that too to an amendment
made subsequent to the assent are questions that
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do not call for an answer in this case in the light of
the view we have adopted.''
The relevance and application of the above decisions relied on by the
learned Senior counsel will be considered after adverting to all the
submissions, governing rules, legislative competence etc., towards the
end.
26 There were objections by the candidates who are challenging
the Notification contending that some of the candidates who have been
selected, are found to be qualified having M.L., degree in Law, but in
fact, they had obtained their Post Graduation degree in the relevant
subject through Distance Education mode. The issue whether the Post
Graduate Degree obtained through Distance Education is valid enough to
be appointed as a teaching faculty in the pre-law course or another
connected issue as to whether a cross degree obtained by the candidate is
valid for appointment as an Assistant Professor in the pre-law course or
not, is also to be taken up for consideration by this Court. This Court
during the course of hearing of these writ petitions, was informed that
some candidates have done their Under Graduate Courses majoring in
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subjects other than the subject of their Post Graduate degree and
appeared to have responded to the Notification and found eligible for
appointment only on the basis of the Post Graduate qualification. These
two facets of the dispute would also be dealt with appropriately, after
answering the main controversy.
27 Mr.G.Sankaran, learned counsel appearing for some of the
candidates / writ petitioners, made the following submissions in support
of the qualification prescribed in the Notification in terms of the original
Government Orders dated 19.11.1985 and 20.12.2005. He began by
arguing that in the Government Law Colleges in the State of Tamil Nadu,
the syllabi have been formulated by adopting inter-disciplinary oriented
approach. According to him, there is a fine mixture of law and arts and
science subjects like Economics, Sociology etc. The learned counsel
vehemently submitted that the writ petitions need to be dismissed on the
short ground that the qualifications prescribed in the Notification alone is
under challenge and not the Rules. The learned counsel referred to the
said Notification, impugned herein, dated 18.07.2018 and drew the
attention of this Court to 'Note' below the qualification prescribed for
Assistant Professor pre-law course. According to the 'Note', the
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candidates who have obtained their Post Graduate degree in law through
Correspondence course, are not eligible to apply. All the candidates, he
represent, therefore are qualified in regular stream [M.L.] and not
obtained their Post Graduate degree in law through Correspondence.
28 According to the learned counsel, the Rules framed towards
prescription of qualification are framed under Article 309 of the
Constitution of India and the same have not been declared as illegal and
the selection which had already been concluded cannot be reopened at the
instance of the unqualified candidates. According to him, there are two
legal impediments for this Court to consider the case of challenge being
made to the qualifications, viz., one, the Rules are not challenged and
two, the selection was already over. He referred to the counter affidavit
on behalf of the State Government as well as the Director of Legal Studies
filed in WP.No.18328/2019 and particularly referred to paragraph No.12
which reads thus:-
''12.It is respectfully submitted that pursuant
to the Notification No.02/2018 dated 18.07.2018 of
the Teachers Recruitment Board, the petitioner
herein has applied for the post of Assistant
Professor Pre Law in the subject ''Economics''. It is
further submitted that the petitioner herein does
not possess an Under Graduate Degree in
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Economics but had obtained his Post Graduate
Degree in Economics directly through Distance
Education Mode without studying the Three Year
Under Graduate Course in Economics. Therefore,
he is not qualified for the post of Assistant
Professor [Pre Law] in the Government Law
Colleges as per Section 25 of the Tamil Nadu
Government Servants [Conditions of Service] Act,
2016 [Tamil Nadu Act 14 of 2016] which defines
that a Post Graduate Degree obtained after
completion of SSLC, Higher Secondary Course and
a Degree [10+2+3+2 or3] shall be recognized as
a Post Graduate Degree for appointment to the
State Services.''
29 According to him, the respondents on a mistaken impression
that the petitioner therein had obtained Post Graduate degree in
Economics directly through Distance Education mode without obtaining
the basic three year degree have come up with the above statement. This
statement in the counter affidavit is incorrect. The petitioner therein had
studied regular under graduate course and then had obtained Post
Graduate degree by Distance Education mode. In the said circumstances,
reference to Section 25 of the Tamil Nadu Government Servants
[Conditions of Service] Act, 2016, is misplaced and misconceived. That
section deals with cases where a degree being obtained from the Distance
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Education Mode or from the Open University without completion of
10+2+3 in the regular stream. Therefore, the very rejection of that
petitioner's candidature is on an erroneous ground and liable to be
interfered with by this Court.
30 He also referred to the educational qualification in
G.O.Ms.No.264 dated 20.12.2005. What is prescribed therein is M.A.
degree in the subject. In tune with the statutory requirement, the
Notification also prescribed only M.A., degree in the particular subject.
Therefore, what is to be seen is whether the candidate concerned has
obtained his M.A., degree after going through the regular Under Graduate
course or not and what subject he has studied in the Under Graduate
course. In any event, the statement in the counter affidavit for rejecting
the candidature of the writ petitioner therein, cannot be countenanced
both in law and on facts and therefore, the decision taken in that matter is
liable to be interfered with.
31 According to the learned counsel, the dispute started
pursuant to the order passed by the learned Judge of this Court in
WMP.Nos.22979 & 22980/2018 in WP.No.19534/2018 dated
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24.04.2019. It was an interim order, wherein the learned Judge has made
the following observations:-
''4.So also the candidates, who studied in the
correspondence courses and not attended the
regular colleges are not eligible for appointment to
the http://www.judis.nic.in 11 teaching faculty.
Teaching is a noble profession wherein the skill of
teaching is of paramount importance. The person
who has not studied in the regular course in the
college in the pattern prescribed by the UGC is
undoubtedly, not eligible for appointment to the
post of Assistant Professor (pre-law).
5.This apart, the Teachers Eligibility Test
and National Eligibility Test must have been
completed in the relevant subject for which the
appointments are to be made. The candidates who
have completed the TET and NET in the concerned
subjects alone to be appointed to the post of
Assistant Professor (pre-law) in Government Law
colleges and Law University. It is needless to state
that these are all the minimum educational
qualification prescribed by the University Grants
Commission in its regulations. It is a surprise that
the officials competent, who all are well versed with
the regulations of UGC as well as the State Act are
recruiting candidates, who all are not qualified in
accordance with the UGC regulations and as per
the State Act.''
Problem started therein which probably impelled the official respondents
from rejecting the candidature of the petitioner therein.
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32 In support of his various contentions, Mr.G.Sankaran,
learned counsel has placed reliance on the following decisions with
relevant paragraphs:-
[a] 1990 [1] SCC 411 [P.Mahendran and Others V. State of
Karnataka and Others] :-
''4. There is no dispute that under the
Recruitment Rules as well as under the
advertisement dated October 6, 1983 issued by the
Public Service Commission, holders of Diploma in
Mechanical Engineering were eligible for
appointment to the post of Motor Vehicle Inspectors
alongwith holders of Diploma in Automobile
Engineering. On receipt of the applications from
the candidates the Commission commenced the
process of selection as it scrutinised the
applications and issued letters for interview to the
respective candidates. In fact the Commission
commenced the interviews on August 1984 and it
had almost completed the process of selection but
the selection could not be completed on account of
interim orders issued by the High Court at the
instance of candidates seeking reservation for local
candidates. The Commission completed the
interviews of all the candidates and it finalised the
list of selected candidates by June 2, 1987 and the
result was published in the State Gazette on July
23, 1987. In addition to that the selected
candidates were intimated by the Commission by
separate letters. In view of these facts the sole
question for consideration is as to whether the
amendment made in the Rules on May 14, 1987
rendered the selection illegal. Admittedly the
amending Rules do not contain any provision
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enforcing the amended Rules with retrospective
effect. In the absence of any express provision
contained in the amending Rules it must be held to
be prospective in nature. The Rules which are
prospective in nature cannot take away or impair
the right of candidates holding Diploma in
Mechanical Engineering as on the date of making
appointment as well as on the date of scrutiny by
the Commission they were qualified for selection
and appointment. In fact the entire selection in the
normal course would have been finalised much
before the amendment of Rules, but for the interim
orders of the High Court. If there had been no
interim orders, the selected candidates would have
been appointed much before the amendment of
Rules. Since the process of selection had
commenced and it could not be completed on
account of the interim orders of the High Court, the
appellants' right to selection and appointment
could not be defeated by subsequent amendment of
Rules.
5. It is well settled rule of construction that
every statute or statutory rule is prospective unless
it is expressly or by necessary implication made to
have retrospective effect. Unless there are words in
the statute or in the Rules showing the intention to
affect existing rights the rule must be held to be
prospective. If a rule is expressed in language
which is fairly capable of either interpretation it
ought to be construed as prospective only. In the
absence of any express provision or necessary
intendment the rule cannot be given retrospective
effect except in matter of procedure. The amending
Rules of 1987 do not contain any express provision
giving the amendment retrospective effect nor there
is anything therein showing the necessary
intendment for enforcing the rule with retrospective
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effect. Since the amending Rules were not
retrospective, it could not adversely affect the right
of those candidates who were qualified for
selection and appointment on the date they applied
for the post, moreover as the process of selection
had already commenced when the amending Rules
came into force, the amended Rules could not affect
the existing rights of those candidates who were
being considered for selection as they possessed
the requisite qualifications prescribed by the Rules
before its amendment moreover construction of
amending Rules should be made in a reasonable
manner to avoid unnecessary hardship to those
who have no control over the subject matter.
...
11. We would now consider the view taken by
this Court in I.J. Divakar v. Government of Andhra
Pradesh [(1982) 3 SCC 341 : 1983 SCC (L&S) 14]
, as the Tribunal has placed strong reliance on the
observations made in that decision in setting aside
the selection made by the Public Service
Commission. It is necessary to ascertain the facts
involved in Divakar case [(1982) 3 SCC 341 : 1983
SCC (L&S) 14] . The Andhra Pradesh Public
Service Commission invited applications for filling
posts of Junior Engineers. In response to the
advertisement several candidates applied for the
said post and appeared at the viva voce test. While
the Commission was in process of finalising the
select list, the Government of Andhra Pradesh
issued a government order under the proviso to
Article 320(3) of the Constitution excluding the
posts of Junior Engineers from the purview of the
Public Service Commission. The government
regularised the services of all those who were
appointed by direct recruitment to the post of ad-
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hoc Junior Engineers and were continuing in
service on August 9, 1979 without subjecting them
to any test written or oral. The candidates who had
applied in response to the advertisement issued by
the Commission challenged validity of the
government order excluding the post of Junior
Engineers from the purview of the Commission and
also the validity of the decision by the government
to regularise the services of temporary employees.
Before this Court the government's power of
framing regulations excluding any post from the
purview of the Commission under the proviso to
Article 320(3) was conceded. It was, however,
urged that since the advertisement had been issued
by the Commission inviting applications for the
posts of Junior Engineers and as the Commission
was in process of selecting candidates the power
under the proviso to clause (3) of Article 320 of the
Constitution could not be exercised. This Court
rejected the contention with the following
observations: (SCC p. 344, para 4)
“The only contention urged was that at the time
when the advertisement was issued the post of
Junior Engineer was within the purview of the
Commission and even if at a later date the post was
withdrawn from the purview of the Commission it
could not have any retrospective effect. There is no
merit in this contention and we are broadly in
agreement with the view of the Tribunal that
inviting the applications for a post does not by
itself create any right to the post in the candidate
who in response to the advertisement makes an
application. He only offers himself to be considered
for the post. His application only makes him
eligible for being considered for the post. It does
not create any right in the candidate to the post.”
After making the aforesaid observations the court
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further held that the relevant service Rules
conferred power on the government to fill
emergently the vacancies to the post borne in the
cadre of service otherwise than in accordance with
the rules and therefore the government had power
to regularise temporary appointments made without
the consultation of the Public Service Commission.
Even after upholding the government order, the
court directed the Commission to consider the case
of all those candidates who had applied for the
post of Junior Engineers in response to the
advertisement issued by the Commission and to
finalise the select list on the basis of viva voce test
and to forward the same to the government. The
court further directed the government to make
appointments from the select list before any
outsider was appointed to the post of Junior
Engineers. Thus, the observations made by this
Court as quoted earlier were made in the special
facts and circumstances of the case, which do not
apply to the facts of the instant case. In Divakar
case [(1982) 3 SCC 341 : 1983 SCC (L&S) 14]
since the jurisdiction of the Public Service
Commission had been denuded by the government
in exercise of its constitutional power the
Commission had no jurisdiction to conduct
selection or prepare select list. In this background
the court made observations that a candidate
merely by making applications does not acquire
any right to the post. It is true that a candidate
does not get any right to the post by merely making
an application for the same, but a right is created
in his favour for being considered for the post in
accordance with the terms and conditions of the
advertisement and the existing recruitment rules. If
a candidate applies for a post in response to
advertisement issued by Public Service Commission
in accordance with recruitment Rules he acquires
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right to be considered for selection in accordance
with the then existing Rules. This right cannot be
affected by amendment of any rule unless the
amending rule is retrospective in nature. In the
instant case the Commission had acted in
accordance with the then existing rules and there is
no dispute that the appellants were eligible for
appointment, their selection was not in violation of
the recruitment Rules. The Tribunal in our opinion
was in error in setting aside the select list prepared
by the Commission.''
The above decision of the Apex Court laid down the principle that any
amendment to the Rule, will have prospective application and cannot be
retrospectively applied. According to the learned counsel, even if the
qualifications prescribed in the present selection were to be interfered
with, the selection which had already been concluded on the basis of the
existing qualifications, is not liable to be interfered with.
[b] 2009 [4] SCC 555 [Mohd. Sohrab Khan Vs. Aligarh
Muslim University and Others]. Learned counsel has drawn the
attention of this Court to paragraphs No.24, 25, 27 to 29 and 33 which
are extracted hereunder:-
''24. According to us, the Selection
Committee as also the University changed the rule
in the midstream which was not permissible. The
University can always have a person as a Lecturer
in a particular discipline that it desires to have, but
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the same must be specifically stated in the
advertisement itself, so that there is no confusion
and all persons who could be intending candidates,
should know as to what is the subject which the
person is required to teach and what essential
qualification the person must possess to be suitable
for making application for filling up the said post.
25. We are not disputing the fact that in the matter
of selection of candidates, opinion of the Selection
Committee should be final, but at the same time, the
Selection Committee cannot act arbitrarily and
cannot change the criteria/qualification in the
selection process during its midstream. Merajuddin
Ahmad did not possess a degree in Pure Chemistry
and therefore, it was rightly held by the High Court
that he did not possess the minimum qualification
required for filling up the post of Lecturer in
Chemistry, for Pure Chemistry and Industrial
Chemistry are two different subjects.
..
27. The Selection Committee during the stage of
selection, which is midway could not have changed
the essential qualification laid down in the
advertisement and at that stage held that a
Master's degree-holder in Industrial Chemistry
would be better suited for manning the said post
without there being any specific advertisement in
that regard. The very fact that the University is now
manning the said post by having a person from the
discipline of Pure Chemistry also leads to the
conclusion that the said post at that stage when it
was advertised was meant to be filled up by a
person belonging to Pure Chemistry stream.
28. In A.P. Public Service Commission v. B.
Swapna [(2005) 4 SCC 154 : 2005 SCC (L&S) 452]
, at para 14 it was held by this Court that norms of
selection cannot be altered after commencement of
selection process and the rules regarding
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qualification for appointment, if amended, during
continuation of the process of selection do not
affect the same.
29. Further at para 15 of B. Swapna case% [(2005)
4 SCC 154 : 2005 SCC (L&S) 452] it was held that
the power to relax the eligibility condition, if any,
to the selection must be clearly spelt out and cannot
be otherwise exercised. The said observations are
extracted herein below: (SCC pp. 159-60, paras 14-
15)
“14. The High Court has committed an
error in holding that the amended rule was
operative. As has been fairly conceded by
learned counsel for Respondent 1 applicant
it was the unamended rule which was
applicable. Once a process of selection
starts, the prescribed selection criteria
cannot be changed. The logic behind the
same is based on fair play. A person who
did not apply because a certain criterion
e.g. minimum percentage of marks can make
a legitimate grievance, in case the same is
lowered, that he could have applied
because he possessed the said percentage.
Rules regarding qualification for
appointment if amended during continuance
of the process of selection do not affect the
same. That is because every statute or
statutory rule is prospective unless it is
expressly or by necessary implication made
to have retrospective effect. Unless there
are words in the statute or in the rules
showing the intention to affect existing
rights the rule must be held to be
prospective. If the rule is expressed in a
language which is fairly capable of either
interpretation it ought to be considered as
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prospective only. (See P.
Mahendran v. State of Karnataka [(1990) 1
SCC 411 : 1990 SCC (L&S) 163 : (1990) 12
ATC 727] and Gopal Krushna
Rath v. M.A.A. Baig [(1999) 1 SCC 544 :
1999 SCC (L&S) 325] .)
15. Another aspect which this Court has
highlighted is scope for relaxation of
norms. Although the Court must look with
respect upon the performance of duties by
experts in the respective fields, it cannot
abdicate its functions of ushering in a
society based on the rule of law. Once it is
most satisfactorily established that the
Selection Committee did not have the power
to relax essential qualification, the entire
process of selection so far as the selected
candidate is concerned gets vitiated. In P.K.
Ramachandra Iyer v. Union of
India [(1984) 2 SCC 141 : 1984 SCC (L&S)
214] this Court held that once it is
established that there is no power to relax
essential qualification, the entire process of
selection of the candidate was in
contravention of the established norms
prescribed by advertisement. The power to
relax must be clearly spelt out and cannot
otherwise be exercised.”
...
33. We, therefore, uphold the order passed
by the High Court giving liberty to the University to
lay down the qualification necessary for filling up
the aforesaid post. The University shall now
advertise the said post by laying down exact
essential qualification indicating the particular
subject and subjects-stream which is required to be
possessed for making an application to fill up the
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said post and therefore proceed to appoint a
Lecturer suitable for the aforesaid post.''
The above decision was primarily relied upon in order to emphasis the
legal position that the Selection Committee cannot state the criteria /
qualification in the selection process during its midstream. In this case,
the challenge itself is post selection and any challenge to the in
qualification or removal of existing qualifications, can be applied only
prospectively.
[c] 2011 [4] SCC 606 [Visveswaraiah Technological
University and Another Vs. Krishnendu Halder and Others]. The
following paragraphs were relied upon by the learned counsel:-
''14. The respondents (colleges and the
students) submitted that in that particular year
(2007-2008) nearly 5000 engineering seats
remained unfilled. They contended that whenever a
large number of seats remained unfilled, on
account of non-availability of adequate candidates,
paras 41(v) and (vi) of Adhiyaman [(1995) 4 SCC
104] would come into play and automatically the
lower minimum standards prescribed
by AICTE alone would apply. This contention is
liable to be rejected in view of the principles laid
down in the Constitution Bench decision in Preeti
Srivastava (Dr.) [(1999) 7 SCC 120] and the
decision of the larger Bench in S.V.
Bratheep [(2004) 4 SCC 513] which explains the
observations in Adhiyaman [(1995) 4 SCC 104] in
the correct perspective. We summarise below the
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position, emerging from these decisions:
(i) While prescribing the eligibility criteria
for admission to institutions of higher education,
the State/University cannot adversely affect the
standards laid down by the central body/AICTE. The
term “adversely affect the standards” refers to
lowering of the norms laid down by the central
body/AICTE. Prescribing higher standards for
admission by laying down qualifications in
addition to or higher than those prescribed
by AICTE, consistent with the object of promoting
higher standards and excellence in higher
education, will not be considered as adversely
affecting the standards laid down by the central
body/AICTE.
(ii) The observation in para 41(vi)
of Adhiyaman [(1995) 4 SCC 104] to the effect that
where seats remain unfilled, the State authorities
cannot deny admission to any student satisfying the
minimum standards laid down by AICTE, even
though he is not qualified according to its
standards, is not good law.
..
17. No student or college, in the teeth of the
existing and prevalent rules of the State and the
University can say that such rules should be
ignored, whenever there are unfilled vacancies in
colleges. In fact the State/University, may, in spite
of vacancies, continue with the higher eligibility
criteria to maintain better standards of higher
education in the State or in the colleges affiliated to
the University. Determination of such standards,
being part of the academic policy of the University,
are beyond the purview of judicial review, unless it
is established that such standards are arbitrary or
“adversely affect” the standards, if any, fixed by
the central body under a Central enactment. The
order of the Division Bench is therefore
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unsustainable.''
In the above case, the Apex Court has held that even in the case of
unfilled vacancies, after conclusion of the selection, there cannot be any
relaxation in the qualification in order to fill up the vacancies. The State
or the University in spite of vacancies, to continue with higher eligibility
criteria to maintain better standards of higher education.
[d] 2019 [6] SCC 362 [Maharashtra Public Service
Commission through its Secretary Vs. Sandeep Sriram Warade and
Others]. This Court's attention has been drawn to paragraphs No.9 and
10, which are extracted hereunder:-
''9. The essential qualifications for
appointment to a post are for the employer to
decide. The employer may prescribe additional or
desirable qualifications, including any grant of
preference. It is the employer who is best suited to
decide the requirements a candidate must possess
according to the needs of the employer and the
nature of work. The court cannot lay down the
conditions of eligibility, much less can it delve into
the issue with regard to desirable qualifications
being on a par with the essential eligibility by an
interpretive re-writing of the advertisement.
Questions of equivalence will also fall outside the
domain of judicial review. If the language of the
advertisement and the rules are clear, the court
cannot sit in judgment over the same. If there is an
ambiguity in the advertisement or it is contrary to
any rules or law the matter has to go back to the
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appointing authority after appropriate orders, to
proceed in accordance with law. In no case can the
court, in the garb of judicial review, sit in the chair
of the appointing authority to decide what is best
for the employer and interpret the conditions of the
advertisement contrary to the plain language of the
same.
10. The fact that an expert committee may
have been constituted and which examined the
documents before calling the candidates for
interview cannot operate as an estoppel against the
clear terms of the advertisement to render an
ineligible candidate eligible for appointment.''
The above decision relates to the settled legal principle that essential
qualification for appointment to a post is for the employer to decide and it
is always open to the employer to prescribe additional or desirable
qualification.
33 The learned counsel, drawing support from the above
decisions, submitted that taking into the nature of the curriculum being
prescribed in the pre-law course to be taught in the Government Colleges
in the State of Tamil Nadu, additional qualifications have been
prescribed, viz., Masters Degree in Law and enrollment as an advocate.
If it is not to be construed as higher qualification, it can at least be
construed as an additional essential qualification. The learned counsel,
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lastly relied on the decision of the latest Apex Court decision reported in
2021 [2] SCC 564 [A.P.J.Abdul Kalam Technological University and
Another Vs. Jai Bharath College of Mangement and Engineering
Technology and Others]. This Court's attention has been drawn to
paragraphs No.47, 48, 54, 57 and 58:-
''47. That even the State Government can prescribe
higher standards than those prescribed
by AICTE was recognised by a three-member Bench
of this Court in State of T.N. v. S.V. Bratheep [State
of T.N. v. S.V. Bratheep, (2004) 4 SCC 513 : 2
SCEC 547] . This principle was later applied in the
case of universities in Visveswaraiah Technological
University v. Krishnendu Halder [Visveswaraiah
Technological University v. Krishnendu Halder,
(2011) 4 SCC 606 : 4 SCEC 148] where this Court
considered the previous decisions and summarised
the legal position emerging therefrom as follows:
(Visveswaraiah Technological University
case [Visveswaraiah Technological
University v. Krishnendu Halder, (2011) 4 SCC 606
: 4 SCEC 148] , SCC pp. 614-15, para 14).
“14. … (i) While prescribing the eligibility
criteria for admission to institutions of
higher education, the State/University
cannot adversely affect the standards laid
down by the Central Body/AICTE. The term
“adversely affect the standards” refers to
lowering of the norms laid down by the
Central Body/AICTE. Prescribing higher
standards for admission by laying down
qualifications in addition to or higher than
those prescribed by AICTE, consistent with
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the object of promoting higher standards
and excellence in higher education, will not
be considered as adversely affecting the
standards laid down by the Central
Body/AICTE.
(ii) The observation in para 41(vi)
of Adhiyaman [State of T.N. v. Adhiyaman
Educational & Research Institute, (1995) 4
SCC 104] to the effect that where seats
remain unfilled, the State authorities cannot
deny admission to any student satisfying the
minimum standards laid down by AICTE,
even though he is not qualified according to
its standards, is not good law.
(iii) The fact that there are unfilled seats in
a particular year, does not mean that in that
year, the eligibility criteria fixed by the
State/University would cease to apply or
that the minimum eligibility criteria
suggested by AICTE alone would apply.
Unless and until the State or the University
chooses to modify the eligibility criteria
fixed by them, they will continue to apply in
spite of the fact that there are vacancies or
unfilled seats in any year. The main object
of prescribing eligibility criteria is not to
ensure that all seats in colleges are filled,
but to ensure that excellence in standards of
higher education is maintained.
(iv) The State/University (as also AICTE)
should periodically (at such intervals as
they deem fit) review the prescription of
eligibility criteria for admissions, keeping
in balance, the need to maintain excellence
and high standard in higher education on
the one hand, and the need to maintain a
healthy ratio between the total number of
seats available in the State and the number
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of students seeking admission, on the other.
If necessary, they may revise the eligibility
criteria so as to continue excellence in
education and at the same time being
realistic about the attainable standards of
marks in the qualifying examinations.”
48.Visveswaraiah [Visveswaraiah
Technological University v. Krishnendu Halder,
(2011) 4 SCC 606 : 4 SCEC 148] principles were
reiterated in Mahatma Gandhi University v. Jikku
Paul [Mahatma Gandhi University v. Jikku Paul,
(2011) 15 SCC 242 : 6 SCEC 18] . The legal
position summarised in para 14 of the Report
in Visveswaraiah [Visveswaraiah Technological
University v. Krishnendu Halder, (2011) 4 SCC 606
: 4 SCEC 148] (extracted above) were quoted with
approval by the Constitution Bench in Modern
Dental College & Research Centre v. State of
M.P. [Modern Dental College & Research
Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC
1] In Modern Dental College [Modern Dental
College & Research Centre v. State of M.P., (2016)
7 SCC 353 : 7 SCEC 1] , Issue IV framed for
consideration by the Constitution Bench (as
reflected in the opinion of the majority) was as to
“whether the legislation in question was beyond the
legislative competence of the State of Madhya
Pradesh”. While answering this issue, the opinion
of the majority was to the effect:
48.1. That the decision in Preeti
Srivastava v. State of M.P. [Preeti
Srivastava v. State of M.P., (1999) 7 SCC 120 : 1
SCEC 742] did not exclude the role of the States
altogether from admissions.
48.2. That the observations in Bharati
Vidyapeeth v. State of Maharashtra [Bharati
Vidyapeeth v. State of Maharashtra, (2004) 11 SCC
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755 : 2 SCEC 535] as though the entire gamut of
admissions was covered by Entry 66 of List I, has to
be overruled.
48.3. In the concurring and supplementing
opinion rendered by R. Banumathi, J., in Modern
Dental College [Modern Dental College &
Research Centre v. State of M.P., (2016) 7 SCC 353
: 7 SCEC 1] , the legal position enunciated
in Visveswaraiah [Visveswaraiah Technological
University v. Krishnendu Halder, (2011) 4 SCC 606
: 4 SCEC 148] were extracted and followed.
...
54. Quite unfortunately AICTE has filed a
counter-affidavit before this Court supporting the
case of the first respondent College and branding
the fixation of additional norms and conditions by
the University as unwarranted. Such a stand on the
part of AICTE has compelled us to take note of
certain developments that have taken place after
2012 on AICTE front.
..
57. Though AICTE has reserved to itself the
power to conduct inspections and take penal action
against colleges for false declarations, such penal
action does not mean anything and does not serve
any purpose for the students who get admitted to
colleges which have necessary infrastructure only
on paper and not on site. The Regulations of
the AICTE are silent as to how the students will get
compensated, when penal action is taken against
colleges which host false information online in their
applications to AICTE. Ultimately, it is the
universities which are obliged to issue degrees and
whose reputation is inextricably intertwined with
the fate and performance of the students, that may
have to face the music and hence their role cannot
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be belittled. Today, even the universities are being
ranked according to the quality of standards
maintained by them. The Ministry of Human
Resources Development of the Government of India
launched an initiative in September 2015, known as
National Institutional Ranking Framework
(“NIRF”), for ranking institutions including
universities in India. The ranking is based on
certain parameters such as:
(i) Teaching, learning and resources;
(ii) Research and professional practice;
(iii) Graduation outcomes;
(iv) Outreach and inclusivity; and
(v) Peer perception.
No State run university can afford to have a
laid-back attitude today, when their own
performance is being measured by international
standards. Therefore, the power of the universities
to prescribe enhanced norms and standards,
cannot be doubted.
58. In such circumstances, we are of the
considered view that the view taken by the Kerala
High Court in paras 33 to 35 of the impugned
judgment [Jai Bharath College of Management &
Engg. Technology v. State of Kerala, 2020 SCC
OnLine Ker 4034] on Issue 2, is unsustainable. At
the cost of repetition, we point out that while
universities cannot dilute the standards prescribed
by AICTE, they certainly have the power to stipulate
enhanced norms and standards.''
In the detailed judgment, the Apex Court has ultimately held inter-alia
that the University or the State can certainly have the power to stipulate
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enhanced norms and standards. The qualifications as prescribed by UGC
or any other Regulating Body has to be followed as the minimum
standards, but prescription of an additional higher qualification is always
rest with the employer concerned which is ultimately held to be valid by
the Apex Court.
34 Drawing cumulative support from the above decisions, the
learned counsel submitted that unless the qualifications are unreasonable
and arbitrary having no nexus to the object which are sought to be
achieved, the same is not liable to be interfered with by this Court. He
also submitted that in a policy matter where a conscious decision has
been taken by the Government to prescribe the qualifications, after taking
into consideration, the nature of subjects being taught in the pre-law
courses and also the job assignment and the teaching scope as provided
and such policy decision is not open for interference of this Court.
35 Mr.S.Prabakaran, learned Senior counsel chipped in with his
arguments saying that the qualifications as prescribed for the Government
Law Colleges is a time tested qualification since 1985 and 2005 and
therefore, the same does not call for any interference. The learned Senior
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counsel also referred to the syllabus as prescribed by the State
Government. According to him, the syllabus as prescribed, required the
prescribed qualifications and he also emphasized that the qualifications
cannot be changed after the selection was over. As far as the
correspondence course degree is concerned, the learned Senior counsel
referred to the Notification and the Note appended therein stating that
correspondence degree in Law was not acceptable. The learned Senior
counsel, in substance supported the case of Mr.G.Sankaran and
Mr.R.Singaravelan, learned counsels.
36 Mr.S.R.Ragunathan, learned counsel appearing for the BCI,
at the outset, submitted that the stand of BCI is very clear, viz., for
teachers post in pre-law courses, no law qualification is required at all.
According to the learned counsel, all over the country, no such
qualification has been prescribed by any other
States/Universities/Colleges. The qualifications of M.L.Degree and
enrollment as advocate, are prescribed peculiarly only in the State of
Tamil Nadu, that too, only for the Government run Law Colleges. Even
the State Ambedkar Law Univeristy and other Colleges affiliated to the
University, do not prescribe such qualifications for appointment of
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teachers to take pre-law courses.
37 The learned counsel also concurred with the submission that
as far as teachers in the pre-law courses, they are required to take
minimum 16 hours a week in terms of the UGC Regulations. At the same
time, it is not desirable to have part-time faculty for taking pre-law
courses as the same would dilute the standards of legal education. In
facts, BCI insisted that there should be full time faculty in order maintain
the standards of legal education in the country. He also relied on Rule 17
of the Rules of Legal Education which insisted on full time faculty
members in each Centre of Legal Education to teach each subject for all
points of time for running the courses. He would submit that the
contention on behalf of Mr.R.Singaravelan, learned Senior counsel on the
aspect of lack of adequate hours of work for full time pre-law lecturers in
all Centres, if they were to be engaged, he would submit that such issues
are entirely within the internal management of the University or the State.
It is incumbent upon the State Government or the Univeristy to device
programmes for full time employment of pre-law course Assistant
Professor. Any other arrangement like employment of part time faculty
would certainly dilute the standards of legal education and that is
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impermissible in terms of the Rules framed by the BCI and the UGC
regulations.
38 The learned counsel, more importantly would submit that the
source of laying down the controversial policy decisions, viz.,
G.O.Ms.No.1349 dated 19.11.1985 and G.O.Ms.No.264 dated
20.12.2005, are per se unconstitutional and to be declared as void ab
initio. In this regard, he would submit that the prescription of
qualification by the State suffers from lack of legislative competence. In
order to bolster his argument as above, the learned counsel would draw
attention of this Court to Seventh Schedule in the Constitution of India.
He would draw reference to Entry 25 in Concurrence List – III, which
reads as under:-
''25:- Education, including technical
education, medical education and Universities,
subject to the provisions of entries 63, 64, 65 and
66 of List I : Vocational and Technical training of
labour.''
He also referred to Entry 66 of the Union List – I in the same Schedule,
which reads thus:-
''Entry 66:-Co-ordination and determination
of standards in institutions for higher education or
research and scientific and technical institutions.''
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As per this Entry, Section 7 [1][h] was incorporated in the Advocates'
Act, 1961. According to the said provision, the power is given to the BCI
to promote legal education and lay down standard for legal education in
consultation with the Universities in India imparting such education and
the State Bar Councils. In terms of the above provision, the Bar Council
alone is entitled to prescribe qualification in the field of legal education,
not even the UGC.
39 The learned counsel would thereafter refer to the Rules of
Legal Education given in Part IV of the BCI Rules. He would assert that
the BCI has not prescribed the qualification of M.L., or enrollment as
advocate for teaching faculty of pre-law courses. In the absence of any
such prescription by the competent Body, viz., the BCI, which has the
exclusive domain over such matters, the State Government laying down
unconnected qualifications, is unwarranted and also contrary to the Legal
Education Rules and to the legal principles laid down by the Apex Court
holding that BCI has the predominant say in the prescription of standards
of legal education, including qualifications.
40 In regard to the submission of legislative competence, the
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learned counsel would elaborate that though the education is a subject
included in the Concurrent List, a specific entry is made [Entry 66] in the
Union List under Seventh Schedule of the Constitution of India. The
same alone will prevail in terms of the scheme of the Constitution, by
applying Doctrine of Pith and Substance. The prescription of different
qualifications is therefore are contrary to the qualifications laid down by
the BCI. Any action taken not in terms of Entry 66, tracing the power to
Section 7[1][h] of the Advocates' Act, 1961, has to be necessarily
declared as unconstitutional, illegal as they repugnant to the Central
legislation.
41 Regarding the principal role of the BCI in the matters of
laying down the norms and qualifications for the legal education in the
country, the learned counsel would refer to a decision reported in 2007
[2] SCC 202 [Bar Council of India V. Board of Management,
Dayanand College of Law and Others]. Paragraph No.14 of the said
decision has been referred to which reads thus:-
''14.It is clear from the decision of the
Constitution Bench in O.N. Mohindroo vs. The Bar
Council of Delhi & Ors. (supra) that in pith and
substance, the Advocates Act falls under Entries 77
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and 78 of List I of the Seventh Schedule. That
apart, it is not necessary to postulate a conflict of
legislation in this case as we have indicated earlier.
It is true that under the University Act, the selection
of a Principal of a College affiliated to the
concerned University has been left to a Higher
Education Services Commission and respondent
No. 5 was included in the panel of selected
candidates pursuant to a due selection by that
Commission. It is also true that theoretically the
State Government on the recommendation of the
Director of Higher Education could appoint any
one from that list as Principal of any College
including a Law College. But when concerned with
the appointment of a Principal of the Law College,
there cannot be any difficulty either in the
Recommending Authority or in the State
Government recognizing the fact that a person duly
qualified in law is required to be the Principal of
that Law College in the interests of the students
coming out of that College in the light of the
Advocates Act, 1961 and the rules framed by the
Bar Council of India governing enrolment of
Advocates and their practice. It must be the
endeavour of the State and the Recommending
Authority to ensure that the students coming out of
the College are not put to any difficulty and to
ensure that their career as professionals is in no
way jeopardized by the action of the Government in
appointing a Principal to a Law College. Therefore,
even while adhering to its process of selection of a
Principal, it behoves the State to ensure that the
appointment it makes is also consistent with the
Advocates Act and the rules framed by the Bar
Council of India. It may not be correct to say that
the Bar Council of India is totally unconcerned with
the legal education, though primarily legal
education may also be within the province of
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Universities. But, as the apex professional body,
the Bar Council of India is concerned with the
standards of the legal profession and the
equipment of those who seek entry into that
profession. The Bar Council of India is also thus
concerned with the legal education in the country.
Therefore, instead of taking a pedantic view of the
situation, the State Government and the
Recommending Authority are expected to ensure
that the requirement set down by the Bar Council of
India is also complied with. We are of the view that
the High Court was not correct in its approach in
postulating a conflict between the two laws and in
resolving it based on Article 254(2) of the
Constitution. Of course, the question whether the
assent to the Act would also extend to the statute
framed under it and that too to an amendment
made subsequent to the assent are questions that
do not call for an answer in this case in the light of
the view we have adopted.''
In the above ruling, the Apex Court has categorically held that the State
Government and the Recommending Authority are expected to ensure
that the requirements set down by the BCI is also complied with. The
Apex Court has also observed that as the apex Professional Body, BCI is
concerned with the standards of the legal education and the equipment of
those who seek entry into that profession. While making such succinct
observations, the Apex Court has also referred to the Advocates' Act,
1961 being an enactment that fell out of Entries 77 and 78 of List I of the
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Seventh Schedule. When the qualifications are prescribed by the BCI in
terms of the source of power to prescribe as such traceable to the
Advocates' Act, 1961 which enactment had roots in Entry 77 and 78 of
List I of the Seventh Schedule, as held by the Constitution Bench of the
Apex Court in O.N.Mohindroo Vs. The Bar Council of Delhi and
Others reported in AIR 1968 SC 888, the prescription of unconnected
qualifications under the pretext of introducing higher qualification, cannot
be countenanced both in law and on facts.
42 The learned counsel, apart from the above decision, has also
placed reliance on the following decisions:-
[a] AIR 1953 SC 375 [C.Gajapati Narayan Deo and Others V.
The State of Orissa], wherein paragraph No.9 has been referred to and
the same is extracted hereunder:-
"9.It may be made clear at the outset that the
doctrine of colourable legislation does not involve
any question of bona fides or mala fides on the part
of the legislature. The whole doctrine resolves itself
into the question of competency of a particular
legislature to enact a particular law. If the
legislature is competent to pass a particular law,
the motives which impelled it to act are really
irrelevant. On the other hand, if the legislature
lacks competency, the question of motive does not
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arise at all. Whether a statute is constitutional or
not is thus always a question of power
[ Vide Cooley's Constitutional Limitations, Vol 1 p
379] . A distinction, however, exists between a
legislature which is legally omnipotent like the
British Parliament and the laws promulgated by it
which could not be challenged on the ground of
incompetence, and a legislature which enjoys only
a limited or a qualified jurisdiction. If the
Constitution of a State distributes the legislative
powers amongst different bodies, which have to act
within their respective spheres marked out by
specific legislative entries, or if there are
limitations on the legislative authority in the shape
of fundamental rights, questions do arise as to
whether the legislature in a particular case has or
has not, in respect to the subject-matter of the
statute or in the method of enacting it, transgressed
the limits of its constitutional powers. Such
transgression may be patent, manifest or direct, but
it may also be disguised, covert and indirect and it
is to this latter class of cases that the expression
“colourable legislation” has been applied in
certain judicial pronouncements. The idea
conveyed by the expression is that although
apparently a legislature in passing a statute
purported to act within the limits of its powers, yet
in substance and in reality it transgressed these
powers, the transgression being veiled by what
appears, on proper examination, to be a mere
pretence or disguise. As was said by Duff, J.
in Attorney-General for Ontario v. Reciprocal
Insurers [1924 AC 328 at 337] :
“Where the law making authority is of a
limited or qualified character it may be
necessary to examine with some strictness
the substance of the legislation for the
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purpose of determining what is that the
legislature is really doing.”
In other words, it is the substance of the Act
that is material and not merely the form or
outward appearance, and if the subject-
matter in substance is something which is
beyond the powers of that legislature to
legislate upon, the form in which the law is
clothed would not save it from
condemnation. The legislature cannot
violate the constitutional prohibitions by
employing an indirect method. In cases like
these, the enquiry must always be as to the
true nature and character of the challenged
legislation and it is the result of such
investigation and not the form alone that
will determine as to whether or not it relates
to a subject which is within the power of the
legislative authority [ Vide Attorney-
General for Ontario v. Reciprocal Insurers,
1924 AC 328 at 337] . For the purpose of
this investigation the court could certainly
examine the effect of the legislation and
take into consideration its object, purpose
or design [ Vide Attorney-General for
Alberta v. Attorney-General for Canada,
1939 AC 117 at 130] . But these are only
relevant for the purpose of ascertaining the
true character and substance of the
enactment and the class of subjects of
legislation to which it really belongs and
not for finding out the motives which
induced the legislature to exercise its
powers. It is said by Lefroy in his well
known work on Canadian Constitution that
even if the legislature avows on the face of
an Act that it intends thereby to legislate in
reference to a subject over which it has no
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jurisdiction; yet if the enacting clauses of
the Act bring the legislation within its
powers, the Act cannot be considered ultra
vires.''
The above decision was relied on for the purpose of highlighting the legal
position that if the subject matter in substance which is something beyond
powers of the legislature to legislate upon, the same is to be declared as
unconstitutional. The Apex Court has emphasized that the substance is
more important than the form of legislation. In this case, the learned
counsel would submit that the form of the Government Orders appear to
be prescribing higher qualification but in substance, it is beyond the
legislative competence of the State Legislature and therefore, prescription
of these qualifications amounted to a colourable exercise of power.
[b] AIR 1968 SC 888 [ O.N.Mohindroo Vs. The Bar Council
of Delhi and Others]. It is a Constitution Bench decision of the Apex
Court and the learned counsel referred to paragraphs 3, 4, 5 and 7, which
are extracted hereunder:-
''3. At the hearing of his writ petition, the
appellant, inter alia, contended that Section 38 of
the Act was ultra vires Article 138(2) of the
Constitution inasmuch as the appellate jurisdiction
conferred on this Court by Section 38 fell under
Entry 26 in List III and that there being no special
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agreement between the Government of India and
the Government of any State as required by clause
2 of Article 138 Section 38 was invalidly enacted.
He also contended that Order 5 Rule 7 of the
Supreme Court Rules under which the appeal was
placed for preliminary hearing was ultra vires
Section 38 as the said rule cut down and impaired
his right of appeal under Section 38. Lastly, he
contended that the decision of the Bar Council of
India was bad for the several grounds alleged by
him in his writ petition. The learned Single Judge
who heard the writ petition rejected these
contentions and dismissed it. As regards the first
contention he held that clause 2 of Article 138 did
not apply and that it was clause 1 of that Article
which was applicable as the subject-matter of the
Advocates Act fell under Entry 77 of the Union List.
As to the other two contentions he held that Rule 7
of the Order 5 was valid and did not contravene
Section 38; that the Bench before which the appeal
came up for preliminary hearing had heard the
appellant's counsel and in addition had called for
production of a document desired by him. There
was no affidavit by Counsel appearing for him that
he was not heard on any point which he desired to
contend. He also held that the appellant had
specifically raised the contention as to the vires of
the said rule in his review petition and that that
contention having been rejected, the appellant
could not reagitate it in the writ petition. He also
held that the appellant was similarly not entitled to
reagitate the question as to the merits of the said
order of suspension, the same having been
considered and rejected at the time of the
preliminary hearing of his appeal. Aggrieved by the
order of the learned Single Judge, the appellant
filed a Letters Patent Appeal. At the hearing of that
appeal the appellant's counsel conceded that he
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could not raise any contention on the merits of the
case in view of this Court having disposed of those
very contentions and that therefore he would
confine his arguments only to the question of the
vires of Section 38. The learned Judges, who heard
that appeal were of the view (1) that the Act was a
composite piece of legislation that it did not, as
held by the learned Single Judge, fall exclusively
under Entries 77 and 78 of List I but that it fell
partly under those entries and partly under Entry
26 of List III; (2) that Article 138 had no
application as the jurisdiction to entertain and try
appeals under Section 38 was not ‘further
jurisdiction’ within the meaning of that Article; that
the jurisdiction to hear such appeals was already
vested in this Court under Article 136 even without
Section 38 as the Bar Councils of Delhi and of
India were quasi-judicial tribunals and that
therefore this Court had jurisdiction to entertain
and try appeals against their orders; and (3) that
the only effect of Section 38 was that by providing
for an appeal Parliament removed the hurdle of an
appellant having to obtain special leave under
Article 136. On this reasoning the learned Judges
dismissed the contention as to the vires of Section
38. Dismissing the appeal the learned Judges
observed:
“There is no bar to the Parliament
legislating with respect to jurisdiction and
powers of the Supreme Court subject to the
express provisions of the Constitution like
Articles 132 and 134. When a provision for
appeal to the Supreme Court is made in a
statute, within the sphere covered by
Articles 132 to 136 it is not conferment of
‘further’ power and jurisdiction as
envisaged by Article 138, such power would
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be exercisable by reason of Entry 77 of List
I.”
In this appeal the appellant challenges the
correctness of this view.
4. The question which falls for consideration
is one of interpretation of Entries 77 and 78 of List
I and Entry 26 of List III. If it is held that it is Entry
26 of List III under which the Act was enacted,
clause 2 of Article 138 would apply and in that case
a special agreement with the State Government
becomes a condition precedent to the enactment of
Section 38 of the Act. In that case the difficulty
would be to reconcile Entries 77 and 78 of List I
with Entry 26 of the List III.
5. It is a well recognised rule of construction
that the Court while construing entries must assume
that the distribution of legislative powers in the
three Lists could not have been intended to be in
conflict with one another. A general power ought
not to be so construed as to make a nullity of a
particular power conferred by the same instrument
and operating in the same field when by reading
the former in a more restricted sense, effect can be
given to the latter in its ordinary and natural
meaning. It is, therefore, right to consider whether
a fair reconciliation cannot be effected by giving to
the language of an entry in one List the meaning
which, if less wide than it might in other context
bear, is yet one that can properly be given to it and
equally giving to the language of another entry in
another List a meaning which it can properly bear.
Where there is a seeming conflict between one entry
in one List and another entry in another List, an
attempt should always be made to avoid to see
whether the two entries can be harmonised to avoid
such a conflict of jurisdiction. (C.P. & Berar Sales
of Motor Spirit and Lubricants Taxation Act,
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1938 [(1938) FCR 18] ; Citizens Insurance
Company of Canada v. Parsons [(1881) 7 AC 96]
, Bhola Prasad v. Emperor [(1942) FCR 17]
; Governor General-in-Council v. Province of
Madras [(1945) 72 IA 91] , and State of
Bombay v. Balsara [(1951) SCR 682] .
.....
7. This being the scheme with regard to the
constitution and organisation of courts and their
jurisdiction and powers let us next proceed to
examine Entry 26 in List III. Entry 26, which is
analogous to Item 16 in List III of the Seventh
Schedule to the 1935 Act, deals with legal, medical
and other professions but is not concerned with the
constitution and organisation of courts or their
jurisdiction and powers. These, as already stated,
are dealt with by Entries 77, 78 and 95 in List I,
Entries 3 and 65 in List II and Entry 46 in List III.
Enactments such as the Indian Medical Council
Act, 1956, the Indian Nursing Council Act, 1947,
the Dentists Act, 1948, the Chartered Accountants
Act, 1949 and the Pharmacy Act, 1948, all Central
Acts, would fall under the power to deal with
professions under Entry 26 of List III in the Seventh
Schedule to the Constitution and Item 16 of List III
of 1935 Act. It will, however, be noticed that Entries
77 and 78 in List I are composite entries and deal
not only with the constitution and organisation of
the Supreme Court and the High Courts but also
with persons entitled to practise before the
Supreme Court and the High Courts. The only
difference between these two entries is that whereas
the jurisdiction and powers of the Supreme Court
are dealt with in Entry 77, the jurisdiction and
powers of the High Courts are dealt with not by
Entry 78 of List I but by other entries. Entries 77
and 78 in List I apart from dealing with the
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constitution and organisation of the Supreme Court
and the High Courts also deal with persons entitled
to practise before the Supreme Court and the High
Courts. This part of the two entries shows that to
the extent that the persons entitled to practise
before the Supreme Court and the High Court are
concerned, the power to legislate in regard to them
is carved out from the general power relating to the
professions in Entry 26 in List III and is made the
exclusive field for Parliament. The power to
legislate in regard to persons entitled to practise
before the Supreme Court and the High Courts is
thus excluded from Entry 26 in List III and is made
the exclusive field for legislation by Parliament
only (Re: Lily Isabel Thomas [(1964) 6 SCR 229,
236] and also Durgeshwar v. Secretary, Bar
Council, Allahabad [AIR 954 All 728] ). Baring
those entitled to practise in the Supreme Court; and
the High Courts, the power to legislate with respect
to the rest of the practitioners would still seem to be
retained under Entry 26 of List III. To what extent
the power to legislate in regard to the legal
profession still remains within the field of Entry 26
is not the question at present before us and
therefore it is not necessary to go into it in this
appeal.''
The above decision of the Constitution Bench of the Apex Court has
declared while dealing with Entry 26 of List III and Entries 77 and 78 of
List I in the Seventh Schedule, viz., that the power to legislate in regard to
persons entitled to practice before the Hon'ble Supreme Court of India or
the High Courts, is the exclusive field of the Parliament. The Constitution
Bench has held that the general power relating to the professions in Entry
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26 in List III cannot include the exclusive power of legislation in regard to
the persons who are entitled to practice before the Supreme Court and the
High Courts. In substance, the Apex Court has held that from the general
power enjoined upon the State Legislature in Entry 26 in List III, a
specific power has been carved out in terms of Entries 77 and 78 of the
Union List of the Seventh Schedule. Drawing instance form this
Constitution Bench decision, the learned counsel submitted that in the
field of legal education, the State Government may not have any say at
all, at least in the realm of prescription of qualifications.
[c] The learned counsel also referred to various paragraphs from
yet another decision of the Apex Court, which is a landmark
decision/judgment, reported in 2009 [4] SCC 590 [Annamalai
University rep.by its Registrar V.Secretary to Government,
Information and Tourism Department, Fort St George, Chennai and
Others] and the same are extracted hereunder:-
''40. The UGC Act was enacted by
Parliament in exercise of its power under Entry 66
of List I of the Seventh Schedule to the Constitution
of India whereas the Open University Act was
enacted by Parliament in exercise of its power
under Entry 25 of List III thereof. The question of
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repugnancy of the provisions of the said two Acts,
therefore, does not arise. It is true that the
Statement of Objects and Reasons of the Open
University Act shows that the formal system of
education had not been able to provide an effective
means to equalise educational opportunities. The
system is rigid inter alia in respect of attendance in
classrooms. Combinations of subjects are also
inflexible.
41. Was the alternative system envisaged
under the Open University Act in substitution of the
formal system, is the question. In our opinion, in
the matter of ensuring the standard of education, it
is not. The distinction between a formal system and
an informal system is in the mode and manner in
which education is imparted. The UGC Act was
enacted for effectuating coordination and
determination of standards in universities. The
purport and object for which it was enacted must be
given full effect.
45. The amplitude of the provisions of the
UGC Act vis-à-vis the universities constituted
under the State Universities Acts which would
include within its purview a university made by
Parliament also is now no longer res integra.
46. In Prem Chand Jain v. R.K.
Chhabra [(1984) 2 SCC 302 : 1984 SCC (Cri) 233
: (1984) 2 SCR 883] this Court held: (SCC pp. 308-
09, para 8)
“8. … The legal position is well settled that
the entries incorporated in the lists covered
by Schedule VII are not powers of
legislation but ‘fields’ of legislation.
(Harakchand Ratanchand Banthia v. Union
of India [(1969) 2 SCC 166 : (1970) 1 SCR
479] SCR at p. 489.) In State of
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Bihar v. Kameshwar Singh [AIR 1952 SC
252: 1952 SCR 889] this Court has
indicated that such entries are mere
legislative heads and are of an enabling
character. This Court has clearly ruled that
the language of the entries should be given
the widest scope or amplitude.
(Navinchandra Mafatlal v. CIT [AIR 1955
SC 58: (1955) 1 SCR 829] SCR at p. 836.)
Each general word has been asked to be
extended to all ancillary or subsidiary
matters which can fairly and reasonably be
comprehended. [See State of
Madras v. Gannon Dunkerley & Co.
(Madras) Ltd. [AIR 1958 SC 560: 1959 SCR
379] SCR at p. 391.] It has also been held
by this Court in Check Post Officer v. K.P.
Abdulla and Bros. [(1970) 3 SCC 355 : AIR
1971 SC 792: (1971) 2 SCR 817] that an
entry confers power upon the legislature to
legislate for matters ancillary or incidental,
including provision for avoiding the law. As
long as the legislation is within the
permissible field in pith and substance,
objection would not be entertained merely
on the ground that while enacting
legislation, provision has been made for a
matter which though germane for the
purpose for which competent legislation is
made it covers an aspect beyond it. In a
series of decisions this Court has opined
that if an enactment substantially falls
within the powers expressly conferred by
the Constitution upon the legislature
enacting it, it cannot be held to be invalid
merely because it incidentally encroaches
on matters assigned to another legislature.”
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47. In University of Delhi v. Raj Singh [1994
Supp (3) SCC 516 : 1995 SCC (L&S) 118 : (1994)
28 ATC 541] this Court held: (SCC pp. 526-27,
para 13)
“13. … By reason of Entry 66,
Parliament was invested with the power to
legislate on ‘coordination and
determination of standards in institutions
for higher education, or research and
scientific and technical institutions’. Item 25
of List III conferred power upon Parliament
and the State Legislatures to enact
legislation with respect to ‘vocational and
technical training of labour’. A six-Judge
Bench of this Court [Ed.: The reference is
to Gujarat University v. Krishna Ranganath
Mudholkar, AIR 1963 SC 703.] observed
that the validity of the State legislation on
the subjects of university education and
education in technical and scientific
institutions falling outside Entry 64 of List I
as it then read (that is to say, institutions
for scientific or technical education other
than those financed by the Government of
India wholly or in part and declared by
Parliament by law to be institutions of
national importance) had to be judged
having regard to whether it impinged on the
field reserved for the Union under Entry 66.
In other words, the validity of the State
legislation depended upon whether it
prejudicially affected the coordination and
determination of standards. It did not
depend upon the actual existence of the
Union legislation in respect of coordination
and determination of standards which had,
in any event, paramount importance by
virtue of the first part of Article 254(1).”
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48. In State of T.N. v. Adhiyaman Educational
and Research Institute [(1995) 4 SCC 104] this
Court laid down the law in the following terms:
(SCC pp. 134-35, para 41)
“41. What emerges from the above
discussion is as follows:
(i) The expression ‘coordination’ used in
Entry 66 of the Union List of the Seventh
Schedule to the Constitution does not
merely mean evaluation. It means
harmonisation with a view to forge a
uniform pattern for a concerted action
according to a certain design, scheme or
plan of development. It, therefore, includes
action not only for removal of disparities in
standards but also for preventing the
occurrence of such disparities. It would,
therefore, also include power to do all
things which are necessary to prevent what
would make ‘coordination’ either
impossible or difficult. This power is
absolute and unconditional and in the
absence of any valid compelling reasons, it
must be given its full effect according to its
plain and express intention.
(ii) To the extent that the State legislation is
in conflict with the Central legislation
though the former is purported to have been
made under Entry 25 of the Concurrent List
but in effect encroaches upon legislation
including subordinate legislation made by
the Centre under Entry 25 of the
Concurrent List or to give effect to Entry 66
of the Union List, it would be void and
inoperative.
(iii) If there is a conflict between the two
legislations, unless the State legislation is
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saved by the provisions of the main part of
clause (2) of Article 254, the State
legislation being repugnant to the Central
legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon
Entry 66 of the Union List or is repugnant
to the law made by the Centre under Entry
25 of the Concurrent List, will have to be
determined by the examination of the two
laws and will depend upon the facts of each
case.
(v) When there are more applicants than the
available situations/seats, the State
authority is not prevented from laying down
higher standards or qualifications than
those laid down by the Centre or the
Central authority to shortlist the applicants.
When the State authority does so, it does
not encroach upon Entry 66 of the Union
List or make a law which is repugnant to the
Central law.
(vi) However, when the situations/seats are
available and the State authorities deny an
applicant the same on the ground that the
applicant is not qualified according to its
standards or qualifications, as the case may
be, although the applicant satisfies the
standards or qualifications laid down by the
Central law, they act unconstitutionally. So
also when the State authorities derecognise
or disaffiliate an institution for not
satisfying the standards or requirement laid
down by them, although it satisfied the
norms and requirements laid down by the
Central authority, the State authorities act
illegally.”
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49. In State of A.P. v. K. Purushotham
Reddy [(2003) 9 SCC 564] this Court held: (SCC p.
572, para 19)
“19. The conflict in legislative
competence of Parliament and the State
Legislatures having regard to Article 246 of
the Constitution of India must be viewed in
the light of the decisions of this Court which
in no uncertain terms state that each entry
has to be interpreted in a broad manner.
Both the parliamentary legislation as also
the State legislation must be considered in
such a manner so as to uphold both of them
and only in a case where it is found that
both cannot coexist, the State Act may be
declared ultra vires. Clause (1) of
Article 246 of the Constitution of India does
not provide for the competence of
Parliament or the State Legislatures as is
ordinarily understood but merely provides
for the respective legislative fields.
Furthermore, the courts should proceed to
construe a statute with a view to uphold its
constitutionality.” (emphasis supplied)
It was observed: (Purushotham Reddy
case [(2003) 9 SCC 564] , SCC p. 573, para 20)
“20. Entry 66 of List I provides for
coordination and determination of
standards inter alia for higher education.
Entry 25 of List III deals with broader
subject, namely, education. On a conjoint
reading of both the entries there cannot be
any doubt whatsoever that although the
State has a wide legislative field to cover
the same is subject to Entries 63, 64, 65 and
66 of List I. Once, thus, it is found that any
State legislation does not entrench upon the
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legislative field set apart by Entry 66, List I
of the Seventh Schedule of the Constitution
of India, the State Act cannot be
invalidated.”
50. The UGC Act, thus, having been enacted by
Parliament in terms of Entry 66 of List I of the
Seventh Schedule to the Constitution of India would
prevail over the Open University Act.
51. With respect, it is difficult to accept the
submissions of the learned Solicitor General that
the two Acts operate in different fields, namely,
conventional university and open university. The
UGC Act, indisputably, governs open universities
also. In fact, it has been accepted by IGNOU itself. It
has also been accepted by the appellant University.
...
54. This Court in Osmania University Teachers'
Assn. v. State of A.P. [(1987) 4 SCC 671] held as
under: (SCC pp. 676 and 685, paras 14-15 and 30)
“14. Entry 25, List III relating to education
including technical education, medical
education and universities has been made
subject to the power of Parliament to
legislate under Entries 63 to 66 of List I.
Entry 66, List I and Entry 25, List III
should, therefore, be read together. Entry
66 gives power to Union to see that a
required standard of higher education in
the country is maintained. The standard of
higher education including scientific and
technical should not be lowered at the
hands of any particular State or States.
Secondly, it is the exclusive responsibility of
the Central Government to coordinate and
determine the standards for higher
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education. That power includes the power to
evaluate, harmonise and secure proper
relationship to any project of national
importance. It is needless to state that such
a coordinate action in higher education
with proper standards, is of paramount
importance to national progress. It is in this
national interest, the legislative field in
regard to ‘education’ has been distributed
between List I and List III of the Seventh
Schedule.
15. Parliament has exclusive power to
legislate with respect to matters included in
List I. The State has no power at all in
regard to such matters. If the State
legislates on the subject falling within List I
that will be void, inoperative and
unenforceable.
***
30. The Constitution of India vests
Parliament with exclusive authority in
regard to coordination and determination
of standards in institutions for higher
education. Parliament has enacted the UGC
Act for that purpose. The University Grants
Commission has, therefore, a greater role to
play in shaping the academic life of the
country. It shall not falter or fail in its duty
to maintain a high standard in the
universities. Democracy depends for its
very life on a high standard of general,
vocational and professional education.
Dissemination of learning with search for
new knowledge with discipline all round
must be maintained at all costs. It is hoped
that University Grants Commission will duly
discharge its responsibility to the nation
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and play an increasing role to bring about
the needed transformation in the academic
life of the universities.”
57. Relaxation, in our opinion,
furthermore cannot be granted in regard to
the basic things necessary for conferment of
a degree. When a mandatory provision of a
statute has not been complied with by an
administrative authority, it would be void.
Such a void order cannot be validated by
inaction.
58. The only point which survives for
our consideration is as to whether the
purported post facto approval granted to
the appellant University of programmes
offered through distance modes is valid.
DEC may be an authority under the Act, but
its orders ordinarily would only have a
prospective effect. It having accepted in its
letter dated 5-5-2004 that the appellant
University had no jurisdiction to confer
such degrees, in our opinion, could not
have validated an invalid act. The degrees
become invalidated in terms of the
provisions of the UGC Act. When mandatory
requirements have been violated in terms of
the provisions of one Act, an authority
under another Act could not have validated
the same and that too with a retrospective
effect.
59. The provisions of the UGC Act
are not in conflict with the provisions of the
Open University Act. It is beyond any cavil
of doubt that the UGC Act shall prevail over
the Open University Act. It has, however,
been argued that the Open University Act is
a later Act. But we have noticed
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hereinbefore that the nodal Ministry knew
of the provisions of both the Acts. The
Regulations were framed almost at the same
time after passing of the Open University
Act. The Regulations were framed at a later
point of time. Indisputably, the Regulations
embrace within its fold the matters covered
under the Open University Act also.
60. Submission of Mr K. Parasaran
that in terms of sub-section (2) of Section 5
of the Open University Act a non obstante
clause has been created and, thus, would
prevail over the earlier Act cannot also be
accepted. Apart from the fact that in this
case repugnancy of the two Acts is not in
question (in fact cannot be in question
having (sic not) been enacted by Parliament
and a State in terms of the provisions of the
Concurrent List) the non obstante clause
contained in the Open University Act will be
attracted provided the statutes operate in
the same field. The UGC Act, as noticed
hereinbefore, operates in different field. It
was enacted so as to make provision for the
coordination and determination of
standards in universities and for that
purpose, to establish a University Grants
Commission. Its directions being binding
on IGNOU, sub-section (2) of Section 5 of the
Open University Act would not make the
legal position otherwise.''
According to the learned counsel ,the Apex Court has held in the said
decision that the Central Regulating Body like the UGC alone is
competent to prescribe the qualification and all Universities are bound by
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the minimum standards of the qualification that are prescribed by UGC.
The Apex Court has taken a view that the uniform standards may be
maintained in the higher education across the country and it is not open
to State Government or any University to water down the minimum
standards set forth by the Central Regulating Body.
[d] The learned counsel also referred to various paragraphs in
the decision reported in 2020 SCC Online SC 699 [Tamil Nadu
Medical Officers' Association and Others V. Union of India and
Others] which read thus:-
''4The present batch of cases came up for
hearing before another Bench of three Judges. The
Bench was of the opinion that the present batch of
cases require consideration by a larger Bench and
that is how the present batch of cases are referred
to a larger Bench. On the basis of the submissions
made, the following reasons were mentioned:
...
(ii) The main contention of the petitioners is
that while coordination and determination of
standards in institutions for higher education falls
within the exclusive domain of the Union (Entry 66
List I), medical education is a subject in the
Concurrent List (Entry 25 List III). Though, Entry
25 of List III is subject to Entry 66 of List I, the
State is not denuded of its power to legislate on the
manner and method of making admissions to
postgraduate medical courses;
...
11. The moot question is whether the State
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Government is competent to provide for a
reservation for candidates who are already serving
the Government. Such reservation is made for Post-
graduate seats in the different medical colleges in
the State. The competence of the State Government
is traceable to Article 245 r/w Entry 25 List III of
the 7th schedule to the Constitution. It cannot be
said that there has to be a legislature made law to
provide for such reservation. The Government can
in exercise of its power as an Executive under
Article 154 provide for such reservation and it has
been so provided as well.
.....
102. Therefore, the following issues arise for
consideration and determination of this Court in
the present batch of writ petitions/appeals:
1. What is the scope and ambit of Entry 66 of
List I?
2. What will be the impact/effect of MCI
Regulations, 2000 framed by the Medical Council
of India in exercise of its powers under Section 33
of the Indian Medical Council Act, 1956?
3. Whether in view of Entry 66 of List I, the
State is denuded of its power to legislate on the
manner and method of the postgraduate medical
courses, more particularly, making special
provisions for in-service candidates in the
postgraduate degree/diploma courses?
4. Whether Regulation 9 of MCI Regulations,
2000, more particularly, Regulation 9(IV) and
9(VII) takes away the power of the States under
Entry 25 of List III to provide for a separate source
of entry for in-service candidates seeking
admission to postgraduate medical courses?
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5. Whether Regulation 9 of MCI Regulations,
2000 is understood to not allow for the States to
provide for a separate source of entry for in-service
candidates seeking admission to postgraduate
degree courses, the same is arbitrary,
discriminatory and violative of Articles 14 and
19(1) (g) of the Constitution of India, and also
ultra vires of the provisions of the Indian Medical
Council Act, 1956?
6. Whether Regulation 9 is a complete code
in itself, as observed by this Court in the case
of Dinesh Singh Chauhan (supra) affecting the
rights/authority of the States to provide for
reservation and/or separate source of entry for in-
service candidates seeking admission to
postgraduate degree courses?
....
104. In the case of Modern Dental College &
Research Centre (supra), a Constitution Bench of
this Court again had an occasion to deal with and
consider Entry 66 List I and Entry 25 List III. After
considering catena of decisions of this Court, more
particularly, the decisions of this Court in the cases
of Gujarat University (supra); R.
Chitralekha (supra); Preeti Srivastava (supra);
and Bharati Vidyapeeth v. State of Maharashtra17,
it is held by this Court that Entry 66 in List I is a
specific entry having a very specific and limited
scope. It is further observed by this Court that it
deals with “coordination and determination of
standards” in institution of higher education or
research as well as scientific and technical
institutions. The words “coordination and
determination of standards” would mean laying
down the said standards. It is observed that thus,
when it comes to prescribing the standards for such
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institutions of higher learning, exclusive domain is
given to the Union. The relevant observations are
in paragraphs 101 to 105, which read as under:
“101. To our mind, Entry 66 in List I is a
specific entry having a very specific and
limited scope. It deals with coordination
and determination of standards in
institution of higher education or research
as well as scientific and technical
institutions. The words “coordination and
determination of standards” would mean
laying down the said standards. Thus, when
it comes to prescribing the standards for
such institutions of higher learning,
exclusive domain is given to the Union.
However, that would not include conducting
of examination, etc. and admission of
students to such institutions or prescribing
the fee in these institutions of higher
education, etc. In fact, such coordination
and determination of standards, insofar as
medical education is concerned, is achieved
by parliamentary legislation in the form of
the Indian Medical Council Act, 1956 and
by creating the statutory body like Medical
Council of India (for short “MCI”) therein.
The functions that are assigned to MCI
include within its sweep determination of
standards in a medical institution as well as
coordination of standards and that of
educational institutions. When it comes to
regulating “education” as such, which
includes even medical education as well as
universities (which are imparting higher
education), that is prescribed in List III
Entry 25, thereby giving concurrent powers
to both Union as well as States. It is
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significant to note that earlier education,
including universities, was the subject-
matter of List II Entry 11
[“11. “Education” including universities,
subject to the provisions of Entries 63, 64,
65 and 66 of List I and Entry 25 of List
III”]. Thus, power to this extent was given
to the State Legislatures. However, this
entry was omitted by the Constitution
(Forty-second Amendment) Act, 1976 with
effect from 3-7-1977 and at the same time
List II Entry 25 was amended [Unamended
Entry 25 in List III read as:“Vocational and
technical training of labour”]. Education,
including university education, was thus
transferred to the Concurrent List and in
the process technical and medical education
was also added. Thus, if the argument of the
appellants is accepted, it may render Entry
25 completely otiose. When two entries
relating to education, one in the Union List
and the other in the Concurrent List,
coexist, they have to be read harmoniously.
Reading in this manner, it would become
manifest that when it comes to coordination
and laying down of standards in the higher
education or research and scientific and
technical institutions, power rests with the
Union/Parliament to the exclusion of the
State Legislatures. However, other facets of
education, including technical and medical
education, as well as governance of
universities is concerned, even State
Legislatures are given power by virtue of
Entry 25. The field covered by List III Entry
25 is wide enough and as circumscribed to
the limited extent of it being subject to List I
Entries 63, 64, 65 and 66.
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102. Most educational activities, including
admissions, have two aspects : the first
deals with the adoption and setting up the
minimum standards of education. The
objective in prescribing minimum standards
is to provide a benchmark of the calibre and
quality of education being imparted by
various educational institutions in the entire
country. Additionally, the coordination of
the standards of education determined
nationwide is ancillary to the very
determination of standards. Realising the
vast diversity of the nation wherein levels of
education fluctuated from lack of even basic
primary education, to institutions of high
excellence, it was thought desirable to
determine and prescribe basic minimum
standards of education at various levels,
particularly at the level of research
institutions, higher education and technical
education institutions. As such, while
balancing the needs of States to impart
education as per the needs and
requirements of local and regional levels, it
was essential to lay down a uniform
minimum standard for the nation.
Consequently, the Constitution-makers
provided for List I Entry 66 with the
objective of maintaining uniform standards
of education in fields of research, higher
education and technical education.
103. The second/other aspect of education
is with regard to the implementation of the
standards of education determined by
Parliament, and the regulation of the
complete activity of education. This activity
necessarily entails the application of the
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standards determined by Parliament in all
educational institutions in accordance with
the local and regional needs. Thus, while
List I Entry 66 dealt with determination and
coordination of standards, on the other
hand, the original List II Entry 11 granted
the States the exclusive power to legislate
with respect to all other aspects of
education, except the determination of
minimum standards and coordination which
was in national interest. Subsequently, vide
the Constitution (Forty-second Amendment)
Act, 1976, the exclusive legislative field of
the State Legislature with regard to
education was removed and deleted, and
the same was replaced by amending List III
Entry 25 granting concurrent powers to
both Parliament and State Legislature the
power to legislate with respect to all other
aspects of education, except that which was
specifically covered by List I Entries 63 to
104. No doubt, in Bharati Vidyapeeth
[Bharati Vidyapeeth v. State of
Maharashtra, (2004) 11 SCC 755 : 2 SCEC
535] it has been observed that the entire
gamut of admission falls under List I Entry
66. The said judgment by a Bench of two
Judges is, however, contrary to law laid
down in earlier larger Bench decisions.
In Gujarat University [Gujarat
University v. Krishna Ranganath
Mudholkar, AIR 1963 SC 703 : 1963 Supp
(1) SCR 112], a Bench of five Judges
examined the scope of List II Entry 11
(which is now List III Entry 25) with
reference to List I Entry 66. It was held that
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the power of the State to legislate in respect
of education to the extent it is entrusted to
Parliament, is deemed to be restricted.
Coordination and determination of
standards was in the purview of List I and
power of the State was subject to power of
the Union on the said subject. It was held
that the two entries overlapped to some
extent and to the extent of overlapping the
power conferred by List I Entry 66 must
prevail over power of the State. Validity of a
State legislation depends upon whether it
prejudicially affects “coordination or
determination of standards”, even in
absence of a Union legislation. In R.
Chitralekha v. State of Mysore [R.
Chitralekha v. State of Mysore, AIR 1964
SC 1823 : (1964) 6 SCR 368], the same
issue was again considered. It was observed
that if the impact of the State law is heavy
or devastating as to wipe out or abridge the
Central field, it may be struck down.
In State of T.N. v. Adhiyaman Educational
& Research Institute [State of
T.N. v. Adhiyaman Educational & Research
Institute, (1995) 4 SCC 104 : 1 SCEC 682],
it was observed that to the extent that State
legislation is in conflict with the Central
legislation under Entry 25, it would be void
and inoperative. To the same effect is the
view taken in Preeti Srivastava [Preeti
Srivastava v. State of M.P., (1999) 7 SCC
120 : 1 SCEC 742] and State of
Maharashtra v. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya [State of
Maharashtra v. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya, (2006) 9
SCC 1 : 5 SCEC 637]. Though the view
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taken in State of M.P. v. Nivedita
Jain [State of M.P. v. Nivedita Jain, (1981)
4 SCC 296] and Ajay Kumar Singh v. State
of Bihar [Ajay Kumar Singh v. State of
Bihar, (1994) 4 SCC 401] to the effect that
admission standards covered by List I Entry
66 could apply only post admissions was
overruled in Preeti Srivastava [Preeti
Srivastava v. State of M.P., (1999) 7 SCC
120 : 1 SCEC 742], it was not held that the
entire gamut of admissions was covered by
List I as wrongly assumed in Bharati
Vidyapeeth [Bharati Vidyapeeth v. State of
Maharashtra, (2004) 11 SCC 755 : 2 SCEC
535].
105. We do not find any ground for holding
that Preeti Srivastava [Preeti
Srivastava v. State of M.P., (1999) 7 SCC
120 : 1 SCEC 742] excludes the role of
States altogether from admissions. Thus,
observations in Bharati Vidyapeeth
[Bharati Vidyapeeth v. State of
Maharashtra, (2004) 11 SCC 755 : 2 SCEC
535] that entire gamut of admissions was
covered by List I Entry 66 cannot be upheld
and overruled to that extent. No doubt, List
III Entry 25 is subject to List I Entry 66, it is
not possible to exclude the entire gamut of
admissions from List III Entry 25. However,
exercise of any power under List III Entry
25 has to be subject to a Central law
referable to Entry 25.”
(emphasis supplied)
105. In the concurring judgment, Bhanumati,
J. in paragraphs 131 to 134 and 147 to 149, has
held as under:
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“131. In order to answer the concern of
other Constitution Framers, Dr Ambedkar
went on to clarify the limited scope of List I
Entry 66 (as in the present form), as
proposed by him in the following words :
(CAD Vol. 9, p. 796)
“Entry 57-A merely deals with the
maintenance of certain standards in certain
classes of institutions, namely, institutions
imparting higher education, scientific and
technical institutions, institutions for
research, etc. You may ask, “why this
entry?” I shall show why it is necessary.
Take for instance, the BA Degree
examination which is conducted by the
different universities in India. Now, most
provinces and the Centre, when advertising
for candidates, merely say that the
candidate should be a graduate of a
university. Now, suppose the Madras
University says that a candidate at the BA
Examination, if he obtained 15% of the total
marks shall be deemed to have passed that
examination; and suppose the Bihar
University says that a candidate who has
obtained 20% of marks shall be deemed to
have passed the BA degree examination;
and some other university fixes some other
standard, then it would be quite a chaotic
condition, and the expression that is usually
used, that the candidate should be a
graduate, I think, would be meaningless.
Similarly, there are certain research
institutes, on the results of which so many
activities of the Central and Provincial
Governments depend. Obviously, you
cannot permit the results of these technical
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and scientific institutes to deteriorate from
the normal standard and yet allow them to
be recognised either for the Central
purposes, for all-India purposes or the
purposes of the State.”
132. The intent of our Constitution Framers
while introducing Entry 66 of the Union List
was thus limited only to empowering the
Union to lay down a uniform standard of
higher education throughout the country
and not to bereft the State Legislature of its
entire power to legislate in relation to
“education” and organising its own
common entrance examination.
133. If we consider the ambit of the present
Entry 66 of the Union List; no doubt the
field of legislation is of very wide import
and determination of standards in
institutions for higher education. In the
federal structure of India, as there are
many States, it is for the Union to
coordinate between the States to cause them
to work in the field of higher education in
their respective States as per the standards
determined by the Union. Entry 25 in the
Concurrent List is available both to the
Centre and the States. However, power of
the State is subject to the provisions of
Entries 63, 64, 65, and 66 of the Union List;
while the State is competent to legislate on
the education including technical education,
medical education and universities, it
should be as per the standards set by the
Union.
134. The words “coordination” and
“determination of the standards in higher
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education” are the preserve of Parliament
and are exclusively covered by Entry 66 of
the Union List. The word “coordination”
means harmonisation with a view to forge a
uniform pattern for concerted action. The
term “fixing of standards of institutions for
higher education” is for the purpose of
harmonising coordination of the various
institutions for higher education across the
country. Looking at the present distribution
of legislative powers between the Union and
the States with regard to the field of
“education”, that State's power to legislate
in relation to “education, including
technical education, medical education and
universities” is analogous to that of the
Union. However, such power is subject to
Entries 63, 64, 65 and 66 of the Union List,
as laid down in Entry 25 of the Concurrent
List. It is the responsibility of the Central
Government to determine the standards of
higher education and the same should not
be lowered at the hands of any particular
State.
xxxxxxxxxxxx
147. Another argument that has been put
forth is that the power to enact laws laying
down process of admission in universities,
etc. vests in both Central and State
Governments under Entry 25 of the
Concurrent List only. Under Entry 25 of the
Concurrent List and erstwhile Entry 11 of
the State List, the State Government has
enacted various legislations that inter alia
regulate admission process in various
institutions. For instance, Jawaharlal Nehru
Krishi Vishwavidyalaya Adhiniyam, Rajiv
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Gandhi Prodyogiki Vishwavidyalaya
Adhiniyam, Rashtriya Vidhi Sansathan
Vishwavidyalaya Adhiniyam, etc. were
established by the State Government in
exercise of power under Entry 25 of the
Concurrent List. Similarly, the Central
Government has also enacted various
legislations relating to higher education
under Entry 25 of the Concurrent List
pertaining to Centrally funded universities
such as the Babasaheb Bhimrao Ambedkar
University Act, 1994, the Maulana Azad
National Urdu University Act, 1996, the
Indira Gandhi National Tribal University
Act, 2007, etc. The Central Government may
have the power to regulate the admission
process for Centrally funded institutions
like IITs, NIT, JIPMER, etc. but not in
respect of other institutions running in the
State.
148. In view of the above discussion, it can
be clearly laid down that power of the
Union under Entry 66 of the Union List is
limited to prescribing standards of higher
education to bring about uniformity in the
level of education imparted throughout the
country. Thus, the scope of Entry 66 must be
construed limited to its actual sense of
“determining the standards of higher
education” and not of laying down
admission process. In no case is the State
denuded of its power to legislate under List
III Entry 25. More so, pertaining to the
admission process in universities imparting
higher education.
149. I have no hesitation in upholding the
vires of the impugned legislation which
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empowers the State Government to regulate
admission process in institutions imparting
higher education within the State. In fact,
the State being responsible for welfare and
development of the people of the State,
ought to take necessary steps for welfare of
its student community. The field of “higher
education” being one such field which
directly affects the growth and development
of the State, it becomes prerogative of the
State to take such steps which further the
welfare of the people and in particular
pursuing higher education. In fact, the State
Government should be the sole entity to lay
down the procedure for admission and fee,
etc. governing the institutions running in
that particular State except the Centrally
funded institutions like IIT, NIT, etc.
because no one can be a better judge of the
requirements and inequalities-in-
opportunity of the people of a particular
State than that State itself. Only the State
legislation can create equal level playing
field for the students who are coming out
from the State Board and other streams.”
(emphasis supplied)
106. Thus, as held by the Constitution Bench
of this Court in the case of Modern Dental
College (supra), in which this Court considered
catena of earlier decisions of this Court dealing
with the scope and ambit of Entry 66 List I, Entry
66 of List I is a specific entry having a very specific
and limited scope; it deals with “Coordination and
Determination of Standards” in institutions of
higher education or research as well as scientific
and technical institutions. It is further observed
that the words “Coordination and Determination of
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Standards” would mean laying down the said
standards and therefore when it comes to prescribe
the standards for such institutions of higher
learning, exclusive domain is given to the Union. It
is specifically further observed that that would not
include conducting of examination etc. and
admission of students to such institutions or
prescribing the fee in these institutions of higher
education, etc. Thus, in exercise of powers under
Entry 66 List I, the Union cannot provide for
anything with respect to reservation/percentage of
reservation and/or even mode of admission within
the State quota, which powers are conferred upon
the States under Entry 25 of List III. In exercise of
powers under Entry 25 List III, the States have
power to make provision for mode of admissions,
looking to the requirements and/or need in the
concerned State.
...
145. The sum and substance of the above
discussion and conjoint reading of the decisions
referred to and discussed hereinabove, our
conclusions are as under:
1) that Entry 66 List I is a specific entry
having a very limited scope;
2) it deals with “coordination and
determination of standards” in higher
education;
3) the words “coordination and
determination of standards would mean
laying down the said standards;
4) the Medical Council of India which has
been constituted under the provisions of
the Indian Medical Council Act, 1956 is the
creature of the statute in exercise of
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powers under Entry 66 List I and has no
power to make any provision for
reservation, more particularly, for in-
service candidates by the concerned States,
in exercise of powers under Entry 25 List
III;
5) that Regulation 9 of MCI Regulations,
2000 does not deal with and/or make
provisions for reservation and/or affect the
legislative competence and authority of the
concerned States to make reservation
and/or make special provision like the
provision providing for a separate source
of entry for in-service candidates seeking
admission to postgraduate degree courses
and therefore the concerned States to be
within their authority and/or legislative
competence to provide for a separate
source of entry for in-service candidates
seeking admission to postgraduate degree
courses in exercise of powers under Entry
25 of List III;
6) if it is held that Regulation 9, more
particularly, Regulation 9(IV) deals with
reservation for in-service candidates, in
that case, it will be ultra vires of the Indian
Medical Council Act, 1956 and it will be
beyond the legislative competence under
Entry 66 List I.;
7) Regulation 9 of MCI Regulations, 2000
to the extent tinkering with reservation
provided by the State for in-service
candidates is ultra vires on the ground that
it is arbitrary, discriminatory and violative
of Articles 14 and 21 of the Constitution of
India;
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8) that the State has the legislative
competence and/or authority to provide for
a separate source of entry for in-service
candidates seeking admission to
postgraduate degree/diploma courses, in
exercise of powers under Entry 25, List III.
However, it is observed that policy must
provide that subsequent to obtaining the
postgraduate degree by the concerned in-
service doctors obtaining entry in degree
courses through such separate channel
serve the State in the rural, tribal and hilly
areas at least for five years after obtaining
the degree/diploma and for that they will
execute bonds for such sum the respective
States may consider fit and proper; and
9) it is specifically observed and clarified
that the present decision shall operate
prospectively and any admissions given
earlier taking a contrary view shall not be
affected by this judgment.''
The above decision has been referred to by the learned counsel in order to
highlight certain observations of the Apex Court made in the context of
the clash of legislative powers exercisable under Union List and the State
List, particularly, Entry 66 in List I and Entry 25 in List III. While
interpreting the legislative power, the Constitution Bench has laid down
certain principles as to how it should be understood in the context of the
purpose for which those entries have been incorporated in the
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Constitution. One relating to the exclusive domain and the other relating
to the general power and the Courts would always need to strike a
balance and construct the entries harmoniously. He would submit that
though the above decision stated that the State still has a space for
bringing in certain regulations relating to the field of medical education,
despite Entry 66 in List I, yet the highlight of the decision is that there is
a specific power of laying down standards in higher education being
traceable only to Entry 66 and the State Government is completely
denuded of its jurisdiction in such matters. He would therefore, submit
that the standards of legal education are prescribed only by the BCI in
terms of the provisions of the Advocates Act, 1961. Therefore, there
cannot be any justification in prescription of M.L., degree and enrollment
as advocate for a faculty to teach pre-law courses, which in no way would
enhance the standards or improve the legal education.
43 He would sum up his argument saying that as far as the
stand of the BCI is concerned, the qualifications as prescribed by the
State Government only in respect of the Law Colleges which come under
its control, is completely unwarranted and therefore, the same are liable
to be declared as illegal and arbitrary.
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44 Mr.P.R.Gopinath, learned counsel appearing for the
University Grants Commission [UGC] submitted that UGC lays down
minimum qualifications for the Universities and Colleges to follow. It
also prescribes inter-disciplinary subject and also the nomenclature of the
post. The Commission also regulates teachers-students ratio. As far as
prescription of minimum qualification is concerned, the Government Law
Colleges in the State are affiliated to Dr.Ambedkar Law University which
is a recognized State University under Section 2[f] of the UGC Act.
According to him, it is always open to the Universities or State
Government to prescribe higher qualification and there is no prohibition
at all. Learned counsel also referred to minimum qualification prescribed
by UGC Regulations, 2010. He has referred to the post of Assistant
Professor at paragraph 4.4.0. He would particularly draw reference to the
qualifications prescribed in 4.4.1, which reads thus :-
''4.4.0-Assistant Professor
4.4.1:-Arts, Humanities, Sciences, Social Sciences,
Commerce, Education, Languages, Law,
Journalism and Mass Communication.
i. Good academic record as defined by the
concerned University with at least 55%
marks [or an equivalent grade in a point
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scale wherever grading system is followed]
at the Masters Degree level in a relevant
subject from an Indian University, or an
equivalent degree from an accredited foreign
University.
ii. Besides fulfilling the above qualifications,
the candidate must have cleared the National
Eligibility Test [NET] conducted by the UGC,
CSIR or similar test accredited by the UGC
like SLET/SET.''
According to him, what is prescribed there is only Masters Degree in the
relevant subject from an Indian University besides clearance of
NET/SLET etc. He also referred to the prescription of inter-disciplinary
subject under UGC Regulations. The inter-disciplinary nature of subject,
according to UGC Guidelines, is required to be decided by the concerned
University / Appointing Authority. As far as the Teacher-students ratio is
concerned the learned counsel referred to the relevant Regulation. He
also referred to the minimum hours of work as per the UGC guidelines.
According to him, the minimum 16 hours per week is prescribed for the
Assistant Professor. As far as nomenclature is concerned, the learned
counsel submits that the latest Regulation prescribes only 3 posts in
teaching faculty in the higher education, viz., Assistant Professor,
Associate Professor and Professor.
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45 Ms.Sudha, one other learned counsel appearing for the UGC
would submit that Ph.D., qualification is recognized by UGC only when
the same has been obtained on a regular mode. She also referred to 2016
Amendment and also the subsequent amendments in the years 2018 and
2021. The Commission has framed guidelines for recognition of Ph.D.,
degree only if such degrees are conferred on a regular mode. In effect,
the learned counsel attempted to impress upon this Court that generally
when degrees are obtained through regular mode, such degrees alone are
to be recognized; but not the degrees obtained otherwise.
46 Mr.G.Murugendran, learned counsel, as a matter of
clarification in regard to the number of hours which are required to be
taken by the Assistant Professor, in terms of UGC Regulation, has
referred to a Chart and according to him, the Chart has been approved by
a Principal of a Government Law College. In terms of the Chart, the pre-
law Assistant Professor as on date is required to take 18 hours per week.
Therefore, it is not correct on the part of the opposing counsel to say that
mere Post Graduation qualification in the relevant subject would not
provide any scope for full time engagement in terms of the UGC
Regulations.
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47 The learned counsel further submitted that the teacher-
students ratio as per the norms of the UGC is 1:30. In many Government
Colleges the faculties are required to take classes having strength of 90
and above in one section. In tune with the ratio of the UGC, the Colleges
can create that many sections on the basis of the actual students strength
and by such arrangement, quality of education would also improve and
the services of the pre-law faculty will also be utilised fully and they
could be made to work in terms of the minimum hours as prescribed by
the UGC. In any event, as on date, these pre-law faculties are performing
more than the minimum hours prescribed by UGC and the contention
contrary to that, is contrary to the facts.
48 The learned counsels who are aggrieved by the 'additional'
qualification prescribed in the Notification, uniformly submitted that
these qualifications do not provide any value addition and would any way
help the legal education achieve higher standards. On the other hand, the
extra qualifications as prescribed, suffer from grave irrationality without
any iota of any quality being added to the Post Graduation qualification
in the relevant subject. The learned counsels have also submitted that
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some of the persons with existing M.L., qualification and enrolled as
advocates, have obtained their Post Graduate Degrees through Open
University mode and some of them are in possession of cross degrees,
viz., Under Graduate in non relevant subject and Post Graduate in the
relevant subject. These candidates who are merely in possession of Post
Graduate Degree in the relevant subject would certainly not be a quality
faculty as the relevant subject they have learnt is only for two years in the
Post Graduate course, which would not be sufficient for taking classes
effectively. They would also not be endowed with basic academic skills
in the relevant subject in the absence of the basic qualification being
different. The candidate with such qualification cannot be certainly called
as proper faculty.
49 The learned counsels therefore, submitted that there appear
to be serious infirmities in the prescription of qualifications on one hand
and on the other, lack of clarity on how the qualifications as prescribed,
to be acquired. In the overall circumstances of the case, the Notifications
issued in terms of the original Government Orders No.1349 and 264
dated 19.11.1985 and 20.12.2005, are liable to be declared as illegal,
arbitrary, irrational and unreasonable.
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50 Mr.R.Shanmugasundaram, learned Advocate General has
appeared and argued on behalf of the State Government in the batch of
writ petitions. The learned Advocate General has made detailed
submissions touching upon all the facts as argued above by the respective
learned counsels for the writ petitioners. According to the learned
Advocate General, the prescription of the additional qualifications are
required for the kind of subjects that are required to be taught even at the
level of the pre-law courses. Therefore, the Government felt the necessity
for having the faculty who are qualified both in the relevant subjects [pre-
law] and also M.L., qualification for attending to the additional
requirements of the students even during their study at the pre-law level.
51 According to the learned Advocate General, there is nothing
wrong in prescribing additional qualifications as it would be a value
addition for the students who are ultimately to be trained as Advocates to
be enrolled at the Bar. Further, for a teaching faculty, career progression
is possible only upto the level of Principal and above only when a person
is credited with Post Graduate degree in law. If a person merely in
possession of a Post Graduate Degree in any relevant subject cannot
aspire to go beyond the level of Head of Department [HOD]. Therefore,
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both from the perspective of the students interest as well as the faculty's
interest, such qualifications have been prescribed and the same cannot be
legally faulted with. The learned Advocate General therefore summed up
that there is no legal or constitutional infirmity in the prescription of the
additional qualifications and he therefore prays for dismissal of the writ
petitions challenging the qualifications.
52 This Court heard the arguments advanced by
Mr.R.Shanmugasundaram, learned Advocate General appearing for the
State ; Mr.S.Prabhakaran, learned Senior counsel ; Mr.R.Singaravelan,
learned Senior Counsel, Mr.G.Murugendran, Mr.Thiyagarajan,
Mr.G.Sankaran, Mr.Balan Haridas, respective learned counsels appearing
for the writ petitioners and Mr.Gopinath and Ms.Sudha, learned counsels
appearing for UGC.
53 After elaborate arguments of all the counsels on board, there
are at least three principal issues that emerge for consideration of this
Court, viz.,
(1) Whether the additional qualifications prescribed in the
impugned Notification, viz., Masters Degree in Law and
enrollment as an Advocate in the Bar Council, apart from
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the qualification of Post Graduate Degree in the relevant
subject and the National Eligibility Test [NET] or an
accredited test, are rationale, reasonable free from the vice
of arbitrariness and as a corollary, whether the
qualifications as prescribed by the State authority can pass
the constitutional test of legislative competence or not?
(2) Whether the Post Graduate Degree in the relevant subject
is obtained through the Distance Education mode and not
through the regular stream, is valid for the purpose of
appointment as a faculty to teach pre-law courses or not? ;
and
(3) Whether the possession of Postgraduate Degree in the
relevant subject was obtained through regular stream or
through Distance Education Mode, but the Under Graduate
Degree in a different subject, which is known as 'cross
degree', is a valid qualification or not?
54 Out of the three issues as outlined above, the most cardinal
of the same is the challenge to the qualifications as prescribed in the
impugned Notification dated 18.07.2018, calling for recruitment to the
post of Assistant Professors [pre-law] in Government Law Colleges in the
State of Tamil Nadu for the year 2017-2018.
55 Elaborate arguments have been advanced assailing the
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prescription of the additional qualifications by the learned counsels
placing reliance on several materials, relevant rules and regulations and
also various decisions, legal principles laid down by the Courts over the
years.
56 On the other side of the spectrum, the challenge has been
resisted that no legal or constitutional infirmity could be found in the
prescription of the additional qualifications, as such qualifications are
very much required with reference to the curriculum formulated in the
pre-law courses in the Government Colleges in the State of Tamil Nadu .
On their part also, several decisions have been cited and relied upon and
in the course of the judicial discourse, the same shall be discussed
hereunder.
57 Before this Court embarks upon unraveling the core issues
with reference to the competing contentions, there are certain preliminary
issues raised objecting to the very maintainability of the writ petitions, the
same shall be dealt with first in order to clear the obstacles to the quest
for answers on the essence of the challenge.
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58 One of the objections to the challenge that without
challenging the statutory rules, as laid down in the Tamil Nadu Legal
Education Service, the writ petitioners assail only the consequential
incorporation of the qualifications in the recruitment Notification of the
years 2014 and 2018. In fact, detailed arguments have been advanced
drawing reference to two important Government Orders under the Legal
Education Service, viz., G.O.Ms.No.1349 dated 19.11.1985 and
G.O.Ms.No.264 dated 20.12.2005. The qualifications as prescribed in
the Notifications under challenge could be traced to these two
Government Orders and in the said circumstances, a mere challenge to
the qualification prescribed in the Notifications without actually
challenging the rules, is unsustainable and liable to be dismissed on that
ground alone. According to the learned counsels, the Government Orders
have been issued in furtherance of the rule making power under Article
309 of the Constitution of India.
59 The further objection is the qualifications prescribed, have
stood the test of time from 1985 and several recruitments have taken
place for more than three decades and the candidates appointed with the
said qualification. In support of this contention, the learned counsels who
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are opposed to the challenge, have relied on various decisions and
relevant observations rendered by the Courts which have been extracted
supra.
60 Countering the above arguments, it has been contended that
when the Notification was issued on 22.07.2014, both the Government
Orders, in G.O.Ms.No.1349 dated 19.11.1985 and G.O.Ms.No.264 dated
20.12.2005, had been put to challenge in WP.No.33145/2014 and the
challenge was discountenanced by a learned Single Judge and as against
that, a writ appeal was preferred in WA.No.533/2018 and a Division
Bench of this Court had dismissed the said writ appeal vide it's judgment
dated 09.03.2018. As against dismissal of the writ appeal,
Rev.Appln.No.195/2019 has been filed and the same is also tagged along
with this batch of writ petitions and the writ appeals. The answer to the
objection therefore is that challenge to the relevant rules is also before this
Court.
61 This Court's attention has been drawn to the earlier
judgments of the Division Benches made in WA.No.533/2018 dated
09.03.2018 and WA.No.2484/2018 dated 13.11.2018, wherein the
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learned Division Benches had negatived the challenge against prescription
of additional qualifications. This Court has gone through the said
judgments, but eventually finds that elaborate submissions and
arguments made by the respective learned counsels in this batch of writ
petitions, had not been canvassed for consideration before the Division
Benches. The Division Benches did not have the benefit of these
arguments. In the opinion of this Court, the issues raised in this batch
require a very incisive and critical examination, in view of the seminal
stakes involved in the field of legal education in the State of Tamil Nadu.
62 Both the learned Division Benches, had premised its' views
on the notion that the higher qualifications fixed by the employer than
fixed by the Central Regulating Agency like UGC, cannot said to be
improper and invalid. The learned Division Benches have also reasonsed
that the relevant Government Orders had stood the test of time from 1985
and 2005 onwards and it was too late in the day to challenge the same.
Further, one learned Division Bench, had dismissed WA.No.2484/2018,
vide judgment dated 09.03.2018 on the ground that it was always open to
the employer to prescribe the required qualification for any post in
service. In this regard, the Bench had relied upon a decision of the
Hon'ble Supreme Court of India reported in 2003 [2] SCC 632
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[P.U.Joshi and Others V. Accountant General, Ahmedabad and
Others]. The learned Division Bench had also dismissed the said writ
appeal on the facts of that case that the written examination for selection
was stated to be over and the aggrieved candidates approached the Court
after the last date of submission of the applications. This Court, being the
coordinate Bench, cannot make any remarks or express any opinion, as
the reasons which formed the basis of the conclusion by the Division
Benches are in consonance with the settled legal principles on the subject
matter.
63 However, inasmuch as being a Coordinate Bench, it is not
proper for this Court to differ, at the same time, in view of the
submissions as to the constitutionality of the prescription of the additional
qualifications and also pendency of the aforementioned Review
Application, this Court is inclined to take a comprehensive call on the
merits of the challenge without adopting a pedantic approach. Further,
considering the importance of the issues concerning the legal education
in the State of Tamil Nadu, this Court cannot afford to abdicate its
constitutional jurisdiction in preference to technicalities. Moreover, as
rightly contended by one of the learned counsels, that any offending
provision or rule can always be subjected to challenge, when rights of
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candidates being infringed upon due to the application of the offending
rule. It is always open to this Court to consider the constitutionality
issue, notwithstanding the earlier decisions of this Court which
admittedly, did not have an opportunity to deal with issues as raised
herein. This Court is in agreement with the submissions of the learned
counsels that the power of judicial review by the Constitutional Courts
cannot stand ousted because of the fact that the offending provision or
rule stood the test of time.
64 The other aspect of objection is that it is not open to the
candidates to challenge the qualifications prescribed after their
participation in the selection process. The learned counsels in support of
their contention, relied on some case laws. This Court cannot have any
quarrel on the consistent legal principles laid down by the Courts and it is
not open to the candidates to set up a challenge to the Regulations or the
Notifications, after their participation in the subject selection. Having
chosen to participate in the selection without demur, the candidates were
estopped from challenging the prescription in the Notification or in the
Rules. However, what calls for adjudication herein is not simple run off
the mill contestation qua parties, but it is about the interplay of powers in
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the shared legislative field as between the Central and the State
authorities in the framework of the constitutional scheme.
65 This Court is also conscious of the settled legal principle that
unless and until the qualifications are declared illegal, arbitrary and void,
the same are valid and applicable. In the said circumstances, the
qualification as prescribed in the impugned Notifications in terms of the
statutory Rules, cannot be thrown upon to challenge by the candidates,
who had participated in the selection only by virtue of the interim orders
obtained by them from this Court. It is needless to state that their
participation in the selection process did not give them any right to get
selected or appointed as their participation was always subject to the final
outcome in the writ petitions.
66 There are two possible situations which may arise in regard
to the present objection. Firstly, these writ petitions by the candidates
who participated in the selection without any protest, can be simply
dismissed on the basis of the settled legal position in terms of the case
laws cited. Secondly, these writ petitions can be disposed of by a simple
decision that the selection process was already over long time ago and in
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the event of this Court holding that the prescription of additional
qualification is unconstitutional and illegal, the same could have only a
prospective application. In such scenario, the exercise would become
only academic in respect of the writ petitioners herein as the candidates
have already been selected provisionally, in terms of the present
qualifications, as any ruling of the Court cannot be detrimental to the
accrued rights of the qualified participants as their participation in the
selection cannot be set at nought by this Court, by retrospective ruling.
67 The arguments advanced on behalf of the qualified
candidates in terms of the prescription in the Notification is that this is
not the case where unqualified candidates are sought to be selected, but it
is a strange case where the qualified candidates are sought to be
prevented from being selected at the instance of the unqualified
candidates. This submission though valid and meaningful, yet when
interference of this Court is called for on the ground of constitutionality of
the policy action of the Government, the individual rights are subject to
the ultimate decision of this Court in the matter.
68 The above contentions seem to be having a considerable
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force in favour of the provisionally selected ''qualified'' candidates. But
once again looking at the larger picture of serious pitfalls being noticed in
the qualification aspects, even in respect of the qualified candidates, this
Court has to necessarily deal with the challenge from all dimensions for
the reasons set forth below.
69 Apart from the objections as above, a new twist has been
introduced in the batch in respect of the qualifications possessed by some
of the qualified candidates who appeared to have been in possession of
cross major degrees and not having both Under Graduate and Post
Graduate degree in the same relevant subject. Further, the Post Graduate
degrees had been obtained by some candidates through Distance
Education mode. According to the counsels, behind the objections, both
type of qualifications are not valid for being appointed as Assistant
Professor in the pre-law course. Although no particular rule or regulation
or any material has been brought to the notice of this Court, this Court
finds the objections are extremely important and relevant for
consideration of this Court. When standards of the legal education in the
State is the subject matter of examination of this Court, how the
qualifications had been acquired by the ''qualified candidates'' need to be
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looked into beyond the realm of their possession of paper degrees. In
fact, this Court, during the Court during the course of arguments by the
learned counsels and also browsing through various judgments cited
supra, did not come across any judgments of the Apex Court on two
aspects, viz., cross major qualifications and qualification by Distance
Education mode with specific reference to appointment to teaching posts.
The decisions cited at the Bar relate to the legal validity of the cross major
and degrees obtained through Distance Education mode, as those degrees
have been finally held to be valid.
70 But what is troubling this Court in the present adjudication
is whether these degrees are valid or fair enough for the purpose of
appointing the candidates with such degrees in the teaching profession
and in this case, Assistant Professors for pre-law courses. These
objections have contemporaneous relevance, when there is a hue and cry
of fall in standard in the legal education, particularly imparted by the
Government run institutions. Unfortunately there is no satisfactory
clarification, either from the State Government or from the Central
Regulating Body on these vital aspects. In the absence of clear principles
laid down on these aspects, the exercise of the power of judicial review of
this Court becomes all the more a constitutional imperative of ensuring
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that the system of higher learning is not infused with the mediocrity. This
Court nonetheless is conscious of the legal position that judicial review on
academic matters is limited and circumscribed by the legal precedents as
laid down by the Apex Court, yet when the Courts find that there is
complete absence of clarity on the qualifications prescribed, the
Constitutional Court cannot be a mute spectator and be a witness to the
appointments of teachers who are under equipped and half baked with
the present unclear eligibility criteria.
71 In the said circumstances, this Court has to be certainly step
in with a view of ensure that the present policies of the Government need
a re-look so that unneeded qualifications are weeded out in the overall
interest of the institutional growth. With this conclusion, this Court
hasten to proceed further with the main challenge in the writ petition, viz.,
additional qualifications.
72 As far as the additional qualifications are concerned, the
principal justification comes from the plea that the syllabus for the Five
Year Integrated Law Courses has been designed with the mixture of
subjects like arts, science, commerce, management and with law. The
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students in the integrated courses are to be taught various branches of law
even from the first semester onwards along with a chosen pre-law course.
This Court's attention has been drawn to the factum of syllabus
prescribed by the Government and made applicable to the Government
Law Colleges in the State.
73 This Court has repeatedly encountered the advocates to
demonstrate as to how the syllabus prescribed for the Government Law
Colleges is materially and qualitatively different from the other curricula
that are made applicable to all the Universities and Colleges in the
country or even within the State like Dr.Ambedkar Law University.
However, no satisfactory submission was forth coming nor any clinching
materials were shown in support of the prescription of post graduate
degree in law and more particularly, enrollment as advocate. The
teaching of subjects relating to law may commence even from the first
semester onwards in the integrated programme, as seen in the syllabus
but it does not mean that those classes need to be handled by the
Assistant Professors who are principally recruited to handle pre-law
courses in various subjects relating to arts, science, commerce etc. The
learned counsels who argued so vehemently stating that the course
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content required a degree in law, have miserably failed to demonstrate
before this Court as to what exactly the course content which is so unique
and singular and that unless a person with post graduate degree in law
the pre-law courses cannot be handled by a post graduate degree holder
in the relevant subject. The entire arguments in this regard, have been in
the realm of conjecture and supposition.
74 Although references have been made to various documents
showing the contents of the syllabus, this Court is not convinced and
unable to persuade itself in accepting the submission of the counsels, with
cast iron conviction. Firstly, the syllabus that is made applicable as
between the Government Colleges and other institutions affiliated to
Dr.Ambedkar Law University in the State, this Court did not find any
palpable or material difference at all. Despite the painstaking efforts by
the counsels, the arguments and submissions of the counsels failed to
impress upon this Court authoritatively. Secondly, when
Mr.R.Singaravelan, learned Senior counsel referred to the latest Legal
Education Rules, 2019, though yet to be notified, under Paragraph 4 of
Schedule II, which deals with academic standards and courses to be
studied, and it is stated as under:-
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''4:Total Subjects in Liberal discipline in
Integrated Stream:-
....
[a]Matters of fact education:-
Subjects in social science, science,
commerce, management, technology and medicine
provide the education on matters of fact which are
studies in B.A./B.Sc./B.B.A./B.Com/B.Tech etc. The
syllabus of this part has to be comparable to the
syllabus prescribed by leading Universities in India
in three/four year Bachelor Degree program in
B.A., B.Sc., B.Com., B.B.A., B.Tech etc., taking into
account the standard prescribed by the
UGC/AICTE or any other respective authority for
any stream of education.''
From the above, it could be well gathered without any iota of doubt that
the syllabus for pre-law courses, like, B.A., B.Sc., B.Com., B.Tech etc.,
has to be comparable to the syllabus as that of the leading Universities in
the country in three or four year degree programme. Therefore, in the
face of such requirement, the contention of the learned counsels
supporting the qualifications is completely out of tune with the reality of
the academic requirement of the course study in the integrated
programme of 5 year law degree.
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75 The Legal Education Rules, 2019, which is yet to be
notified, what is envisaged therein is very much discernible and
appreciable. The offer to students various options of study in Arts,
Science, Commerce or Technology, does not mean that the subjects are to
be taught at a cursory or superficial level. The new rules presumably
only reinforce the obvious. In a higher education programme, when any
subject is prescribed as a specialization, the same cannot be treated as an
auxillary and make the students learn the peripheries of the subject.
Thus, the additional qualifications prescribed cannot said to be drawing
definite support from such slippery assertion or contention.
76 In the above backdrop, this Court has to approach the issue
whether the M.L., degree and also enrollment as advocate are essential
qualifications for the faculty whose recruitment is only with regard to
their appointments as pre-law teacher. In fact, initially the learned
counsels on a mistaken or misplaced notion, contended that the Central
Regulating Body like the UGC sets only the minimum standards to be
followed in the University education and that it is always open to the
University or the State Government concerned, to prescribe higher
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qualifications. This contention viewed in isolation, cannot be faulted with
at all as the Courts have consistently held so. Some decisions have also
been cited and relied upon by the counsels and this Court has also drawn
reference to the same. However, the issue herein is not the prescription of
higher qualification, but prescription of additional qualifications
unconnected to the main qualification. At best it can said to be
supernumerary qualifications. In fact, the earlier decisions of the Division
Benches which have been referred to supra, had premised its views only
on the basis of the settled legal principle that there is no bar in
prescription of higher qualification by the University or the State
Government concerned. However, when the controversy herein is probed
profoundly, it could be seen that the disputed qualifications may not have
adjunct value to the teaching faculty solely employed for taking pre-law
courses. On the other hand, with the additional qualifications,
particularly regular ML degree and enrollment as advocate, unlike the
core postgraduate degrees in the relevant subject, the focus of teaching is
forced to gravitate towards law from the pre-law level, thus defeating the
very concept of the integrated legal programme formulated by the
academia.
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77 In order to become eligible for appointment as Assistant
Professor [pre-law], in terms of the present qualifications, one needs to
have post graduate qualification in the relevant subject, plus M.L., degree
and enrollment as advocate. The time spent on acquiring the minimum
qualification is 10+2 at the school level, 3+2, acquiring qualification in
the relevant subject and 3+2, Bachelor of Law and Master of Law, which
means that a candidate is required to undergo a minimum of 10 years in
higher education to acquire the basic qualification after school final. The
emphasis of the policy makers is more on the achievement of competency
in law than the relevant subject concerned at the pre level. Needless to
mention that one cannot qualify himself/herself with M.L., degree unless
he/she qualify as an under graduate in law. Unfortunately, this is not so,
in the subject concerned where a candidate who acquires his/her post
graduate qualification in the relevant subjects like economics, commerce,
sociology etc., need not required to possess under graduate degree in the
same subjects. Incongruity is writ large on the prescription of the
qualifications as such. Such, prescription for pre-law teachers appear to
be ex facie lopsided and asymmetrical relegating the specialization like
Arts, Science, Commerce, Technology, etc., as a secondary and collateral
subject.
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78 When a candidate is to be appointed to teach pre-law
courses, the stress must be that the person selected to teach a particular
subject must be intellectually equipped to handle classes for the students
in the subject of specialisation of the candidate concerned, in terms of
his/her post graduate degree. Requiring more qualifications, not
connected to to the main qualification in the finer discharge of duties, the
teacher concerned would inevitably be a person of mediocre knowledge of
not excelling in the relevant subject or in law, either. This Court is also at
a loss to understand and perplexed that more than prescription of M.L.,
degree, the insistence of enrollment as advocate. How far enrollment as
advocate is going to be of any academic use in the discharge of duties by
the Assistant Professor, is a conundrum, as no definite or plausible
answers are to be found. In fact, from the entirety of arguments by the
learned counsels, this aspect has not been addressed at all. Hence, the
enrollment as advocate whether could bring any value addition to the pre-
law teacher is a knotty question and till the conclusion of the argument,
the question remained conspicuously unanswered.
79 In fact, the requirement of enrollment as advocate would
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have other consequences. There is every possibility that a candidate with
M.L., degree and enrolled as advocate, may always weighing his/her
options to join the profession, as he is trained and tuned to be a lawyer,
midstream. The possession of law degree and enrollment at the Bar
would invariably act as a catalyst and inducement for the teacher of pre-
law to leave the job of teaching anytime, he/she chooses to leave as per
his/her convenience. This contingency cannot be ruled out at all, in
practical times of today's context. On the other hand, if a candidate with
only post graduate qualification in the relevant subject, which means the
same subject, both at the under graduate and post graduate levels, such
candidate unalloyed focus could only be on the subject of his teaching.
When a candidate tied to the teaching, he/she is bound to make a
qualitative difference in the long run. The teachers with a specialized
degree without the law degree, would be fully focused into teaching and
probably, research too benefiting the students. If the standards of the
legal education is to be protected or improved, the quality of the dedicated
teachers is a sine qua non for its betterment.
80 There are other arguments advanced in regard to the scope
of full time employment of pre-law courses faculty. It was also
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demonstrated before this Court that even as on date, they are required to
work for more than 16 hours which is the minimum hours per week fixed
by the regulations of the UGC. Even assuming that as on date, there is no
scope for the pre-law courses faculty work 16 hours, as contended by
Mr.R.Singaravelan, learned Senior counsel, in the Government Law
Colleges in the State of Tamil Nadu, it is always open to the
administration to divide classes, sections and device methods to increase
the hours of work as per the requirement of the UGC regulations. This
Court has been informed that in Government Colleges as many as 90
students are bunched together in a single section. In such circumstances,
the classes could be divided with less number of students in the teacher-
student ratio as per the guidelines of the UGS. In any event, as rightly
contended by Mr.Ragunathan, learned counsel for the BCI, these matters
are internal management of the Colleges or the University concerned.
Moreover, the Rules of Legal Education issued under the provisions of
the Advocates' Act, 1961, mandate employment of full time faculty
members in core faculty as per Rule 17. This apart, the BCI has
reinforced the mandate of employment of full time faculty members in
pre-law courses by its resolution No.110/2018 dated 14.09.2008, while
approving the Rules as Standards of Legal Education. Therefore, the
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contention as to the scope of work for the pre-law Assistant Professor is
to be discountenanced both on facts and in law.
81 The disputed qualifications when construed not higher
qualifications providing any value addition towards maintaining or
improving the standards of pre law courses, prescription of such
qualifications by the State therefore suffers from the vice of colourable
legislation. No doubt, laying down educational criteria, eligibility and
qualifications for appointment as Assistant Professor etc., are in the
exclusive domain of the State Government or the University concerned.
But, when the policy of the Government is under serious attack, this
Court hardly finds any attempt being made on behalf of the Government
to justify the qualifications prescribed for the pre-law courses in the
Government colleges in the State of Tamil Nadu. Despite several
opportunities afforded and yet no sincere efforts spared in persuading this
Court as to the qualifications prescribed by them. This Court finds a
lackadaisical approach of the Government throughout the hearings of the
case on several occasions. Ultimately, the policies of the State
Government have been left to be defended by the candidates concerned.
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82 In any event, the candidates who have in possession of the
prescribed qualifications as per the Notifications under challenge have
elaborately made submissions through their learned counsels justifying
their qualifications with reference to the posts they are sought to be
recruited. But the fact of the matter is that the objects and reasons behind
the policy decisions need to be explained and justified when the same
come under attack before this Court by the policy makers and not by the
candidates. This Court even otherwise is of the view that having gone
through all the materials and the respective pleadings, no amount of
justification could gain legal acceptance for the following reasons.
83 Now, coming to the pivotal contention, namely the legislative
competence of the State Government to come up with the disputed
qualifications is what ultimately to be examined by this Court in realm of
the constitutional governance, distribution of powers as between the
Centre and the constituent States.
84 In this regard, Mr.Ragunathan, learned counsel for the BCI
has forcefully and pointedly contended that the disputed qualifications are
liable to be declared as unconstitutional and void ab initio as the
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qualifications are repugnant to the BCI Rules of Legal Education, 2008.
He has referred to few decisions and the relevant paragraphs, which had
already been extracted supra, in the earlier part of this decision. The
learned counsel referred to five decisions in all, touching on the nucleus
of the controversy. According to the learned counsel, the BCI has a
predominant role in prescribing qualifications for legal education and this
position is not open to any debate. The learned counsel particularly
referred to paragraph No.14 of the decision reported in 2007 [2] SCC
202 which has been extracted supra. The Hon'ble Supreme Court of
India, in that decision has held that being the Apex Professional Body,
the BCI is concerned with the standards of the legal profession and the
equipment of those who seek entry into that profession. When the BCI
itself has not thought fit to prescribe post graduate degree in law for pre-
law courses, in terms of the Legal Education Rules, 2008, the justification
for prescribing supernumerary qualifications hardly carry any conviction
with this Court. In fact, the learned counsel has stated that after the
enactment of the Advocates' Act, 1961, the jurisdiction for laying down
standards and norms for the legal education had been carved from the
UGC and conferred on the BCI, which is a Body created under the
Advocates' Act, 1961.
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85 In regard to the focal issue of legislative competence, the
learned counsel for the BCI has referred to the Entries in the Seventh
Schedule to the Constitution of India. Entry 66 of List – I in the Union
List and Entry 25 of List III in the Concurrent List.
''Entry 25:- Education, including technical
education, medical education and Universities,
subject to the provisions of entries 63, 64, 65 and
66 of List I : Vocational and Technical training of
labour.''
''Entry 66:- Co-ordination and
determination of standards in institutions for
higher education or research and scientific and
technical institutions.''
In this regard, the learned counsel has relied on a recent decision
reported in 2020 SCC Online SC 699 [cited supra]. The Constitution
Bench in the said decision referred to the observation of the other
Constitutional Bench decision [Modern Dental College case] ''that the
expression used in Entry 66, ''coordination and determination of
standards'' would mean laying down the standards and therefore, when it
comes to prescribing the standards for institutions of higher learning, the
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exclusive domain is given to the Union''.
86 In this case, admittedly, the BCI under the Legal Education
Rules, has not prescribed the disputed qualifications at all. But, at the
same time, the Constitutional Courts have also held that in a shared
legislative field, there is always a space for enacting laws on the subjects
falling both in the Union List as well as in the Concurrent List. In such
situations, the Courts have held doctrine of Pith and Substance need to be
applied, in order to uphold the validity of the legislation. In fact, the
learned counsel for the BCI emphasized this constitutional position when
he relied on paragraph No.9 in the decision of the Apex Court reported in
AIR 1953 SC 375 [cited supra]. The said paragraph has been extracted
supra. In the said decision, the Apex Court has observed that it is the
substance of the Act that is material and not merely the form or outward
appearance, and if the subject-matter in substance is something which is
beyond the powers of that legislature to legislate upon, the form in which
the law is clothed would not save it from condemnation. The Hon'ble
Supreme Court also observed that the legislature cannot violate the
constitutional prohibitions by employing an indirect method. As far as
the present disputation is concerned, the minimum standard prescribed
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by the Central Regulating Body has been retained. Therefore, to that
extent, it cannot be held that there is a direct conflict by the State
Legislation encroaching upon the field of legislation as provided in Entry
66 of the Union List.
87 Be that as it may, what is to be seen in the exceptional
circumstances of the present case is not the action per se in prescription
of the minimum qualification by the State Government, but in
prescription of additional qualifications unconnected to the main
qualifications. When the disputed qualifications are construed to be
unconnected and supernumerary qualifications, the same are to be
declared irrational, unreasonable and arbitrary. Indisputably, there is no
bar in prescription of higher qualifications by the appointing authorities,
particularly, in a shared legislative field like the present one where there
is an interplay of Entry 66 of List I and Entry 25 of List III of the Seventh
Schedule to the Constitution. But, the expression of higher qualification
must be necessarily relate to the qualifications as prescribed by the BCI.
Admittedly, the Legal Education Rules of the BCI prescribed post
graduate degree in the relevant subject as the minimum educational
qualification for the faculty in pre-law courses. Any prescription of
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higher qualification like M.Phil., Ph.D., in the subject concerned is
certainly desirable for enhancing the standards of teaching. In that case,
any statutory provision laying down higher academic norms cannot
attract constitutional controversy. But, unfortunately under the
impression of prescribing higher qualifications, unneeded qualifications
have been prescribed focussing more on law than in the subjects like
Economics, Commerce, Technology etc., in the integrated degree
programme.
88 The qualification post graduate degree in the relevant subject
has been prescribed by the BCI in its Legal Education Rules and the
source of power for such prescription could be traced to Section 7[1][h][i]
of the Advocates' Act, 1961. The relevant provisions of the Advocates'
Act, 1961, as well as the BCI Rules, have also been extracted supra. The
Advocates' Act, 1961 is a fall out of Entries 77 and 78 of List-I. When
prescription of qualification owes its origination in the Entries in List-I,
any further prescription of qualifications not in connection with the said
qualifications will have to be declared as unconstitutional as the State
authority is prohibited from laying down different qualification in terms
of the constitutional scheme of distribution of fields of legislation and
restriction of the power of the State in the shared legislative space.
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89 As a matter of illustration, when a candidate who is qualified
in terms of the minimum qualification laid down by the Central
Regulating Body, in this case, the BCI, yet he/she becomes disqualified
not because any higher qualification prescribed, but because of
prescription of unconnected qualifications. The observations of the latest
Constitution Bench of the Hon'ble Supreme Court reported in 2020 SCC
Online SC 699 [cited supra], in paragraphs 102 to 106, clarifies the
limitation of power while interpreting Entry 66 of the List-I and Entry 25
of List III, which read thus:-
''102. Therefore, the following issues arise
for consideration and determination of this Court
in the present batch of writ petitions/appeals:
1. What is the scope and ambit of Entry 66 of List I?
2. What will be the impact/effect of MCI
Regulations, 2000 framed by the Medical Council
of India in exercise of its powers under Section 33
of the Indian Medical Council Act, 1956?
3. Whether in view of Entry 66 of List I, the State is
denuded of its power to legislate on the manner
and method of the postgraduate medical courses,
more particularly, making special provisions for in-
service candidates in the postgraduate
degree/diploma courses?
4. Whether Regulation 9 of MCI Regulations, 2000,
more particularly, Regulation 9(IV) and 9(VII)
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takes away the power of the States under Entry 25
of List III to provide for a separate source of entry
for in-service candidates seeking admission to
postgraduate medical courses?
5. Whether Regulation 9 of MCI Regulations, 2000
is understood to not allow for the States to provide
for a separate source of entry for in-service
candidates seeking admission to postgraduate
degree courses, the same is arbitrary,
discriminatory and violative of Articles 14 and
19(1) (g) of the Constitution of India, and also
ultra vires of the provisions of the Indian Medical
Council Act, 1956?
6. Whether Regulation 9 is a complete code in itself,
as observed by this Court in the case of Dinesh
Singh Chauhan (supra) affecting the
rights/authority of the States to provide for
reservation and/or separate source of entry for in-
service candidates seeking admission to
postgraduate degree courses?
103. While considering the aforesaid issues,
let us first consider the scope and ambit of Entry 66
of List I - legislative competence of the Union in
exercise of powers under Entry 66, List I of
Schedule VII of the Constitution of India.
104. In the case of Modern Dental College &
Research Centre (supra), a Constitution Bench of
this Court again had an occasion to deal with and
consider Entry 66 List I and Entry 25 List III. After
considering catena of decisions of this Court, more
particularly, the decisions of this Court in the cases
of Gujarat University (supra); R.
Chitralekha (supra); Preeti Srivastava (supra);
and Bharati Vidyapeeth v. State of Maharashtra17,
it is held by this Court that Entry 66 in List I is a
specific entry having a very specific and limited
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scope. It is further observed by this Court that it
deals with “coordination and determination of
standards” in institution of higher education or
research as well as scientific and technical
institutions. The words “coordination and
determination of standards” would mean laying
down the said standards. It is observed that thus,
when it comes to prescribing the standards for such
institutions of higher learning, exclusive domain is
given to the Union. The relevant observations are
in paragraphs 101 to 105, which read as under:
“101. To our mind, Entry 66 in List I is a specific
entry having a very specific and limited scope. It
deals with coordination and determination of
standards in institution of higher education or
research as well as scientific and technical
institutions. The words “coordination and
determination of standards” would mean laying
down the said standards. Thus, when it comes to
prescribing the standards for such institutions of
higher learning, exclusive domain is given to the
Union. However, that would not include conducting
of examination, etc. and admission of students to
such institutions or prescribing the fee in these
institutions of higher education, etc. In fact, such
coordination and determination of standards,
insofar as medical education is concerned, is
achieved by parliamentary legislation in the form
of the Indian Medical Council Act, 1956 and by
creating the statutory body like Medical Council of
India (for short “MCI”) therein. The functions that
are assigned to MCI include within its sweep
determination of standards in a medical institution
as well as coordination of standards and that of
educational institutions. When it comes to
regulating “education” as such, which includes
even medical education as well as universities
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(which are imparting higher education), that is
prescribed in List III Entry 25, thereby giving
concurrent powers to both Union as well as States.
It is significant to note that earlier education,
including universities, was the subject-matter of
List II Entry 11 [“11. “Education” including
universities, subject to the provisions of Entries 63,
64, 65 and 66 of List I and Entry 25 of List III”].
Thus, power to this extent was given to the State
Legislatures. However, this entry was omitted by
the Constitution (Forty-second Amendment) Act,
1976 with effect from 3-7-1977 and at the same
time List II Entry 25 was amended [Unamended
Entry 25 in List III read as:“Vocational and
technical training of labour”]. Education,
including university education, was thus
transferred to the Concurrent List and in the
process technical and medical education was also
added. Thus, if the argument of the appellants is
accepted, it may render Entry 25 completely otiose.
When two entries relating to education, one in the
Union List and the other in the Concurrent List,
coexist, they have to be read harmoniously.
Reading in this manner, it would become manifest
that when it comes to coordination and laying down
of standards in the higher education or research
and scientific and technical institutions, power rests
with the Union/Parliament to the exclusion of the
State Legislatures. However, other facets of
education, including technical and medical
education, as well as governance of universities is
concerned, even State Legislatures are given power
by virtue of Entry 25. The field covered by List III
Entry 25 is wide enough and as circumscribed to
the limited extent of it being subject to List I Entries
63, 64, 65 and 66.
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102. Most educational activities, including
admissions, have two aspects : the first deals with
the adoption and setting up the minimum standards
of education. The objective in prescribing minimum
standards is to provide a benchmark of the calibre
and quality of education being imparted by various
educational institutions in the entire country.
Additionally, the coordination of the standards of
education determined nationwide is ancillary to the
very determination of standards. Realising the vast
diversity of the nation wherein levels of education
fluctuated from lack of even basic primary
education, to institutions of high excellence, it was
thought desirable to determine and prescribe basic
minimum standards of education at various levels,
particularly at the level of research institutions,
higher education and technical education
institutions. As such, while balancing the needs of
States to impart education as per the needs and
requirements of local and regional levels, it was
essential to lay down a uniform minimum standard
for the nation. Consequently, the Constitution-
makers provided for List I Entry 66 with the
objective of maintaining uniform standards of
education in fields of research, higher education
and technical education.
103. The second/other aspect of education is with
regard to the implementation of the standards of
education determined by Parliament, and the
regulation of the complete activity of education.
This activity necessarily entails the application of
the standards determined by Parliament in all
educational institutions in accordance with the
local and regional needs. Thus, while List I Entry
66 dealt with determination and coordination of
standards, on the other hand, the original List II
Entry 11 granted the States the exclusive power to
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legislate with respect to all other aspects of
education, except the determination of minimum
standards and coordination which was in national
interest. Subsequently, vide the Constitution (Forty-
second Amendment) Act, 1976, the exclusive
legislative field of the State Legislature with regard
to education was removed and deleted, and the
same was replaced by amending List III Entry 25
granting concurrent powers to both Parliament and
State Legislature the power to legislate with respect
to all other aspects of education, except that which
was specifically covered by List I Entries 63 to 66.
104. No doubt, in Bharati Vidyapeeth [Bharati
Vidyapeeth v. State of Maharashtra, (2004) 11 SCC
755 : 2 SCEC 535] it has been observed that the
entire gamut of admission falls under List I Entry
66. The said judgment by a Bench of two Judges is,
however, contrary to law laid down in earlier
larger Bench decisions. In Gujarat University
[Gujarat University v. Krishna Ranganath
Mudholkar, AIR 1963 SC 703 : 1963 Supp (1) SCR
112], a Bench of five Judges examined the scope of
List II Entry 11 (which is now List III Entry 25) with
reference to List I Entry 66. It was held that the
power of the State to legislate in respect of
education to the extent it is entrusted to Parliament,
is deemed to be restricted. Coordination and
determination of standards was in the purview of
List I and power of the State was subject to power
of the Union on the said subject. It was held that
the two entries overlapped to some extent and to
the extent of overlapping the power conferred by
List I Entry 66 must prevail over power of the State.
Validity of a State legislation depends upon
whether it prejudicially affects “coordination or
determination of standards”, even in absence of a
Union legislation. In R. Chitralekha v. State of
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Mysore [R. Chitralekha v. State of Mysore, AIR
1964 SC 1823 : (1964) 6 SCR 368], the same issue
was again considered. It was observed that if the
impact of the State law is heavy or devastating as to
wipe out or abridge the Central field, it may be
struck down. In State of T.N. v. Adhiyaman
Educational & Research Institute [State of
T.N. v. Adhiyaman Educational & Research
Institute, (1995) 4 SCC 104 : 1 SCEC 682], it was
observed that to the extent that State legislation is
in conflict with the Central legislation under Entry
25, it would be void and inoperative. To the same
effect is the view taken in Preeti Srivastava [Preeti
Srivastava v. State of M.P., (1999) 7 SCC 120 : 1
SCEC 742] and State of Maharashtra v. Sant
Dnyaneshwar Shikshan Shastra
Mahavidyalaya [State of Maharashtra v. Sant
Dnyaneshwar Shikshan Shastra
Mahavidyalaya, (2006) 9 SCC 1 : 5 SCEC 637].
Though the view taken in State of M.P. v. Nivedita
Jain [State of M.P. v. Nivedita Jain, (1981) 4 SCC
296] and Ajay Kumar Singh v. State of Bihar [Ajay
Kumar Singh v. State of Bihar, (1994) 4 SCC 401]
to the effect that admission standards covered by
List I Entry 66 could apply only post admissions
was overruled in Preeti Srivastava [Preeti
Srivastava v. State of M.P., (1999) 7 SCC 120 : 1
SCEC 742], it was not held that the entire gamut of
admissions was covered by List I as wrongly
assumed in Bharati Vidyapeeth [Bharati
Vidyapeeth v. State of Maharashtra, (2004) 11 SCC
755 : 2 SCEC 535].
105. We do not find any ground for holding
that Preeti Srivastava [Preeti Srivastava v. State of
M.P., (1999) 7 SCC 120 : 1 SCEC 742] excludes
the role of States altogether from admissions. Thus,
observations in Bharati Vidyapeeth [Bharati
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Vidyapeeth v. State of Maharashtra, (2004) 11 SCC
755 : 2 SCEC 535] that entire gamut of admissions
was covered by List I Entry 66 cannot be upheld
and overruled to that extent. No doubt, List III
Entry 25 is subject to List I Entry 66, it is not
possible to exclude the entire gamut of admissions
from List III Entry 25. However, exercise of any
power under List III Entry 25 has to be subject to a
Central law referable to Entry 25.”
(emphasis supplied)
105. In the concurring judgment, Bhanumati, J. in
paragraphs 131 to 134 and 147 to 149, has held as
under:
“131. In order to answer the concern of other
Constitution Framers, Dr Ambedkar went on to
clarify the limited scope of List I Entry 66 (as in the
present form), as proposed by him in the following
words : (CAD Vol. 9, p. 796)
“Entry 57-A merely deals with the maintenance of
certain standards in certain classes of institutions,
namely, institutions imparting higher education,
scientific and technical institutions, institutions for
research, etc. You may ask, “why this entry?” I
shall show why it is necessary. Take for instance,
the BA Degree examination which is conducted by
the different universities in India. Now, most
provinces and the Centre, when advertising for
candidates, merely say that the candidate should
be a graduate of a university. Now, suppose the
Madras University says that a candidate at the BA
Examination, if he obtained 15% of the total marks
shall be deemed to have passed that examination;
and suppose the Bihar University says that a
candidate who has obtained 20% of marks shall be
deemed to have passed the BA degree examination;
and some other university fixes some other
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standard, then it would be quite a chaotic
condition, and the expression that is usually used,
that the candidate should be a graduate, I think,
would be meaningless. Similarly, there are certain
research institutes, on the results of which so many
activities of the Central and Provincial
Governments depend. Obviously, you cannot permit
the results of these technical and scientific
institutes to deteriorate from the normal standard
and yet allow them to be recognised either for the
Central purposes, for all-India purposes or the
purposes of the State.”
132. The intent of our Constitution Framers while
introducing Entry 66 of the Union List was thus
limited only to empowering the Union to lay down a
uniform standard of higher education throughout
the country and not to bereft the State Legislature
of its entire power to legislate in relation to
“education” and organising its own common
entrance examination.
133. If we consider the ambit of the present Entry
66 of the Union List; no doubt the field of
legislation is of very wide import and
determination of standards in institutions for
higher education. In the federal structure of India,
as there are many States, it is for the Union to
coordinate between the States to cause them to
work in the field of higher education in their
respective States as per the standards determined
by the Union. Entry 25 in the Concurrent List is
available both to the Centre and the States.
However, power of the State is subject to the
provisions of Entries 63, 64, 65, and 66 of the
Union List; while the State is competent to legislate
on the education including technical education,
medical education and universities, it should be as
per the standards set by the Union.
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134. The words “coordination” and
“determination of the standards in higher
education” are the preserve of Parliament and are
exclusively covered by Entry 66 of the Union List.
The word “coordination” means harmonisation
with a view to forge a uniform pattern for concerted
action. The term “fixing of standards of institutions
for higher education” is for the purpose of
harmonising coordination of the various
institutions for higher education across the country.
Looking at the present distribution of legislative
powers between the Union and the States with
regard to the field of “education”, that State's
power to legislate in relation to “education,
including technical education, medical education
and universities” is analogous to that of the Union.
However, such power is subject to Entries 63, 64,
65 and 66 of the Union List, as laid down in Entry
25 of the Concurrent List. It is the responsibility of
the Central Government to determine the standards
of higher education and the same should not be
lowered at the hands of any particular State.
xxxxxxxxxxxx
147. Another argument that has been put forth is
that the power to enact laws laying down process of
admission in universities, etc. vests in both Central
and State Governments under Entry 25 of the
Concurrent List only. Under Entry 25 of the
Concurrent List and erstwhile Entry 11 of the State
List, the State Government has enacted various
legislations that inter alia regulate admission
process in various institutions. For instance,
Jawaharlal Nehru Krishi Vishwavidyalaya
Adhiniyam, Rajiv Gandhi Prodyogiki
Vishwavidyalaya Adhiniyam, Rashtriya Vidhi
Sansathan Vishwavidyalaya Adhiniyam, etc. were
established by the State Government in exercise of
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power under Entry 25 of the Concurrent List.
Similarly, the Central Government has also enacted
various legislations relating to higher education
under Entry 25 of the Concurrent List pertaining to
Centrally funded universities such as the
Babasaheb Bhimrao Ambedkar University Act,
1994, the Maulana Azad National Urdu University
Act, 1996, the Indira Gandhi National Tribal
University Act, 2007, etc. The Central Government
may have the power to regulate the admission
process for Centrally funded institutions like IITs,
NIT, JIPMER, etc. but not in respect of other
institutions running in the State.
148. In view of the above discussion, it can be
clearly laid down that power of the Union under
Entry 66 of the Union List is limited to prescribing
standards of higher education to bring about
uniformity in the level of education imparted
throughout the country. Thus, the scope of Entry 66
must be construed limited to its actual sense of
“determining the standards of higher education”
and not of laying down admission process. In no
case is the State denuded of its power to legislate
under List III Entry 25. More so, pertaining to the
admission process in universities imparting higher
education.
149. I have no hesitation in upholding the vires of
the impugned legislation which empowers the State
Government to regulate admission process in
institutions imparting higher education within the
State. In fact, the State being responsible for
welfare and development of the people of the State,
ought to take necessary steps for welfare of its
student community. The field of “higher education”
being one such field which directly affects the
growth and development of the State, it becomes
prerogative of the State to take such steps which
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further the welfare of the people and in particular
pursuing higher education. In fact, the State
Government should be the sole entity to lay down
the procedure for admission and fee, etc. governing
the institutions running in that particular State
except the Centrally funded institutions like IIT,
NIT, etc. because no one can be a better judge of
the requirements and inequalities-in-opportunity of
the people of a particular State than that State
itself. Only the State legislation can create equal
level playing field for the students who are coming
out from the State Board and other streams.”
(emphasis supplied)
106. Thus, as held by the Constitution Bench
of this Court in the case of Modern Dental
College (supra), in which this Court considered
catena of earlier decisions of this Court dealing
with the scope and ambit of Entry 66 List I, Entry
66 of List I is a specific entry having a very specific
and limited scope; it deals with “Coordination and
Determination of Standards” in institutions of
higher education or research as well as scientific
and technical institutions. It is further observed
that the words “Coordination and Determination of
Standards” would mean laying down the said
standards and therefore when it comes to prescribe
the standards for such institutions of higher
learning, exclusive domain is given to the Union. It
is specifically further observed that that would not
include conducting of examination etc. and
admission of students to such institutions or
prescribing the fee in these institutions of higher
education, etc. Thus, in exercise of powers under
Entry 66 List I, the Union cannot provide for
anything with respect to reservation/percentage of
reservation and/or even mode of admission within
the State quota, which powers are conferred upon
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the States under Entry 25 of List III. In exercise of
powers under Entry 25 List III, the States have
power to make provision for mode of admissions,
looking to the requirements and/or need in the
concerned State.''
90 From the above, it could be seen that the power of the State
Legislature is not altogether excluded, but it is restricted and
circumscribed to the Central enactment. The emphasis highlighted by the
Apex Court is the determination of uniform minimum standards in higher
education nationwide.
91 When the above ruling is to be applied in this case, the
requirement of the minimum qualification of ML Degree and enrollment
as advocate is a clear instance of varying the minimum standards fixed by
the Central body. In that view of the matter and to that extent, the two
Government Orders, viz., G.O.Ms.No.1349 dated 19.11.1985 and
G.O.Ms.No.264 dated 20.12.2005, are to be necessarily held as invalid as
it originated from colourable legislation.
92 As a matter of fact, the learned counsel for the BCI has very
rightly and importantly cited three Constitution Bench decisions apart
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from two other decisions of the Hon'ble Supreme Court. The decisions
cited are, [1] AIR 1953 SC 375 [CB] ; [2] AIR 1968 SC 888 [CB] ; [3]
2007 [2] SCC 202 ; [4] 2009 [4] SCC 590 ; and [5] 2020 SCC Online
SC 699 [CB]. The relevant paragraphs of the decision have been
extracted supra. From the cumulative reading of the decisions of the
Hon'ble Supreme Court of India and the relevant Constitutional Entries in
the Seventh Schedule of the Constitution and the Doctrine of Pith and
Substance in terms of Article 246 of the Constitution of India, this Court
has to come to an inexorable conclusion that the prescription of additional
qualifications, viz., M.L.Degree, and enrollment as advocate, suffers
from lack of legislative competence.
93 The qualifications prescribed by the State authority may
appear to be in addition to minimum standards laid down by the Central
Regulating body, but the qualifications being ex facie irrational, arbitrary
and unreasonable are in reality in conflict with the minimum standard
fixed by the Central Regulating Body nationally. Further, irrationality and
arbitrariness would also result in exclusion of the whole lot of candidates
from even consideration or participation in the recruitment process, even
though they are qualified in terms of the Central Regulating Body. This
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Court has to necessarily conclude that the additional qualifications
prescribed, run afoul of the qualifications prescribed by the Central
Regulating Authority. viz., the BCI and the qualifications thus, are
repugnant to the Central Legislation and cannot pass the test of
constitutional scrutiny.
94 The trajectory of the main judicial discourse thus for is with
regard to the main challenge in the writ petitions. As outlined in the
earlier portion of the decision, there are two other issues that need to be
decided in the paramount interest of maintaining exemplary standard in
the field of legal education. There are two worrying scenarios that are
portrayed in the course of submissions by the learned counsels. Some of
the candidates have obtained their post graduate degree, though in the
relevant subject as per the Notification, but had obtained their degrees
through Distance Education mode. This Court, of course, cannot have
any quarrel, as degrees obtained through Distance Education mode, are
recognised, as held by the Apex Court as well as the Full Bench of this
Court referred to supra. Despite the recognition of the degrees, this Court
has a strong misgiving as to the suitability of such candidates for
appointment as faculty members. Although the validity of a degree is
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beyond the pale of any doubt, and yet the appointments as faculty with
degrees obtained through Distance Education mode or correspondence
required to be clarified.
95 Any recruitment to a post of teaching faculty in higher
education or any other education for that matter is not intended to provide
job opportunities to the potential candidates who apply for consideration.
The purpose of appointments of teaching faculty is towards fulfillment of
achieving higher academic standards in any field of education. In this
case, the focus is on the quality of the legal education. The quality of
education could only be measured through the type of teachers who are
appointed to handle the academics. If persons with no experience in
campus life having not studied and earned their degrees in the regular
institutions/Colleges, may not said to have experienced the institutional
academic culture and the expectation of the present generation of student
community. Further, if such candidates are appointed as regular faculty in
a College campus, he/she would, in all probability, unable to come to
terms with the expectations of the student community.
96 Moreover, whatever be the course content of the degrees
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obtained through the Distance Education mode, in the absence of regular
class attendance and listening to lectures of the regular Assistant
Professors / Associate Professors as the case may be, interaction with
fellow students the knowledge gained from regular campus education
cannot be the same as to the knowledge gained through independent
study, in isolation, of materials through Distance Education mode.
Although this Court is conscious of the fact that the Distance Education
mode or correspondence degrees have become social imperatives,
considering the lack of access to regular education by the vast majority of
the disadvantaged class, yet in the larger interest of institutional growth of
higher education, the degrees obtained through Distance Education mode
or correspondence cannot be considered as a valid degree for the purpose
of appointment to the post of Assistant Professors in pre law course.
97 It is needless to mention that the regular campus education
shapes the students' character and intellectuality towards acquiring better
cognitive skills. The campus life provides a plenty of opportunities of
interaction with the fellow students, lecturers and may at times provide
life changing opportunities of shaping the academic orientation of many
students. However, the degree holders from Distance Education mode
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would certainly but unfortunately suffer disadvantage on this account.
There may be exceptions to these rules but the fixation of eligibility
criteria are not to be influenced by the exception to the rule.
98 In the realm of maintaining high standard in Legal
Education, how the postgraduate degree holders from Distant Education
mode can be an effective faculty member for taking regular classes in the
campus, a pertinent doubt but not dispelled to the satisfaction of this
Court. For such candidate, the campus atmosphere is an alien experience
and may lead to diffidence. In such scenario, it is too much to expect
great quality of pedagogical disposition from such faculty. On one hand,
there is a hue and cry for minimum standards in higher education and on
the other, paradoxically appointments are sought to be made with
candidates qualified through distance education mode. In fact, invariably
such degrees are earned only for the purpose of furthering their job
prospects in the employment market. Such degree holders, principally
look upon the appointment as a job opportunity as they go about
discharging their duties perfunctorily with little passion towards
achieving academic excellence.
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99 In regard to above important issue, this Court finds that none
of the decisions cited and relied upon by the learned counsels supporting
the existing qualifications touch upon this aspect. Although the degrees
obtained through distance education mode is considered to be recognised
and valid, in terms of the rulings of the Courts, it is still open to the
appointing authority to prescribe the mode of study for appointment as
faculty members and this Court does not see any bar on the power of the
appointing authority in laying down the requirement. Thus the
postgraduate degree obtained through distance education mode or
through correspondence may not be valid enough for appointment as
faculty in the pre law courses.
100 The other crucial aspect is the cross major degrees. This
aspect is more serious than the earlier one. When the Notification
prescribed postgraduate degree in the relevant subject as the minimum
qualification, it is to be implicitly understood that the undergraduate
degree should also be in the same subject as that of the postgraduate
degree. Mr.G.Sankaran, learned counsel appearing for some of the
candidates who are in possession of cross major degrees contended that
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what is prescribed in the subject Notifications or the Rules is only
postgraduate degree in the relevant subject and that requirement is
fulfilled by the candidates concerned. This Court considers the
submission as a specious argument. When a postgraduate degree is the
minimum qualification for a teaching faculty, obtaining only postgraduate
degree in the relevant subject and claiming eligibility on that account is a
clear attempt to hoodwink and get around the system due to lack of
clarity on the issue. This Court simply cannot comprehend the quality of
the teacher if he/she has two degrees in two different subjects and get
appointed as Assistant Professors for taking classes in major subjects like
Economics, Commerce, Technology, Business Administration, etc.
101 It is needless to mention that a person with a two year
postgraduate degree alone in the relevant subject, cannot claim to have
the depth of knowledge as in the case of person studied both
undergraduate and postgraduate degrees in the same subject. The
candidates with two degrees in different subjects at undergraduate and
postgraduate levels, could only said to be having fragmented knowledge
in two different subjects with no profound development of their cognitive
function in any particular subject. By all means, such candidates with
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cross degrees ought to have been not included as eligible persons in the
Notification. It is unfortunate that such an important issue has not been
clarified in the Notifications. Whether the omission is deliberate or
inadvertent is again not clarified on behalf of the State Government. But,
in any event, the cross degrees obtained by the candidates, in the
considered view of this Court, cannot said to be a valid qualification and
hence, such of those candidates who have such cross major viz.,
undergraduate degree in different subject than the subject of study at the
postgraduate level are not to be considered as eligible for the subject
appointments. In order to save the existing standards and also to ensure
improvement in the standards of legal education in future, it must be
ensured that persons with degrees obtained through distance education
mode and with cross major degrees are to be declared as not qualified,
particularly in the total absence of any clarification or justification
emanating from the Government.
102 Further, when the Central Regulating Body prescribed the
postgraduate qualification in the relevant subjects, it is to be peremptorily
understood that degree at the undergraduate level ought to be in the same
subject.
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103 Finally, coming back to the main challenge, when a
candidate is mandated to have two disjointed degrees, the adverse impact
of such insistence would not reflect on the quality and the depth of
knowledge of the candidate with such degrees. In all probability, the
degree holders in the relevant subject as well as in law, will suffer
deflection of their intellectual growth, lacking single dedicated direction.
They will also have the opportunity in pursuing two avenues of prospects
diluting their energy, focus and enthusiasm towards a particular
specialization. Only a focused specialization in a particular subject would
benefit the student community, as the purpose of education is to open the
windows of the minds as the saying goes. Moreover, the candidates with
two different qualifications are like a a proverbial jack of
all trades and Master of none. The job of a pedagogue is too important to
trifled with. It would be a travesty if persons with unsure academic
credentials are considered as qualified and eligible for appointment in
teaching posts, merely on the basis of the paper degrees obtained by
them.
104 As far as the case laws cited on behalf of the counsels,
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particularly Mr.R.Singaravelan, learned Senior Counsel, the decisions are
no doubt authoritative pronouncements on various subjects like what is
arbitrariness, the concept of legitimate expectation, prospective
overruling, bar against negative equality and more importantly the power
of Courts in interfering in academic matters etc. But all the decisions are
to be held not applicable, as the Court eventually finds at the end of the
our quest that the action of the State authority which gave rise to the
controversy is a transgression of power vested, in terms of the scheme of
the Constitution.
105 For all the above said reasons, the qualifications, viz., M.L.,
degree and enrollment as advocate, as prescribed in the impugned
Notifications, in addition to the postgraduate degree in the relevant
subject for appointment to the post of Assistant Professor for pre law
course in the Government Law Colleges in the State of Tamil Nadu are
declared as illegal, as the same suffer from patent irrationality,
unreasonableness and arbitrariness.
106 More importantly, the disputed qualifications are in effect
inconsistent with the Legal Education Rules, 2008 which have been
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framed by the Bar Council of India in terms of the powers of the
Advocates Act, 1961 and therefore, the Government Orders, viz.,
G.O.Ms.No.1349 and G.O.Ms.No.264 dated 19.11.1985 and
20.12.2005, are hereby declared as illegal and unconstitutional as the
same are repugnant to the minimum standards laid down by the BCI in
the Legal Education Rules, 2008, in terms of Section 7(1)(h)(i) read with
Section 49(af) and (d) of the Advocates Act, 1961.
107 The candidates who have obtained their Masters degree
through Distance Education mode or by Correspondence are declared as
ineligible for appointment as Assistant Professors [Pre Law], and so also
the candidates with cross major degrees. It is however made clear that
appointment of candidates, if any, already made, pursuant to the
impugned Notifications of the year 2014 and 2017-2018, the same shall
not be affected by this ruling.
108 The State authorities are directed to revisit the entire
eligibility criteria for appointment to the post of Assistant Professor or
any other post in the teaching faculty in respect of the Government Law
Colleges in the State of Tamil Nadu. The State authorities are directed to
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conform to the minimum standards fixed by the BCI and expedite the
process of recruitment, in order to avoid any academic dislocation.
109 All the writ petitions and the review petition stand disposed
of accordingly. No costs. Consequently, connected miscellaneous
petitions are closed.
[N.K.K., J.] [V.P.N., J.]
19.08.2021
Index : Yes
Internet : Yes
Speaking Order : Yes
AP/Sgl/cs
N.KIRUBAKARAN, J.,
AND
V.PARTHIBAN, J.,
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AP/Sgl
Common Order in
WP.Nos.19534/2018 etc batch.
19.08.2021
http://www.judis.nic.in
