TaxTMI 
TaxTMI 
2015 (3) TMI 1410
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of a writ of quo warranto directing the Appellant - Dr. Kalyani Mathivanan to show cause under what authority she continues to hold the office of the Vice-Chancellor, Madurai Kamaraj University. 2. By the impugned judgment the High Court held that the Appellant-Dr. Kalyani Mathivanan did not satisfy the eligibility criteria stipulated by the UGC Regulations of 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 referred to as the 'UGC Regulations, 2010') for appointment as Vice-Chancellor and non-fulfilment of such eligibility criteria cannot be completely white washed on the specious plea that the University Grants Commission Regulations, 2010 are not mandatory. The High Court set aside the order of appointment of the Appellant-Dr. Kalyani Mathivanan and allowed the writ petitions. 3. The factual matrix of the case is as follows: The post of Vice-Chancellor in Madurai Kamaraj University (hereinafter referred to as the 'University') fell vacant in the year 2011-2012 and the Government constituted a search Committee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....niversity of Madras. In 2008, She was promoted as Head of the English Department, Ethiraj College. On 9th September, 2009, the Department of Higher Education, Government of Tamil Nadu based on the report of the Official Committee constituted to examine the recommendations of the G.K. Chadha Committee, passed an order that there shall be only three designations in respect of Teachers in Universities and Colleges, namely, Assistant Professors, Associate Professors and Professors. It was further ordered that the posts of Professors shall be created for under-Graduate and Post-Graduate Colleges on the basis of guidelines prescribed therein. However, this direction has not been implemented till date in the State of Tamil Nadu. 6. On behalf of the Appellant-Dr. Kalyani Mathivanan, it was further contended that she is qualified for appointment as Vice-Chancellor of the University as per the Madurai Kamaraj University Act, 1965 (hereinafter referred to as the 'University Act, 1965'). It was further contended that the UGC Regulations, 2010 are not mandatory but directory and cannot override the provisions of the University Act, 1965. 7. The High Court by the impugned order fra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld be made only in the case of very outstanding persons whose association with the universities would be desirable from every point of view and should not be made an excuse for accommodating' or 'rewarding individuals who do not fulfill the conditions laid down. A Vice-Chancellor is one who stands for the commitment of the University to scholarship and pursuit of truth. (Kothari Commission 1964-66: 334) A Vice-Chancellor should be a person with vision and (have) qualities of academic leadership with ability for administration. He should command high respect among all sections of the society. The Vice-Chancellor should be a distinguished academic... (who) has commitment to the values for which the Universities stand.... He must have the ability to provide leadership to the University by his academic worth, administrative competence and moral stature,. (Kothari Commission 1964-66: 334) Parikh Committee was not in favour of appointing Government officials as VCs. Quoting the Kothari Commission Report, the Parikh Committee mentions that the Vice-Chancellor is the most important functionary in a University not only on the administrative side but is also charged....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith the finding of the Bombay High Court in a similar case, "Suresh Patilkhede of Thane v. Chancellor, University of Maharashtra in PIL (L) No. 80/2011, 2012 (6) ALLMR 336. The Bombay High Court by the said judgment held that Vice-Chancellor in his said capacity cannot be considered as a member of the academic or teaching staff of the University and also held that the UGC Regulations, 2010 is directory in nature. In the impugned judgment Madras High Court observed as follows: 46. Therefore, with great respect, we are unable to subscribe to the view expressed by the Bombay High Court in paragraph 13 of the decision in Suresh Patilkhede that the Vice-Chancellor need not be considered as a member of the academic teaching staff. 10. The High Court further observed: 48. If University Grants Commission Regulations, 2010 will have to be given effect to (subject to our finding on the next two facets of question No. 2), the Vice-Chancellor should actually be a distinguished academician. Today, Albert Einstein cannot be appointed as the Vice-Chancellor of any University (at least in India) unless he fulfills the qualifications prescribed by University Grants Commission, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xcelled in various fields. Students of Indian History would know that Sir John George Woodraff who was a Judge of the Calcutta High Court and who retired as the Officiating Chief Justice of the same Court, collaborated with Ameer Ali in publishing the Code of Civil Procedure. He was a great Sanskrit scholar who authored books on Mantra Sastra and Tantra Sastra, After retiring as the Officiating Chief Justice, he served a Reader in law in the Oxford University for seven years. Great Jurists, both (Lawyers and Judges) such as Sir Subramanya Ayyar, Sir P.S. Sivaswamy Ayyar, Justice F.D. Oldfield were among a few who became the Vice-Chancellors of Madras University, ever since its inception about 150 years. But today, it is not possible to continue with the same legacy or two reasons, namely: (a) that we do not have such tall men of great eminence and (b) that today the field is regulated by law. 14. The High Court also relied on an Article titled 'Why Socrates should be in the Boardroom in Research Universities', published in 2010 by Amanda H. Goodall, for determining the case and observed as follows: 47. In an interesting Article, titled....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt but we are of the view that it is not necessary to notice the background history of appointment of Vice-Chancellors or the great personalities who held such posts or the interesting Article, titled 'Why Socrates should be in the Boardroom in Research Universities', published in 2010 by Amanda H. Goodall as they are not relevant for determining the issue involved in the present case. 16. Learned Counsel for the Appellant-Dr. Kalyani Mathivanan, has taken similar pleas as were taken before the High Court. 17. The contesting Respondent No. 1-Dr. K.Y. Jeyaraj has taken the following pleas: (i) The words "Teaching Staff of the University" occurring in Clause (e) of Section 26(1) of UGC Act, 1956 are words of wide import. Section 2(n) of the Madurai Kamaraj University Act defines Teachers of the University, as persons appointed by the University to give instruction on its behalf. Any person appointed to the University including the Vice-Chancellor, other than mere administrative staff can be required by the University to give instructions on its behalf. Thus, teaching staff should include those who are appointed to contribute and who can be called upon to cont....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her UGC Regulations, 2010 is mandatory in nature; and (ii) Whether in the event of conflict between the University Act, Regulations framed thereunder and the UGC Regulations, 2010, the provisions of the UGC Regulations, 2010 would prevail or not; and (iii) Whether the post of Vice-Chancellor of a University is to be considered as part of teaching staff. 19. For determination of these issues, it is necessary to notice the relevant provisions of University Commission Act, 1956 (hereinafter referred to as the, 'UGC Act, 1956'), UGC Regulations, 2010, the University Act, 1965 and the statutes framed thereunder. University Grants Commission Act, 1956: UGC Act, 1956 was enacted to make provisions for the coordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission. Section 12 deals with the 'function of the Commission', relevant of which is quoted hereunder: 12. It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University educa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....21. As per Section 28 the Rules and Regulations framed under the U.G.C. Act are required to be laid before each House of Parliament and when both the Houses agree then the Rules and Regulations can be given effect with such modification as may be made by the Parliament. Section 28 reads as below: Section 28. Every rule and every Regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session, or the successive sessions aforesaid, both Houses agree in making any modification in the rule or Regulation or both Houses agree that the rule or Regulation should not be made, the rule or Regulation shall thereafter have effect only in such modified form or be of no effect, as the case may, be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or Regulation.] [No rule made or purporting to have been made, with retrospective effect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-32/2006-U.II/U.I(i) dated 31st December, 2008 communicated the Secretary, University Grants Commission, New Delhi the Scheme of revision of pay of teachers and equivalent cadres in Universities and Colleges following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission. By the said letter, the Government of India directed that there shall be only three designations in respect of teachers in Universities and Colleges, namely, Assistant Professors, Associate Professors and Professors. In the said letter revised Pay Scales, Service Conditions and Career Advancement Scheme for teachers and equivalent positions including the post of Assistant Professors/Associate Professors/Professors in Universities and Colleges were intimated. Pay scales of Pro-Vice-Chancellor/Vice-Chancellor were also mentioned therein. It was intimated that the said Scheme may be extended to the Universities, Colleges and other higher educational institutions coming under the purview of State legislature, provided State Governments wish to adopt and implement the Scheme subject to the terms and conditions mentioned therein. 24. In view of the af....
X X X X Extracts X X X X
X X X X Extracts X X X X
....issued on 31st December, 2008 and in supersession of the University Grants Commission (minimum qualifications required for the appointment and career advancement of teachers in Universities and Institutions affiliated to it) Regulations, 2000, issued by University Grants Commission vide Regulation No. F.3-1/2000(PS) dated 4th April, 2000, together with all amendments made therein from time to time, the University Grants Commission hereby frames the following Regulations, namely: 1. Short title, application and commencement: 1.1. These Regulations may be called the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010. 1.2. They shall apply to every university established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the university concerned under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and every institution deemed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....imum qualifications for appointment and other service conditions of University and College Teachers, Librarians, Directors of Physical Education and Sports. Regulation 2.0.0 relates to pay scales, pay fixation and age of superannuation, etc. Regulation 7.0.0. relates to selection of Pro-Vice-Chancellor/Vice-Chancellor of Universities. In Regulation 7.3.0. standards to be followed and qualifications necessary for selection to the post of Vice-Chancellor have been mentioned. Regulation 7.4.0 relates to adoption of Regulations by the universities and State Governments. The relevant provisions of the Annexure to the UGC Regulations, 2010 are quoted hereunder: ANNEXURE UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT of THE TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE of STANDARDS IN HIGHER EDUCATION, 2010 ---------------------------------------------------------------------------- These Regulations are issued for minimum qualifications for appointment and other service conditions of University and College Teachers, Librarians, Directors of Physical Education and Sports for the maintenance of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ic Notification or nomination or a talent search process or in combination. The members of the above Search Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges. While preparing the panel, the search committee must give proper weightage to academic excellence, exposure to the higher education system in the country and abroad, and adequate experience in academic and administrative governance to be given in writing along with the panel to be submitted to the Visitor/Chancellor. In respect of State and Central Universities, the following shall be the constitution of the Search Committee. a) a nominee of the Visitor/Chancellor, who should be the Chairperson of the Committee. b) a nominee of the Chairman, University Grants Commission. c) a nominee of the Syndicate/Executive Council/Board of Management of the University. iii. The Visitor/Chancellor shall appoint the Vice-Chancellor out of the Panel of names recommended by the Search Committee. iv. The conditions of service of the Vice-Chancellor shall be prescribed in the Statutes of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....signated as Professor, unless he or she possesses a Ph.D. and satisfies other academic conditions, as laid downy the University Grants Commission (UGC) from time to time. This shall, however, not affect those who are already designated as 'Professor'. (iii) The pay of teachers and equivalent positions in Universities and Colleges shall be fixed according to their designations in two pay bands of Rs. 15,600 - Rs. 39,100 and Rs. 37,400 - Rs. 67,000 with appropriate "Academic Grade Pay" (AGP in short). Each Pay Band shall have different stages of Academic Grade Pay which shall ensure that teachers and other equivalent cadres covered under this Scheme, subject to other conditions of eligibility being satisfied, have multiple opportunities for upward movement during their career. (iv) Posts of Professors shall be created in under-graduate (UG) colleges as well as in postgraduate (PG) colleges. The number of posts of Professors in a UG College shall be equivalent to 10 percent of the number of posts-of Associate Professors in that College. There shall be as many posts of Professors in each PG College as the number of Departments in that College. No new Departmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and ordinances in line with the UGC Regulations within three months from the date of issue of this letter. xxx From paragraph 8(p)(i) and (v) of Appendix-I dated 31st December, 2008 read with Regulation 7.4.0 we find that the Scheme of Regulation is applicable to teaching staffs of all Central Universities and Colleges thereunder and the institutions deemed to be Universities whose maintenance expenditure is met by the UGC. However, the Scheme under UGC Regulations, 2010 is not applicable to the teaching staffs of the Universities, Colleges and other higher educational institutions coming under the purview of State Legislature, unless State Government wish to adopt and implement the Scheme subject to terms and conditions mentioned therein. 27. The Madurai-Kamaraj University Act, 1965 (University Act) [(Tamil Nadu) ACT No. 33 of 1965] The above said Act was enacted by the State Legislature to provide for the establishment and incorporation of a University at Madurai enacted by the State Legislature. Section 2(m) of the University Act defines 'teachers' as under: 2(m). "teachers" means such lecturers, readers, assistant professors, professors and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....commended by the Committee referred to in Sub-section (2).Such panel shall not contain the name of any member of the said Committee. Provided that if the Chancellor does not approve any of the persons in the panel so recommended by the Committee, he may take steps to constitute another Committee, in accordance with Sub-section (2), to give a fresh panel of three different names and shall appoint one of the persons named in the fresh panel as the Vice-Chancellor. (2) For the purpose of Sub-section (1), the Committee shall consist of three persons of whom one shall be nominated by the Chancellor. Provided that the person so nominated shall not be a member of any of the authorities of the University. (3) The Vice-Chancellor shall hold office for a period of three years and shall be eligible for re-appointment for not more than two successive terms. (4) When any temporary vacancy occurs in the office of the Vice-Chancellor or if the Vice-Chancellor is, by reason of absence or for any other reason, unable to exercise the powers and perform the duties of his office, the Syndicate shall, as soon as possible, make the requisite arrangements for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d [Section 12(1)], heads the Academic Council, and has general control over teaching and examination within the University and is responsible for the maintenance of the standards thereof. 28. Chapter V of the University Act deals with the 'Academic Council', the Faculties, the Boards and Studies, the Finance Committee and other Authorities. Section 23 relates to the Academic Council and Section 24 deals with the Constitution of the Academic Council. The relevant portion of the said provisions reads as under: CHAPTER V THE ACADEMIC COUNCIL, THE FACULTIES, THE BOARDS of STUDIES, THE FINANCE COMMITTEE AND OTHER AUTHORITIES. Section 23. The Academic Council.- The Academic Council shall be the academic authority of the University and shall, subject to the provisions of this Act and the statutes, have the control and general Regulation of teaching and examination within the University and be responsible for the maintenance of the standards thereof and shall exercise such other powers and perform other duties as may be prescribed. Section 24. Constitution of the Academic Council.- (a) The Academic Council shall, in addition to the Vice-Chancellor, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llor and the Pro-Chancellor preside at the meetings of the Senate, and at any Convocation of the University. (Act Section 12 Powers and duties of the Vice-Chancellor) (3) The Vice-Chancellor shall be a member ex-officio and Chairman of the Syndicate, the Academic Council and the Finance Committee of the University and shall be entitled to be present at and address any meeting of any authority of the University but shall not be entitled to vote there at unless he is a member of the authorities concerned. (4) The Vice-Chancellor shall have power to convene the meetings of the Senate, the Syndicate, the Academic Council and the Finance Committee of the University. (5) The Vice-Chancellor shall exercise a general control over all the affairs of the University. xxx. 31. From UGC Regulations, 2010, it is clear that the Vice-Chancellor should be a distinguished academician with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization. Whereas the post of Vice-Chancellor under University Act, 1965 and statute ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. 33. The effect in case of inconsistency between the Legislation made by the Parliament and the State Legislature on the subject covered by List III has been decided by this Court in numerous cases. 34. In State of Tamil Nadu and Anr. v. Adhiyhaman Education and Research Institute and Ors. (1995) 4 SCC 104, this Court noticed that Entry 66 of List I of the Seventh Schedule has remained unchanged from the inception and that Entry 11 was taken out from List II and was amalgamated with Entry 25 of List III. In the said case the Court held as follows: 12. The subject "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions" has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, unless the State legislation is 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 short-list 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,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254. 36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....equiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their postgraduate courses. 36. In Annamalai University v. Secretary to Government, Information and Tourism Department and Ors. (2009) 4 SCC 590, this Court observed that 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. It was held that in such circumstances the question of repugnancy between the provisions of the said two Acts, does not arise. The Court while holding that the provisions of the UGC Act are binding on all the Universities held as follows: 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 repugnancy of the provisions of the said two Acts, therefore, does not arise. It is true that the S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re unless State Government wish to adopt and implement the Scheme subject to the terms and conditions therein. In this connection, one may refer paragraph 8(p)(v) of Appendix-I dated 31st December, 2008 and Regulation 7.4.0 of UGC Regulations, 2010. 40. It is also not the case of the Respondents that the Scheme as contained in Appendix-I to the Annexure of UGC Regulations, 2010 has been adopted and implemented by the State Government. It is also apparent from the facts that University Act has not been amended in terms of UGC Regulations, 2010 nor was any action taken by the UGC Under Section 14 of UGC Act, 1956 as a consequence of failure of University to comply with the recommendations of the Commission Under Section 14 of the UGC Act, 1956. 41. Almost similar Public Interest Litigation was filed before the High Court of Judicature at Bombay being Public Interest Litigation (Lodging) No. 80 of 2011 Suresh Patilkhede v. The Chancellor, Universities of Maharashtra (supra). In the said case the writ Petitioner challenged the appointment of Search Committee for recommending the panel of suitable person for selection of Vice-Chancellor of Pune University on the ground that the ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ission Act, 1956. (ii) The source of making Regulation 7.3.0 of UGC Regulations, 2010 is Section 12(d) and (j) of UGC Act, 1956. However, since Section 12(d) and (j) of UGC Act merely enables UGC to make recommendations to Universities, Regulation 7.3.0 has to be treated as recommendatory in nature. (iii) Regulation 7.3.0 of UGC Regulations, 2010 being a subordinate legislation under an Act of Parliament cannot override plenary legislation enacted by the State Legislature and, therefore, also Regulation 7.3.0 does not override, Section 12 of the Maharashtra Universities Act, 1994. 43. We do not agree with the finding of the Bombay High Court that Regulation 7.3.0 of the UGC Regulations, 2010 is not traceable to Clause (e) or (g) of Section 26(1) of UGC Act, 1956. We also refuse to agree that Regulation 7.3.0 of the UGC Regulations, 2010 being a sub-ordinate legislation under the Act of Parliament cannot override the preliminary legislation enacted by the State Legislature. However, the finding of the Bombay High Court that Regulation 7.3.0 has to be treated as recommendatory in nature is upheld in so far as it relates to Universities and Colleges under th....