Madras High Court
I.Preetha vs The University Grants Commission on 25 June, 2021
W.P(MD)No.6764 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.06.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.6764 of 2021
and
W.M.P(MD)Nos.5205, 5206 & 8081 of 2021
I.Preetha ... Petitioner
vs.
1.The University Grants Commission,
Rep. by its Secretary,
Bahadur Shah Zafar Marg,
New Delhi – 110 002.
2.The Manonmaniam Sundaranar University,
Rep. by its Registrar,
Abishekapatti,
Tirunelveli – 627 012.
3.The Chairman,
S.T Hindu College, Nagercoil,
Kanyakumari District – 629 002. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, to call for the records relating
to the impugned proceedings issued by the second respondent
Manonmaniam Sundaranar University in MSU/R/CDC/A3/315/Q.A/A.P (S.F),
dated 09.03.2021, quash the same and further direct the second
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W.P(MD)No.6764 of 2021
respondent University to approve the qualification of the petitioner to the
post of Assistant Professor in Tamil in the third respondent College, namely,
S.T Hindu College, Nagercoil, Kanyakumari District.
For Petitioner : Mr.S.Xavier Rajini
For R – 1 : Mr.Maharajan
For R – 2 : Mr.M.Mahaboob Athiff
ORDER
The petitioner has filed the present Writ Petition, to quash the
impugned proceedings of the second respondent Manonmaniam Sundaranar
University, dated 09.03.2021, and to direct the second respondent
University to approve the qualification of the petitioner to the post of
Assistant Professor in Tamil in the third respondent College, namely, S.T
Hindu College, Nagercoil, Kanyakumari District.
2.According to the petitioner, she belongs to Other Backward Class
and obtained 50% of marks in Under Graduate and Post Graduate Degree.
She is fully eligible to be appointed as Assistant Professor. Further, she
passed S.S.L.C in April 1997, Higher Secondary in March 1999, B.A (Tamil)
in April, 2006, M.A (Tamil) in December 2006, B.Ed in April 2008, M.Phil in
August 2009 and Ph.D in July 2015. The petitioner studied M.A (Tamil) alone
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W.P(MD)No.6764 of 2021
under Distance Education Scheme and all other Degrees are under Regular
scheme and hence, she is eligible to be appointed as Assistant Professor in
Tamil in anyone of the recognized College.
3.While so, the petitioner was appointed as Assistant Professor in the
third respondent College on 01.07.2017 under Self-Finance Scheme. After
appointment of the petitioner, the third respondent College submitted a
proposal to the second respondent University on 28.12.2020 for approval of
qualification of the petitioner. Since no order was passed, the petitioner has
sent a representation again on 02.02.2021, for approval of her qualification
for appointment to the post of Assistant Professor in Tamil. The second
respondent has not passed any order. Hence, the petitioner filed a Writ
Petition in W.P(MD)No.4478 of 2021 for a direction to the second
respondent University to approve the qualification of the petitioner to the
post of Assistant Professor in Tamil in the third respondent College. This
Court, by an order, dated 04.03.2021, directed the second respondent to
consider the representation of the petitioner. The second respondent, by the
impugned order, dated 09.03.2021, declined to approve the qualification of
the petitioner. Challenging the same, the petitioner has come out with the
present Writ Petition.
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W.P(MD)No.6764 of 2021
4.The learned counsel appearing for the petitioner submitted that the
petitioner has studied M.A (Tamil) alone under Distance Education Scheme
and the other Degrees are under Regular Scheme, which are as follows:-
Sl.No. Studies Completed the Degree
in the Year
1. S.S.L.C April, 1997
2. Higher Secondary School March, 1999
3. B.A (Tamil) April, 2006
4. M.A (Tamil) December, 2006
(under Distance
Education Scheme)
5. B.Ed April, 2008
6. M.Phil August, 2009
7. Ph.D July, 2015
The petitioner joined B.A (Tamil) in June, 1999 and completed the course in
May 2002 itself. However, she has not passed one subject at the time of
completing her course due to her marriage and subsequent birth of child.
She passed the said subject in April, 2006. The petitioner joined M.A (Tamil)
in June, 2003 under Distance Education Scheme (OUS) and completed the
said course M.A (Tamil) in June 2005 and passed all the subjects in
December, 2006. The petitioner has not studied B.A (Tamil) and M.A (Tamil)
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W.P(MD)No.6764 of 2021
in the same academic year and simultaneously. The petitioner studied
10 + 2 + 3 pattern, as per the guidelines issued by the University Grants
Commission and studied M.A (Tamil) under Distance Education Scheme in
Annamalali University. The learned counsel appearing for the petitioner
further submitted that M.A (Tamil) Degree obtained by the petitioner is
valid, as she studied under the pattern 10 + 2 + 3. The first respondent
University Grants Commission has not imposed any restriction for doing two
degrees simultaneously. In view of the same, the impugned order, dated
09.03.2021, passed by the second respondent, is arbitrary and illegal and
the same is liable to be set aside.
5.In support of his contention, the learned counsel appearing for the
petitioner relied on the Judgments of the Division Bench of this Court
reported in 2016 Writ L.R 844 [Tamil Nadu Public Service
Commission Vs. K.V.Rajkumar and others] and W.A(MD)No.1433 of
2017, dated 28.11.2017 [Deepa @ Bhagavathi Vs. The Chairman,
Teachers Recruitment Board].
6.Mr.M.Mahaboob Athiff, learned counsel appearing for the second
respondent submitted that the petitioner obtained both B.A (Tamil) and
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W.P(MD)No.6764 of 2021
M.A(Tamil) Degrees in the same year. Without basic Under Graduate degree,
a person cannot join a Post Graduate degree. In the present case, the
petitioner without passing B.A (Tamil), joined M.A (Tamil) course and
obtained both the degrees in the year 2006. As per UGC norms and
Judgment of this Court and the Hon'ble Apex Court, the petitioner is not
qualified for being appointed as Assistant Professor. The expert of the
second respondent University, considering the entire materials, has taken
the decision, which is not illegal. In support of his contention, the learned
counsel appearing for the second respondent relied on the Judgment of the
Hon'ble Apex Court reported in 2009 (4) SCC 590 [Annamalai
University Vs. Secretary to Government, Information and Tourism
Department and others] and the relevant portion of the said Judgment
reads as follows:-
“29.Indisputably, UGC in exercise of the powers conferred upon it
by clause (f) of sub-section (1) of Section 26 of the UGC Act, made the
1985 regulations. A notification in this behalf was published by the UGC
on 25.11.1985. It, however, was given effect from 1.1.1986.
We may notice some of the provisions of 1985 Regulations.
"2. Admission/Students:-(1) No student shall be eligible for
admission to the 1st Degree Course through non-formal/distance
education unless he has successfully completed 12 years schooling
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through an examination conducted by a Board/University. In case there
is no previous academic record, he shall be eligible for admission if he
has passed an entrance test conducted by the University provided that
he is not below the age of 21 years on July 1 of the year of admission.
(2) No student shall be eligible for the award of the first degree
unless he has successfully completed a three year course; this degree
may be called the B.A./B.Sc./B.Com. (General/ Honours/ Special)
degree as the case may be: Provided that no student shall be
eligible to seek admission to the Master's Course in these faculties, who
has not successfully pursued the first Degree Course of three years
duration:
Provided further that, as a transistory measure where the
universities are unable to change over to a three year degree course,
they may award a B.A./B.Sc./B.Com. (Pass) degree on successful
completion of two years course, but that no student of this stream shall
be eligible for admission to the Master's course unless he has
undergone a further one year bridge course and passed the same. The
three year degree course after 10+2 stage should in no case be termed
as B.A./B.Sc./B.Com. (Pass) degree."
6. Information.- Every University providing instruction through
non-formal/distance education shall furnish to the University Grants
Commission information relating to the observance of these Regulations
in the form prescribed for the purpose. The information shall be
supplied to the University Grants Commission within 60 days of the
close of the academic Year.
7. The University Grants Commission shall have the right to grant
relaxation to a university in regard to the date of implementation or for
admission to the first or second degree courses or to give exemption for
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W.P(MD)No.6764 of 2021
a specified period in regard to other clauses in the regulations on the
merit of each case."
Regulations 6 and 7 were renumbered as Regulations 7 and 8 at a later
stage.
56.Grant of relaxation cannot be presumed by necessary
implication only because UGC did not perform its duties. Regulation 2 of
the 1985 Regulations being imperative in character, non compliance
thereof would entail its consequences. The power of relaxation
conferred on UGC being in regard the date of implementation or for
admission to the first or second degree courses or to give exemption for
a specified period in regard to other clauses in the regulation on the
merit of each case do not lead to a conclusion that such relaxation can
be granted automatically. The fact that exemption is required to be
considered on the merit of each case is itself a pointer to show that
grant of relaxation by necessary implication cannot be inferred. If
mandatory provisions of the statute have not been complied with, the
law will take its own course. The consequences will ensue.
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
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W.P(MD)No.6764 of 2021
such degrees, in our opinion, could not have validated an invalid act.
The degrees become invalidated in terms of the provisions of 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.”
7.Heard the learned counsel appearing on either side and perused the
entire materials available on record.
8.The issue has to be decided in the Writ Petition is whether
M.A (Tamil) Degree obtained by the petitioner through Open University
System without possessing Under Graduate Degree B.A (Tamil) is valid for
being appointed as Assistant Professor.
9.It is an admitted fact that the petitioner studied 10 + 2 + 3 pattern
system, but the petitioner has completed B.A (Tamil) Degree course in the
year 2002, but passed in all the subject only in April, 2006. Before passing
B.A (Tamil), the petitioner joined M.A (Tamil) course in 2003 and completed
the course in June, 2005 and the petitioner passed all the subjects and
obtained Degree through Open University System in December, 2006. The
validity of P.G Degree obtained without basic degree of B.A (Tamil) was
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W.P(MD)No.6764 of 2021
considered by the Division Bench of this Court reported in 2008 (3) MLJ
255 [N. Ramesh vs Sibi Madan Gabriel and others] and the Division
Bench of this Court, after elaborate consideration, held that P.G Degree
obtained through Open University Scheme without a basic U.G Degree is not
valid. The matter went up to the Hon'ble Apex Court and the Hon'ble Apex
Court confirmed the Judgment of the Division Bench of this Court reported
in 2009 (4) SCC 590 [Annamalai University Vs. Secretary to
Government, Information and Tourism Department and others]. It is
also relevant to extract paragraph Nos.42, 50 & 51 and 58 of the said
Judgment herein:-
“42.The provisions of the UGC Act are binding on all Universities
whether conventional or open. Its powers are very broad. 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 standards and the co- ordination 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 hereinbefore that the
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functions of the UGC are all pervasive in respect of the matters specified
in clause (d) of sub-section (1) of Section 12A and clauses (a) and (c) of
sub- section (2) thereof.
50.UGC Act, thus, having been enacted by the 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
learned Solicitor General that two Acts operate in different fields,
namely, conventional university and Open University. 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.
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 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.”
10.The contention of the learned counsel appearing for the petitioner
that a person can simultaneously undergo two Degrees, is not advancing
the case of the petitioner, as in the Judgment relied on by the learned
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counsel appearing for the petitioner, the person pursued two Degrees
simultaneously with necessary basic qualification and hence, the ratio in the
Judgment are not applicable to the facts of the present case, as the
petitioner studied M.A (Tamil) without basic Degree of B.A (Tamil). In view
of the Judgment of the Division Bench of this Court reported in 2008 (3)
MLJ 255 [N. Ramesh vs Sibi Madan Gabriel], confirmed by the Hon'ble
Apex Court reported in 2009 (4) SCC 590 [Annamalai University Vs.
Secretary to Government, Information and Tourism Department and
others], there is no error in the impugned order passed by the second
respondent, dated 09.03.2021.
11.For the above reasons, this Writ Petition is dismissed. No costs.
Consequently, connected Miscellaneous Petitions are dismissed.
25.06.2021
Index : Yes
Internet : Yes
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W.P(MD)No.6764 of 2021
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate / litigant concerned.
To
1.The University Grants Commission,
Rep. by its Secretary,
Bahadur Shah Zafar Marg,
New Delhi – 110 002.
2.The Manonmaniam Sundaranar University,
Rep. by its Registrar,
Abishekapatti,
Tirunelveli – 627 012.
3.The Chairman,
S.T Hindu College, Nagercoil,
Kanyakumari District – 629 002.
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W.P(MD)No.6764 of 2021
V.M.VELUMANI,J.
ps
W.P(MD)No.6764 of 2021
25.06.2021
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