Mali Ram Hindala S/O Chatra Ram ... vs The State Of Rajasthan
2021 Latest Caselaw 7533 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

               D.B. Civil Writ Petition No. 307/2021

1.   Mali Ram Hindala S/o Chatra Ram Hindala, Aged About 35
     Years, R/o Vpo Rajpura Noshal, Via Mandha Surera,
     District Sikar (Raj.).
2.   Dr. Ankur Sharma S/o Omprakash Sonkholiya, Aged
     About 31 Years, R/o Ward No.17, Opp. Sarafa Shivalya,
     Ratangarh, Churu (Raj.).
3.   Dr. Navneet Swami S/o Harish Kumar Swami, Aged About
     32 Years, R/o 324, Kasumbi Jakhla, Nagaur (Raj.).
4.   Sunil Kumar S/o Banshidhar, Aged About 30 Years, R/o P-
     31, Shyam Vihar, Nangal Siras, Jaipur (Raj.).
5.   Bajrang Sharma S/o Nemi Chand Sharma, Aged About 33
     Years,     R/o    A-28,       Parshnathpuram,             Behind     Exotica
     Marriage Garden, Near Canal Road, Kunhari, Kota (Raj.).
                                                                  ----Petitioners
                                   Versus
1.   The State Of Rajasthan, Through Its Principal Secretary,
     Department        Of      Higher        And       Technical     Education,
     Secretariat, Jaipur (Raj.).
2.   The   Secretary,        Department          Of    Personnel,     Govt.    Of
     Rajasthan, Jaipur.
3.   The Commissioner, College Education, Jaipur.
4.   The Rajasthan Public Service Commission, Through Its
     Secretary, Ajmer
                                                                ----Respondents

Connected With D.B. Civil Writ Petition No. 15064/2020

1. Dr. Sunil Chhimpa S/o Shri Shiv Bhagwan, Aged About 34 Years, Resident Of 6/284, Malviya Nagar, Jaipur-302004 (Raj.) (Sub. Microbiology)

2. Dr. Raghunandan Singh Nathawa S/o Shri Ram Singh Nathawat, Aged About 40 Years, Resident Of 1, Jagannathpura, Parivahan Nagar, Khatipura, Jaipur (Sub.

     Biotechnology)




                                            (2 of 15)                 [CW-307/2021]

3. Gaurav Sharma S/o Shri Balkrishan Sharma, Aged About 34 Years, Resident Of B-56, Hari Marg, Malviya Nagar, Jaipur (Sub. Microbiology)

4. Pratibha Goyal D/o Shri Mahendra Kumar Gupta W/o Shri Satyendra Gupta, Aged About 32 Years, Resident Of 1-G- E-22, Babji Nagar, Baran At Present 347-A, Gurunanakpura, Rajapark, Jaipur (Sub. Microbiology)

5. Dr. Uzma Rani D/o Sami Uddin W/o Moin Uddin, Aged About 35 Years, Resident Of H.no. 1094, Hiran Walon, Ghat Gate, Jaipur (Sub. Biotechnology)

6. Vivek Bharti S/o Shri Jodha Ram, Aged About 31 Years, Resident Of 33-34, Balaji Vihar, Rampura Road, Mansarovar, Jaipur (Sub. Biotechnology)

7. Mohammad Faruq S/o Shri Khushi Mohammad, Aged About 34 Years, Resident Of C/o Ge Mes Sadhuwali Cantt, Sriganganagar (Sub. Microbiology)

8. Asmita Singh D/o Shri Sanjay Singh, Aged About 31 Years, Resident Of Sector-13, House No. 470, Malviya Nagar, Jaipur (Sub. Biotechnology)

9. Dr. Beena Kanwar Shekhawat S/o Shri Ramavtar Singh Shekhawat, Aged About 32 Years, Resident Of 997, Rani Sati Nagar, Jaipur (Sub. Biotechnology)

10. Dr. Riddhu Palawat D/o Shri Bihari Singh W/o Shri Bhairu Singh, Aged About 37 Years, Resident Of D-44, Dev Nagar, Murlipura, Jaipur (Sub. Biotechnology)

11. Dr. Robin Marwal S/o Shri Laxmi Narayan, Aged About 35 Years, Resident Of 72, Vikas Nagar, Kalwar Road, Jhotwara, Jaipur (Sub. Biotechnology)

12. Dr. Ravi Agarwal S/o Shri Ashok Kumar Agrawal, Aged About 31 Years, Resident Of 171/251, Pratap Nagar, Sanganer, Jaipur (Sub. Nanotechnology)

13. Dr. Rajesh Kumar Meena S/o Shri Hansi Ram Meena, Aged About 30 Years, Resident Of 6Mb/379, Ig Nagar, Jaipur (Sub. Plant Biotechnology)

14. Dr. Jitendra Kumar Barupal S/o Shri Multana Ram Barupal, Aged About 33 Years, Resident Of 42, Ambedkar Colony, Jaisalmer (Sub. Biotechnology)

15. Dr. Devender Kumar S/o Shri Bihari Lal, Aged About 30 Years, Resident Of Vpo Kohla, District And Tehsil Hanumangarh (Sub. Microbiology)

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16. Dr. Hari Ram S/o Shri Prem Kumar, Aged About 35 Years, Resident Of Village Chak 1 Apd Post Office Sakh Chainpura, Tehsil Vijai Nagar, Sringanagar (Raj.) (Sub. Microbiology)

17. Chinky Gupta D/o Shri Tara Chand Gupta W/o Shri Nitin Khandelwal, Aged About 32 Years, Resident Of 101, Narvada Apartment, Chetak Marg, Pratap Nagar, Sanganer, Jaipur (Sub. Microbiology)

18. Dr. Ruchi Kedia D/o Shri Roop Narain Khedia, Aged About 32 Years, Resident Of 20, New Ahinsa Nagar, Maharana Pratap Setu Marg, Chamti Kheda Road, Chittorgarh (Sub. Biotechnology)

19. Dr. Vinod Kumar Bairwa S/o Shri Nathu Lal Bairwa, Aged About 37 Years, Resident Of Plot No. 369. Gali No. 10, Barkat Nagar, Tonk Phatak, Jaipur (Sub. Biotechnology)

20. Dr. Kumar Sambhav Verma S/o Shri Amar Lal Verma, Aged About 39 Years, Resident Of Post Master Q.no. 111/111 P And F Colony, Dadabari, Kota (Sub. Biotechnology)

21. Dr. Gajendra Singh S/o Shri Shyam Singh, Aged About 34 Years, Resident Of 7 Ksb, Ganganagar (Sub. Biotechnology)

22. Dr. Lal Singh S/o Shri Gauri Shankar Verma, Aged About 35 Years, Resident Of Village Dhani Khokharan, Tehsil Bhadra, District Hanumangarh (Sub. Biotechnology)

23. Dr. Abhishek Raj Agarwal S/o Shri Dharam Chand Gupta, Aged About 34 Years, Resident Of 14, Karamchari Colony, Gangapurcity, District Sawaimadhopur (Sub. Biotechnology)

24. Dr. Chetna Pradhan D/o Shri Radheshyam Sharma W/o Shri Ankit Jain, aged about 1-Ta-7, Sector-1, Jawahar Nagar, Jaipur (Sub. Environment Science)

25. Dr. Amrit Daiya S/o Shri Mohan Lal Daiya, Aged About 34 Years, Resident Of Sector B-120, Todi Nagar, Sikar (Sub. Biotechnology)

26. Dr. Yogendra Nagar S/o Shri Indraraj Nagar, Aged About 31 Years, Resident Of Sheetala Mata Ki Gali, Village Genta, Teh-Pipaldha, Dist Kota-325004 (Sub.

      Biotechnology)





                                            (4 of 15)                [CW-307/2021]

27. Dr. Sajjan Kumar Kanwaria S/o Shri Rohitashva Kumar, Aged About 34 Years, Resident Of Ward No. 16, Jyoti Nagar, Surajgarh, Jhunjhunu (Sub. Biotechnology)

28. Dr. Neha Grover Dhawan D/o Shri B.k. Grover W/o Shri Nikhil Dhawan, Resident Of 31, Railway Housing Society, Mal Road, Kota

29. Dr. Tara Chand Saini S/o Shri Badri Prasad Saini, Aged About 37 Years, Resident Of Village Dharmpura, Post Dayra (Khandda) Sikar (Sub. Environment Science)

30. Dr. Amit Pareek S/o Shri Nathmal Joshi, Aged About 37 Years, Resident Of H.no. 78, Ward No. 4, Thiory Colony, Raisingh Nagar, Sriganganagar (Sub. Microbiology)

----Petitioners

Versus

1. State Of Rajasthan, Through The Principal Secretary, Higher Education Department, Government Secretariat, Jaipur (Raj.)

2. The Commissioner College Education, Srk Shiksha Sankul, Opp. Ots, Jaipur

3. Rajasthan Public Service Commission, Through It Secretary, Ghooghra Ghati, Ajmer

4. University Grants Commission, Through Its Secretary, New Delhi

----Respondents

For Petitioner(s) : Mr. Vigyan Shah with Mr. Harendra Neel Mr. Tanveer Ahamad For Respondent(s) : Mr. S.S. Raghav, AAG Mr. Prakhar Gupta on behalf of Dr. V.B. Sharma, AAG Mr. Nitin Jain Mr. Neeraj Batra

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS

Judgment

(5 of 15) [CW-307/2021]

13/12/2021

These petitions arising out of similar facts have been heard

together and are being disposed of by this common judgment. For

convenience facts may be noted from Civil Writ Petition

No.307/2021. The grievance of the petitioners is that the State

Government has not followed the UGC guidelines contained in its

Regulations dated 18.07.2018 in relation to the recruitment for

the post of Assistant Professor advertised by the Rajasthan State

Public Service Commission on 18.12.2020.

The petitioners seek appointment on the post of Assistant

Professor Botany or Zoology as the case may be. They point out

that earlier regulations of UGC called UGC Regulations on

Minimum Qualifications For Appointment Of Teachers and Other

Academic Staff in Universities And Colleges and Measures For the

Maintenance of Standards in Higher Education, 2010 (hereinafter

to be referred as 'the UGC Regulations of 2010') recognised only

Master's degree in the relevant subject as the eligibility condition.

The UGC however superseded these UGC Regulations of 2010 by

UGC Regulations on Minimum Qualifications For Appointment Of

Teachers and Other Academic Staff in Universities And Colleges

and Measures For the Maintenance of Standards in Higher

Education, 2018 (hereinafter to be referred as 'the UGC

Regulations of 2018') which were promulgated vide notification

dated 18.07.2018. In such regulations, for the post of Assistant

Professor eligibility criteria laid down. Relevant portion of which

reads as under:-

                                               (6 of 15)                 [CW-307/2021]


            "I.    Assistant Professor:
                   Eligibility (A or B):
            A.
            i)  A Master's degree with 55% marks

(or an equivalent grade in a point-scale wherever the grading system is followed) in a concerned/relevant/allied subject from an Indian University, or an equivalent degree from an accredited foreign university."

The petitioners would thus point out that under the UGC

Regulations of 2018 the eligibility criteria for appointment to the

post of Assistant Professor by way of direct recruitment is Master's

degree with 55% marks or equivalent in concerned/relevant/allied

subject from an Indian or an accredited foreign university. This is

in contrast to the previous UGC Regulations of 2010 where the

Master's degree in relevant subject alone was recognised as

essential eligibility criteria. Thus, the UGC Regulations of 2018

expand the eligibility criteria from the candidates holding Masters

Degree in relevant subjects to all candidates holding Masters

Degree in concerned/relevant/allied subjects. This would

essentially widen the zone of consideration and make the

competition for recruitment more stiff.

Learned advocates for the petitioners pointed out that the

State Government has adopted these Regulations subject to

certain modifications. Our attention was drawn to a circular dated

01.10.2018 issued by the Government of Rajasthan sanctioning

revision of existing pay scales for teaching staff of the

Government colleges in terms of the UGC Regulations of 2018. In

this circular it has been provided as under:-

"14.Notwithstanding anything contained in this order, the Revised Pay (UGC) shall be subject to the condition that the relevant provisions of Ordinance/Statutes etc of University in regard to qualification, mode of recruitment / appointment to different posts, grant of annual increments /

(7 of 15) [CW-307/2021]

conditions of eligibility for senior and selection scales of Assistant Professor etc. shall be amended with effect from 01.01.2016 strictly in conformity with the guidelines contained in Government of India, Ministry of Human Resource Development, Department of Higher Education, New Delhi letter No.F.1-7/2015-U.II (1) dated 02.11.2017 as amended from time to time and University Grants Commission Regulations (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) 2018 immediately after their issuance except age of superannuation and full pension i.e. 50% of average pay or last pay drawn, whichever is higher after 20 years of qualifying service or as prescribed by the Government."

It is also pointed out that by a subsequent circular dated

19.08.2020 the State Government has formally adopted the UGC

Regulations of 2018 subject to certain conditions. Since much has

been argued by the Government advocate on the basis of this

circular, we may take note of the contents thereof which read as

under:-

"Sub:- Regarding adoption of the provisions of UGC Regulations, 2018 dated 18.07.2018.

Sir, I am directed to convey the sanction for adoption of the provision of UGC Regulations, 2018 with following modifications:-

1. Terms & Conditions as laid down in order no.F1(4) Edu-4/2016 dated 01.10.2018 shall abide by.

2. The Age of superannuation shall be 60 years.

3. Full pension i.e., 50% of average pay or last pay drawn whichever is higher after 28 years of qualifying service or as prescribed by the Government.

4. (i) Direct Recruits on the post of Assistant Professor and equivalent posts shall be appointed as Probationer Trainee for 2 years and allowed

(8 of 15) [CW-307/2021]

fixed remuneration as per State Government Rules and Guidelines.

(ii) Direct Recruits on the post higher than the post of Assistant professor and equivalent posts shall be appointed on 'probation' of one year as per the provisions of rule 26 of RSR.

5. The provisions of Regulation, 2018 shall be strictly applicable for grant of CAS (excluding post of Senior Professor) from the date of issue of orders by the State Government for adoption of Regulation, 2018.

6. Creation of the post of Senior Professor is not agreed.

7. Advance increments for possessing higher qualification of Ph.D and M.Phil is not agreed as the incentive structure is built in the pay structure itself wherein those having M.Phil and Ph.D will progress faster under CAS.

8. The re-employment of the retired Assistant Professor, Associate Professor and Professor on contract basis shall be upto the age of 65 years instead of 70 years.

9. Concerned University shall take effective steps for amendment of the Statutes, Ordinances or other statutory provisions in accordance with the UGC Regulations, 2018 after obtaining approval at the competent level within 6 months.

A copy of the UGC regulations, 2018 may be downloaded from UGC website www.ugc.ac.in for ready reference.

This issues with the concurrence of the finance department vide ID no.152000451 dated 17.08.2020."

Despite these decisions of the State Government, when the

RPSC notified several vacancies in teaching posts in Government

colleges on 02.11.2020, regarding the eligibility criteria, those

specified by UGC in the UGC Regulations of 2010 were recognised.

In short for being eligible for appointment to the post of Assistant

Professor in a particular subject, the candidate must possess

Master's Degree with 55% marks in the relevant subject.

(9 of 15) [CW-307/2021]

Learned advocates for the petitioners submitted that this

deviation from the UGC Regulations of 2018 is impermissible,

illegal and contrary to the constitutional provisions. Principally the

case of the petitioners is that the UGC Regulations being central

legislation, would prevail over any State legislation contrary to it

in relation to any subject which falls under the concurrent list of

Schedule VII of the Constitution.

On the other hand the case of the State Government is as

under:-

(i) The UGC Regulations of 2018 have not been adopted in

entirety. Particularly with respect to the eligibility criteria specified

therein, the State Government has not yet taken a final decision.

The Regulations of the State Government holding the field would

have to be amended. This exercise is not yet completed.

(ii) It is always open for the State Government to apply higher

or stricter standards for selection than those prescribed by the

UGC.

(iii) In any case the State committee had examined the

equivalence of the qualifications similar to those possessed by the

petitioners in the fields of Botany and Zoology and it was found

that the same were not equivalent.

It was also pointed out that Rajasthan Educational Service

(Collegiate Branch) Rules 1986 were lastly amended on

31.01.2018 when the UGC Regulations of 2018 were not yet

promulgated. The reference therefore was made to the UGC

Regulations of 2010 which were prevailing at the relevant time.

Government counsel relied on a decision of the Supreme

Court in case of Kalyani Mathivanan Vs. K.V. Jeyaraj and Ors.

reported in (2015) 6 SCC 363 in support of the contention that

(10 of 15) [CW-307/2021]

if the criteria of eligibility applied by the State Government is

higher than those prescribed by the UGC the same would be valid

and permissible.

Having heard learned counsel for the parties and having

perused the documents on record what emerges is that in UGC

Regulations of 2010 eligibility criteria prescribed for appointment

to the post of Assistant Professor was Master's Degree in the

relevant subject with minimum marks or grade. This materially

changed by virtue of the UGC Regulations of 2018 in which the

eligibility criteria prescribed for the said post was Master's Degree

with 55% marks or equivalent grade in "concerned/relevant/

allied subject" from an Indian University or an accredited foreign

university. The eligibility criteria and consequently the zone of

eligible candidates was widened by substituting the requirement of

holding the Master's Degree in the relevant subject to holding the

Master's Degree in the concerned/relevant/allied subject.

Learned Government advocate has placed heavy reliance on

the decision of the Supreme Court in case of Kalyani

Mathivanan (supra) in which in the context of UGC Regulations

of 2010, it was held that though these Regulations apply to all

allied universities and colleges, the State Government had a

discretion whether to adopt these regulations or not. However,

the UGC Regulations of 2010 in paragraph 7.3 clearly envisage

such discretion being retained by the State legislature. In the UGC

Regulations of 2018 no such discretion is recognised. In fact in

Regulation 1.2 it is provided as under:-

"1.2 Every university or institution deemed to be University, as the case may be, shall as soon as may be, but not later than within six months of the coming into force of these Regulations,

(11 of 15) [CW-307/2021]

take effective steps for the amendment of the statutes, ordinances or other statutory provisions governing it, so as to bring the same in accordance with these Regulations."

Quite apart from this, in our view the material on record

would clearly show that State Government has also adopted UGC

Regulations of 2018 subject to certain modifications. We have

taken note of the circular dated 01.10.2018 in which the Education

Department of the Government of Rajasthan in relation to UGC

Regulations of 2018 had provided that the adoption of the UGC

revised pay scales would be subject to the condition that the

relevant provisions of the ordinance, statute etc. regarding

qualification, mode of recruitment shall be strictly in conformity

with the guidelines issued by the Government of India as

amended from time to time and the UGC Regulations of 2018. For

better clarity in the subsequent circular dated 19.08.2020 the

Education Department had stated that the Government has

granted sanction for adoption of the provisions of UGC Regulations

of 2018 subject however to certain modifications. We have

reproduced the contents of these circulars. We have perused the

modifications included therein. None of these modifications

excluded the applicability of the eligibility criteria prescribed by

the UGC Regulations in question. The effect of this discussion

therefore would be that the State was bound to follow the

eligibility criteria prescribed by the UGC in the recruitment process

which was initiated thereafter. We may recall, in the present case

the vacancies were notified by the Rajasthan Public Service

Commission under the advertisement dated 02.11.2020. The

modified eligibility criteria therefore had to be applied. The record

would suggest that even the Rajasthan Public Service Commission

(12 of 15) [CW-307/2021]

under a letter dated 23.07.2020 enquired the State Government

whether the concerned/relevant/allied subjects at Master's Degree

may be included in the proposed qualifications and which

qualification shall be considered as concerned/relevant/ allied

subjects may be specified. Our attention was also drawn to the

exercise undertaken by the other State Governments for

recruitment after the promulgation of UGC Regulations of 2018 in

which the degree in concerned/relevant/ allied subject has been

recognised.

It is well settled that the State Government can adopt

standards of selection higher than those prescribed by UGC and in

such a case the action of the State cannot be seen as conflicting

with the central legislation in a concurrent subject. However, in the

present case as noted, by virtue of UGC Regulations of 2018 the

UGC has expanded the eligibility criteria and thus widened the

base of eligible candidates. The State Government preferred to

proceed on the basis of previous Regulations of 2010 and

recognised only holders of Master's degree in the relevant subject

as eligible. This essentially narrows down the zone of

consideration and thereby eliminates number of other candidates

from applying and competing for the post in question. This action

of the State Government therefore cannot be seen as laying down

eligibility criteria or selection criteria higher than that prescribed

by UGC.

The State Government in its affidavit in reply has stated that

the subjects of Biotechnology, Life Sciences, Animal Biotechnology

were not considered relevant for subjects of Science and Botany

by an expert committee formed by the State Government. A copy

of the report of such committee is produced. A perusal of this

(13 of 15) [CW-307/2021]

report would show that the same is dated 12.04.2017 and the

committee of experts constituted by the State Government came

to the conclusion that the above subjects were not equivalent to

the subjects of Zoology or Botany. For several reasons this report

in the present context would not decide the controversy at hand.

To begin with this report was submitted when the UGC Regulations

of 2018 were not in existence. Secondly consideration before the

committee therefore was whether a particular qualification was

equivalent to the Master's Degree in the relevant subject.

Equivalence of qualifications is a question vastly different from the

question whether such qualification is obtained in the allied or

related subject.

While considering the question as to what relief can be

granted to the petitioners, several factors shall have to kept in

mind. The State Government has pointed out that there is a

severe shortage of teaching staff in the Government colleges

across the State. There is thus an urgent requirement to complete

the recruitment process for making appointments on such vacant

posts. The present selection process, we are informed has traveled

to the stage of taking written examination of all candidates who

had applied. Result of the written test is awaited. This would be

followed by oral interview of candidates who may qualify for the

next stage of selection. The petitioners whether according to

Government were eligible or not have applied. They have

appeared in the written tests. This Court has provided that their

participation would be subject to the outcome of these petitions.

Whether the qualifications possessed by the petitioners are in the

concerned/relevant/allied subject, has to be judged by the State

authorities.

(14 of 15) [CW-307/2021]

While permitting the petitioners to participate further in the

selection process, we would request the State Government to form

a committee of experts to consider whether the petitioners can be

stated to have Master's Degree in concerned/relevant/allied

subject of Botany or Zoology as the case may be. In case of Civil

Writ Petition No.15064/2020, this question may also arise in

relation to subject of Physics. However, this relief cannot be

extended in favour of those candidates who have neither applied

to the RPSC nor have approached this Court. Granting any such

relief in favour of non-petitioners would derail the entire selection

process undertaken by the State Government which has reached

at an advanced stage. However, for the future, we would expect

the State Government to undertake this exercise for all subjects

so that any future selection process does not run into similar legal

controversy. The Government may also consider amending the

rules suitably.

In the result, both the petitions are disposed of with

following directions:-

(i) The State Government shall form a committee of

experts to consider and take a final decision whether the

qualifications held by the petitioners can be stated to be in

concerned/relevant/allied subject of Botany, Zoology or Physics as

the case may be.

(ii) Based on such decision of the State Government the

question of eligibility of the petitioners in terms of the UGC

Regulations of 2018 will be judged.

(iii) If any of the petitioners are found eligible, their cases

would be considered for selection on merits.

(15 of 15) [CW-307/2021]

(iv) If the consideration of eligibility of the petitioners is not

completed by the State Government before the oral interviews

begin, the petitioners would be called for oral interviews on

provisional basis if on merits they have qualified in the written

test.

Pending applications if any also stand disposed of.

(UMA SHANKER VYAS),J (AKIL KURESHI),CJ

KAMLESH KUMAR/N.GANDHI/S-243-244

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