Oral Judgment: (Anoop V. Mohta, J.)
1. Rule, returnable forthwith. Heard finally by consent of parties.
Background for a common Judgment
2. By consent, heard finally specifically in view of the following order passed by Supreme Court dated 25 March 2015 in Civil Appeal No.10759/2013 â“ State of Maharashtra v. Asha Ramdas Bidkar, against the Judgment dated 1-8-2013 of Aurangabad Bench in Asha Ramdas Bidkar v. State of Maharashtra (Writ Petition No.11477/2010):
â1. On the taking up of Civil Appeal No.10760 of 2013 we have come to learn that several Respondents as well as other Lectures/Assistant Professors similarly placed who are vitally affected by the core issue which has now been canvassed before us have neither been impleaded nor have been heard by the High Court of Judicature at Bombay. We are further informed that as on date there are over hundred Writ Petitions pending in the Principal Bench and the Benches at Nagpur and Aurangabad of the High Court of Judicature at Bombay. It has been pointed out by the Learned Senior Counsel that Maharashtra Federation of University and College Teachers Organisation, (MFUCTO), Respondent in Civil Appeal No.10759/2013, had filed a Writ Petition which is pending before the Principal Bench. This Association is also seeking to be heard in the proceedings before us.
2. In these circumstances the course which commends itself to us is to stay the operation of the Impugned Order without, in any manner, causing any isadvantage to any of the parties who are the beneficiaries to the Impugned Judgment. We are staying the operation of the Impugned Judgment since several other Writ Petitions are also pending and Coordinate Benches would otherwise be bound to follow the previous decision or refer the conundrum or recommend to the Hon'ble Chief Justice to constitute a Larger Bench, if the already articulated terms of the Coordinate Benches are found to be unacceptable. It is not controverted that Public Notice had not been given in respect of this litigation. Therefore, there is the need to stay the operation of the Impugned Order, so as to enable denovo consideration of the pending Writ Petition.
3. Accordingly, we request Hon'ble the Chief Justice of the High Court of Judicature at Bombay to constitute or nominate a Bench at the Principal Bench, to which all pending Writ Petitions should be transferred, and which Bench should forthwith take up the matters, in expedition, and decide all the Writ Petitions preferably within a period of six months from today. We also direct the State of Maharashtra to give wide publicity to the pendency of these Writ Petitions at the Principal Bench so that any person desirous of being heard may be able to do so, if that is found by it to be necessary and/or expedient.
4. In view of the above, learned counsel for the Appellant in Civil Appeal No. 10760 of 2013 seeks leave to withdraw the Appeal with liberty granted to the Appellant to approach the High Court of Judicature at Bombay. This Appeal is dismissed as withdrawn with liberty granted as prayed for.
5. We reiterate that the reason for which we have stayed the Impugned Order is to enable the Division Bench to look into the matters and decide them afresh. This does not preclude them from chartering the same course as in the Impugned Judgment, but that should be by way of a Judgment containing reasons for the conclusion.
6. Mr. B. H. Marlapalle learned Senior Counsel for the State of Maharashtra assures the Court that no adverse action shall be taken against the Respondents in the Appeals before us. The above arrangement shall, needless to clarify, be subject to the final orders that will be passed in Civil Appeal No.10759 of 2013.
7. Liberty is also granted to affected persons to seek in the High Court of Judicature at Bombay ad interim orders which may place them on parity with other Lecturers/Assistant Professors similarly placed.â?
3. The Supreme Court by this order, therefore, stayed the judgment dated 1.8.2013 in Asha Ramdas Bidkar (supra) and consequently also the following relief so granted by the Division Bench, which reads as under:
â4)
It is not in dispute on the part of the University Grants Commission or even by the respondent Nos. 1 to 3 that petitioners were appointed, granted approval and their appointments were made in conformity with the rules and regulations, except the passing of NET/SET examination.
5. Based on the scheme announced by UGC and adopted by the State Government, the lecturers in Senior Colleges who possess requisite qualification and qualifying duration of service are entitled for pecuniary benefit of higher scale of pay under the scheme called as âCareer Advancement Schemeâ? (âCASâ? for short). According to the Petitioners they do qualify for said benefit.
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15) The stand taken by the State is wholly unjust and deserves to be rejected.
16) Therefore, now the respondent Nos. 1 to 3 ought not and cannot deny to the petitioners the benefit of Career Advancement Scheme.
17) This Court, therefore, allows the writ petition in terms of prayer clauses (A) and (B), with modification that interest on arrears shall carry interest @ 6% per annum, from the date when the payment became due.â?
Due notices of hearing
4. All the writ petitions, about 400 in number, have been transferred and tagged. This Special Bench as directed by the learned Chief Justice on 4 June 2015, has listed the matters for final hearing by consent.
5. Due notices, as directed, have been given from time to time starting from 16.07.2015/20-08-2015, to the concerned parties, through the Registry at the Principal Bench and the Benches at Nagpur, Aurangabad and Goa, apart from notices/intimations by the State including public notices, as stated, even in news papers also. All the timely orders are part of record.
Restricted to Broader issues/challenges
6. By consent, all have proceeded with some of the Petitions, as lead Petitions instead of individual Petition for and against the broader common issues, revolving around relevancy/importance of National Eligibility Test (NET)/State Eligibility Test(SET) (for short, the âNET/SETâ?) qualification/examination as stated to be necessary and essential qualification for getting appointment and all the service benefits, including âCareer Advancement Schemeâ? benefits (CAS) and related monetary entitlement including âthe continuity of serviceâ?. The counter challenges are also raised against the UGC letters/resolutions granting the relaxation/exemption from such qualification and to the State Government Circular dated 27.06.2013 granting continuity of service and other benefits to non-NET/SET teachers/lecturers from the date of Resolution, subject to certain conditions. (The impugned Circular).
7. Admittedly, some matters are pending even in Supreme Court. We have, therefore, without touching the issues so pending in the Supreme Court, but as directed and observed in the order so reproduced above, consciously proceeded to decide common connected issues so raised revolving around NET/SET qualification and its importance in service career of Lecturers/teachers, who have been duly appointed by the respective Universities, during the period 19.9.1991 to 3.4.2000, based upon then existing provisions of UGC Act and the Regulations, and State Government Circulars, so referred in the impugned Resolution/circular.
Petitioners/teachers/lecturers/Universities/Colleges and Respondents
8. The Writ Petitions, by invoking Articles 14, 16, 21, 226 of the Constitution of India, are filed by individual Petitioners/teachers/lecturers and through their respective Associations and thereby various challenges are raised including the requirement and the mandate of NET/SET qualification for all the benefits including CAS, apart from continuity of service, in view of relaxation/exemption have been granted by the UGC in mass, on the Universities/teachers/lecturers representations made, individually and/or collectively/in mass.
9. The counter Writ Petitions are filed by lecturers/teachers/persons who are holding the NET/SET certificate/qualification and those who have passed the NET/SET examination pursuant to the mandate so issued from time to time, by the Respondents-University Grants Commission (UGC) / Universities and the State. They have raised various issues and resisted the claim of the above group of Petitioners who have not acquired the NET/SET qualification or passed such test. They have also challenged the Respondent's action of stated exemption/relaxation and the State's action of granting (who have not completed and/or obtained NET/SET qualification yet) continuity of service, all related benefits, by the impugned Resolution and related actions.
10. The following Non-Agriculture Universities in Maharashtra are also Respondents in these respective matters:
(1) University of Mumbai
(2) Savitribai Phule Pune University
(3) Rashtrasant Tukdoji Maharaj Nagpur University
(4) Sant Gadge Baba Amravati University
(5) North Maharashtra University, Jalgaon
(6) Swami Ramanand Teerth Marathwada Univertsity, Nanded
(7) Dr. Babasaheb Ambedkar Marathwada University, Aurangabad.
(8) Shivaji University Kolhapur
(9) Solapur University, Solapur
(10) SNDT Women's University, Mumbai
(11) Gondwana University, Gadchiroli (Est.2011)
11 The colleges are having following streams of subjects:
(1) Arts
(2) Science
(3) Commerce
(4) Education
(5) Social work
(6) Law
(7) Music
(8) Journalism and Mass Communication.
The parties Affidavit-rejoinder-written submissions are filed.
12. The contesting respective parties have filed affidavits/additional affidavits, rejoinders, synopsis and the written notes of Arguments.
Union of India/Central Government
13. The Union of India/Central Government is the supreme authority to deal with the every aspects of education policy and related issues, in India. All are bound by the orders/directions of the Central Government under the University Grants Commission Act, 1956 (The UGC Act). The Union of India has also filed an affidavit after directions issued by this High Court. It is submitted that no such affidavit was filed by the Union of India at earlier point of time opposing the contentions of the Petitioners including the action of UGC of granting stated relaxation from the qualification of NET/SET requirement. Union of India has opposed the grant of prayers in the Petitions of non-NET/SET lecturers.
Basic UGC Act provisions
14. The Respondent/UGC is a statutory body established under the UGC Act. This Act makes provision for the coordination and determination and standard in Universities and for that purpose to establish University Grants Commission. The following are the relevant provisions. Section 2 deals with the definitions. Chapter III deals with the powers and functions of the Commission. Section 14 deals with the Consequences of failure of Universities to comply with recommendations of the Commission. The other relevant sections are 20, 22, 26 (1), (c ), (d), (e) and clauses (2) and (3).
Same are reproduced as under:
â20 Directions by the Central Government.
(1) In the discharge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government.
(2) If any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final.
22. Right to confer degrees.
(1) The right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees.
(2) Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree.
(3) For the purposes of this section, degree means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette.
26. Power to make regulations.
(1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rule made thereunder,
(a) regulating the meetings of the Commission and the procedure for conducting business thereat;
(b) regulating the manner in which and the purposes for which persons may be associated with the Commission under section 9;
(d) specifying the institutions or class of institutions which may be recognised by the Commission under clause (f) of section 2;
(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instruction;
(f) defining the minimum standards of instruction for the grant of any degree by any University;
(g) regulating the maintenance of standards and the coordination of work or facilities in Universities.
(h) regulating the establishment of institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions;]
(2) No regulation shall be made under clause (a) or clause (b) or clause (c) or clause (d) 17 [or clause (h) or clause (i) or clause (j)] of sub-section (1) except with the previous approval of the Central Government.
(3) The power to make regulations conferred by this section [except clause (i) and clause (j) of subsection (1)] shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.]â?
Section 28 deals with the provision of laying of rules and regulations before Parliament.
Teachers/Lecturers without NET/SET TEST QUALIFICATION but have been appointed by the Colleges/Institutions, affiliated to the Universities.
15. We are essentially concerned with teachers/lecturers who have not acquired NET/SET though appointed, between 19.09.1991 and 3.4.2000, in their respective affiliated degree colleges in the State of Maharashtra. We are not concerned with the teachers who have acquired NET/SET qualification even after their initial appointments, as they are entitled for all the benefits as announced by the Respondents. The teachers/lecturers who have acquired M.Phil and Ph.D. after their initial appointment are also entitled for the declared benefits.
Important dates and events, referring to the Regulations/Circulars
16. The common undisputed relevant dates and events interalia concerning progressive development of issue of minimum qualification of degree college, teachers/lecturers in Maharashtra, as relied/referred in of the lead Writ Petition No.2082/2013, are as under:
| On 13.6.1983, | U.G.C. Regulations concerning qualifications. Required qualifications: M. Phil. With Second Class Masters Degree and âGood Academic Recordâ? was notified. |
| 17.6.1987 | Govt. of India Notification for implementation of 4th Pay Commission. |
| 27.2.1989 | State Govt. adopts the Central Government Scheme w.e.f. 1.1.1986. Career Advancement Scheme introduced by this for the first time granting senior scale and selection grade to lecturers. M.Phil. as a qualification requirement done away with and the only qualification required for lecturers now was Masters with more than 55% marks. Universities asked to amend the Statutes. |
| 1989 | Statutes framed by some of the Universities to adopt the above G.R. |
| 19.9.1991 | U.G.C. Qualifications Regulation. In addition to Masters Degree with more than 55% marks prescribes for the first time NET/ SET as eligibility criteria for Degree College Lecturers. It provides that any relaxation can only be given by the University concerned with prior approval of the U.G.C. It further provides that if there is a failure to comply, Grants may be stopped. Under this Regulation even those having Ph.D. or M.Phil. are required to do NET/ SET. This Regulation was prospective i.e. for those lecturers who would be appointed after 19.9.1991 |
| 23.10.1992 | State Govt.â™s Resolution adopting the above U.G.C. Regulation |
| 27.11.1992 | State Govt.â™s Resolution superseding the October, 1992 Resolution and asking Universities to issue directives in accordance with the U.G.C. Regulation of 1991 |
| 10.2.1993 | UGC Circular granting exemption from doing NET/SET to those candidates who have (i) completed Ph.D. (ii) who will submit their Ph.D. thesis by 31.12.1993 and (iii) those candidates who have been awarded M.Phil. by 31.3.1991 |
| 6.1993 | U.G.C. provides that those candidates who have done M.Phil. upto 31.12.1992 or those who submit Ph.D. thesis upto 31.12.1993 are exempt from doing NET/ SET. UGC also requests Universities to amend statutes. |
| 10.12.1993 | State Govt.â™s resolution adopting the U.G.C. Circular dated 10.2.1993 |
| 2.2.1994 | State Govt.â™s letter to Universities that those lecturers appointed without NET/ SET can be continued upto 1.3.1994 but not to be continued after that. |
| 28.4.1994 | Govt. letter: Those teachers appointed without NET/SET should be removed by 31.3.1996 |
| 8.6.1994 | Govt. Resolution: Adopting the UGC Circular exempting those candidates who have done M.Phil upto 31.3.1992 from appearing for NET/ SET |
| 14.7.1994 | Govt. G.R. appointing Pune University as Nodal Agency for conducting SET Exam, especially in regional language. |
| 21.6.1995 | UGC 1st Amendment to 1991 Regulations. Those candidates who have submitted Ph.D. thesis or passed M.Phil. by 31.12.1993 are exempt from doing NET/ SET. |
| 22.12.1995 | State Govt. Resolution:(i) The date of 31.3.1996 for passing NET/ SET removed; (ii) Those who have come into service after 19.9.1991 and have not completed NET/SET and have not passed M.Phil. by 31.12.1993 and have not submitted Ph.D. thesis by 31.12.1993 will be required to do NET/SET; (III) Non NET/ SET teachers to be treated as ad hoc but their services not to be terminated on account of not having NET/ SET. However they will not get annual increment and their services upto they acquire NET/ SET will not be counted for senior scale/ selection grade. |
| 22.5.1998 | Govt. Resolution allowing annual increments to those candidates who have not passed NET/ SET 27.7.1998 Central Govt.â™s letter to all States concerning revision of pay scales for all Central Universities and Colleges. The letter states that 80% of additional expenditure for the period 1.1.1996 to 31.3.2000 will be provided by the Central Govt. The Central Govt. would pay provided entire scheme is adopted as a whole. Universities were asked to have required changes to their Statutes. |
| 24.12.1998 | UGC issues Notification on revision of Pay Scales and minimum qualifications for Universities and Colleges. NET/SET made mandatory. Relaxation can be given by Universities after prior approval of the UGC. Universities asked to amend Statutes. If conditions not fulfilled, grant may be withheld. |
| 11.12.1999 | Govt. Resolution adopting 5th Pay Commission from 1.1.1996 on the basis of the UGC Notification dated 24.12.1998. For the first time NET/ SET accepted as the required eligibility criteria Career Advancement continued with some modifications. |
| 2000 | Universities amend their statutes to implement the above scheme. For the first time NET/ SET is brought in as eligibility condition. |
| 4.4.2000 | UGC supersedes 1991 Regulation and 1998 Notification and brings in new Minimum Qualifications Regulations. It is now mentioned that relaxation can only be made by UGC in a particular subject where NET/ SET is not being conducted or enough candidates are not available and such relaxation would only be for a specified period. Universities were directed to amend their Statutes. The Notification further provides that the Regulations concerning qualifications will not be applicable for those candidates who had the earlier requisite qualifications and who have been selected by the duly constituted selection committees prior to the enforcement of these Regulations. The consequence of non implementation could be that grants be stopped. Required qualifications are M.Phil with NET/ SET but those candidates who have M.Phil. prior to 31.12.1993 or have submitted Ph. D. thesis prior to 31.12.1993 are exempt. |
| 13.6.2000 | State Govt. G.R. adopting the above Regulations. The G.R. further provided that after 4.4.2000 no candidate be appointed without NET/ SET and if appointed grants wont be paid. |
| 3.8.2001 | Statement of Minister of Education in the Assembly stating that since the Government and the Universities had not adopted the 1991 UGC Regulations through proper legal instruments number of lecturers/teachers were appointed till 11.12.1999 without NET/ SET. |
| 18.10.2001 | Govt. Resolution. It records that between 19.9.1991 lecturers/teachers appointed. The Govt. decided that these candidates will not be removed. But they will have to clear NET/ SET by December, 2003. If they donâ™t complete by December, 2003 they will not be removed till retirement but they will only get increments only and no senior scale, selection grade, etc. From the date on which they complete NET/ SET will held eligible for senior scale, etc. Those teachers/lecturers appointed after 11.12.1999 without NET/ SET should be removed before their probationary period comes to an end. The G.R. further states that since the above NET/SET qualifications have been brought in from 4.4.2000, after that date i.e. after 4.4.2000 no non NET/ SET candidates be appointed. |
| 31.7.2002 | U.G.C.â™s 1st Amendment to 2000 qualifications Regulations. Exemption for those who have obtained M.Phil till 31.12.1993 to continue. But exemption to those who had submitted Ph.D. thesis by 31.12.1993 replaced now with exemption only to those who have submitted Ph. D. thesis by 31.12.1992. Besides it is mentioned that if these candidates fail to obtain Ph.D. they will be required to do NET/ SET. |
| December, 2002(onwards) | Universities write to UGC stating that NET/ SET was made compulsory only after the University Statutes were amended (i.e. after December, 1999) and thus those appointed prior to that date should be treated as regularly appointed. |
| 26.7.2004 | Govt. of Assam adopts NET/ SET qualification only from 24.12.1998. |
| 9.12.2004 | UGC letter to Universities. When NET exemption is granted the same should be on the footing that the concerned teacher should acquire NET/ SET within 2 years of date of exemption. |
| 14.6.2006 | U.G.C. carries out 2nd Amendment to 2000 Regulation and prescribes that candidates not having NET/ SET but having M.Phil. or Ph.D. will also be qualified as being appointed as degree college lecturers. |
| 1.6.2009 | U.G.C. Regulations for award of M.Phil. and Ph.D. Degrees requiring passing of an entrance test to do M. Phil. Or Ph.D. |
| 30.6.2009 | U.G.C. carries out 3rd Amendment to 2000 Regulations and prescribes that NET/ SET will be compulsorily required for recruitment of lecturers and the earlier exception of M. Phil. was being done away with. Those candidates not having NET/ SET but having Ph.D. in accordance with the 2009 regulations of U.G.C. will however be treated as qualified. This was litigated extensively and the Bombay High Court has passed number of judgments stating that those teachers appointed before 1.7.2009 with M. Phil and without NET/ SET will be treated as qualified. Supreme Court has passed a Judgment which deals with teachers appointed after 30.6.2009 with M.Phil. and held that such teachers (even if they obtained M.Phil. prior to 30.6.2009) will not be held eligible if they do not have NET/ SET. |
| 12.8.2009 | State Government adopts the 6th Pay Commission Scales and Career Advancement Scheme w.e.f. 1.1.2006. Qualifications required: Masters with 55% and NET/ SET. Designations changed to Asst. Professor, Associate Professor and Professor. |
| 26.8.2009 | Agreement between State and MFUCTO (Petitioner).(i) Revised Scales will also be applicable to non NET/ SET teachers approved by the University. They will be put in the lowest Scale. (ii) Decision of UGC concerning exemption from NET/ SET will be final. |
| 19.11.2009 | G.R. issued incorporating the above condition. |
| 15.12.2009 | UGC replies to RTI query enclosing detailed correspondence with State concerning exemption from NET/ SET |
| 30.6.2010 | UGC Regulations for Minimum Qualifications and Revised Pay Scales as per 6th Pay. Masters with 55% and NET/ SET.Career Advancement. |
| 2011 | Universities adopt the above Regulations of UGC. |
| 10.6.2011 | MFUCTOâ™s (Petitionerâ™s) delegation to UGC asking that the entire service of Non NET/ SET teachers from 1991 to 4.4.2000 be counted for career advancement |
| 8.7.2011 | UGCâ™s Meeting. Those Non NET/ SET teachers appointed between 19.9.1991 and 3.4.2000 and whose applications are sent by Universities to UGC be approved on regular basis. |
| 12.8.2011 | MFUCTO to U.G.C. asking clarification regarding from which date the placement be done for those appointed without NET SET between 19.9.1991 and 3.4.2000 Explanatory Note addressed by MFUCTO |
| 16.8.2011 | UGCâ™s letter to State Government communicating the decision dated 8.7.2011 |
| 26.8.2011 | UGCâ™s letter to MFUCTO (Petitioner) clarifying that services for all purposes should be counted from the time they were regularly appointed. |
| 15.3.2012 | UGCâ™s letter to the Petitioner stating that the actual date of effect for grant of exemption to a particular candidate shall be the date of exemption actually granted by the Universities to the concerned candidate appointed on âregular basisâ?. |
| 2.5.2012 | Meeting between Petitioner and the State officials took place. State agrees that the service rendered by the non NET/ SET teachers between 19.9.1991 and 3.4.2000 from the date of their appointment should be taken into consideration for all purposes. |
| 13.6.2013 | UGC minimum qualifications 2nd Amendment concerning Selection Process. |
| 27.6.2013 | Impugned G.R. of the State Government.Those appointed between 19.9.1991 and 23.10.1992 at no stage acquired NET/ SET. Services regularised of non NET/ SET candidates for 24.10.1992 to 3.4.2000 on following conditions: (a) Lecturers/Teachers should have been appointed on regular basis; (b) Appointed as per prescribed procedure; University should have approved their appointments (c) University should have submitted their proposals for its approval. Their services for all purposes will be counted from the date of the Government decision i.e. from 27.6.2013. They will be covered by the 2005 Pension Scheme. |
17. The learned counsel appearing for the parties have read and referred the various judgments including the following judgments:
1. State of Maharashtra and ors. v. Asha Bidkar and ors. (Order dt.25.03.2015 in Civil Appeal No. 10759 of 2013 by Supreme
Court)
2. Beena Inamdar v. University of Pune and ors. (2012 (1) All MR 787)
3. University of Delhi v. Raj Singh and ors. (1994) Supp (3) SCC 516)
4. Suresh Patilkhede v. Chancellor, University of Maharashtra and ors. (2012 (6) ALL MR 326)
5. T. P. George and ors v. State of Kerala and ors (1992) Supp. (3) SCC 191)
6. Baburao Yadavrao Nareddiwar v. State of Maharashtra (2002) 3 Mh. L. J. 515)
7. Jagdish Prasad Sharma and ors v. State of Bihar and ors (2013) 8 SCC 633)
8. Kalyani Mathivanan v. K. V. Jeyaraj and ors. (2015) 6 SCC 363)
9. P. Suseela and ors v. University Grants Commission and ors. (2015(8) SCC 129 Supreme Court Judgment dated 16.03.2015 in SLP (Civil) Nos.3602336032 of 2010)
10. Khandesh College Education Society v. Arjun Hari Narkhede (2011) 7 SCC 172)
11. Dr. Mahesh Kulthe v. Union of India (Judgment dated 17.10.2013 in WP/10149/2010 (Aurangabad Bench)
12. Some judgments are referred in other paragraphs of this judgment.
Relevant UGC Regulations and the State Circulars = positive representation about the mandate of the NET/SET qualification
18. The following UGC Regulations are also read and referred. The details and purpose of those Regulations are as under The detailed chart of some of them are part of record.
| Date | UGC Regulation relating to qualification of Teacher. | Qualification for Lecturer |
| 13.6.1983 | UGC (Qualifications required of a person to be appointed to a teaching staff of a University or other Institution affiliated to it)Regulation, 1982 Reg. 2 â“ Qualification as per Schedule I to X. | M.Phil or degree beyond Masterâ™s Level + MasterDegree (minimum 2nd Class) Or Master Degree (with higher 2nd Class) + First Degree (with 2nd Class) Or Master Degree (with 2nd class) + First Degree (with 1st Class) |
| 19.9.1991 | UGC (Qualifications equired of a person to be appointed to the teaching staff of the University and Institutions affiliated to it) Regulation, 1991 | Reg. 2 â“ Qualifications provided as per Schedule I First Proviso â“ Relaxation in prescribed qualification can only be made by University, with the prior approval of UGC.Second Proviso â“ These regulations shall not apply, where selection through duly constituted Selection Committee have been made prior to these regulations. Schedule I â“ Clause (3)A Good academic record + Master Degree (minimum 55% marks or equivalent grade in relevant subject) + NET/SLET. |
| 21.6.1995 | UGC (Qualifications required of a person to be appointed to the eaching staff of a University and Institutions affiliated to it) (First mendment) Regulation, 1995 | Proviso â“ Exemption from NET/SLET to candidates â“ who submitted Ph.D. thesis or who passed M.Phil exam prior to 31.12.1993. |
| 4.4.2000 | UGC (Minimum qualifications required for the appointment and Career Advancement ofTeachers in Universities and Institutions affiliated to it) Regulation, 2000. Reg. 2 â“ Qualification provided as per Annexure â“ 1.3.3 Lecturer. First Proviso â“ Any relaxation in prescribed Good academic record + Master Degree (minimum 55% marks or equivalent grade of B in the 7 point scale with later grades O, A, B, C, D, E, F in relevant subject) + NET/SLET. Note â“ NET shall remain compulsory requirement even for candidates with Ph.D. degree. But candidates who submitted Ph.D. thesis or who passing M.Phil exam prior to 31.12.1993, are exempted from NET. with group-netset- 15-1-16 31.7.2002 14.6.2006 11.7.2009 qualification can only be made by UGC a) in a particular subject in which NET is not being conducted or b) enough number of candidates are not available with NET for specified period only. This relaxation would be given based on sound justification and would apply to Universities for that particular subject for specified period. No individual applications would be entertained. Second Proviso â“ This regulations shall not be applicable where candidates were selected (having the then requisite minimum qualification) through duly constituted Selection Committee prior to enforcement of these regulations. | Good academic record + Master Degree (minimum 55% marks or equivalent grade of B in the 7 point scale with later grades O, A, B, C, D, E, F in relevant subject) + NET/SLET.Note â“ NET shall remain compulsory requirement even for candidates with Ph.D. degree. But candidates who ubmitted Ph.D. thesis or who passing M.Phil exam rior to 31.12.1993, are exempted from NET. |
| 31.7.2012 | UGC (Minimum qualifications required for the appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) (First Amendment) Regulation, 2002. | Note substituted as under:-NET shall remain compulsory requirement even for candidates with Ph.D. degree. But candidates who passing M.Phil exam prior to 31.12.1993 or who submitted Ph.D. thesis prior to 31.12.2002, are exempted from NET. |
| 14.6.2006 | UGC (Minimum qualifications required for the appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) (Second Amendment) Regulation, 2006. | Note substituted as under:-NET shall remain compulsory requirement even for candidates with Ph.D. degree. But candidates who have completed Ph.D. degree are exempted from NET for teaching at PG Level and UG Level. Candidates who completed M.Phil degree are exempted from NET for teaching at UG level. |
| 11.7.2009 | UGC (Minimum qualifications required for the appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) (Third Amendment) Regulation, 2009. | Note substituted as under -NET/SLET shall remain minimum eligibility condition for recruitment and appointment of lecturers. But, candidates who completed Ph.D. degree [in compliance with UGC (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulation, 2009] are exempted from NET/SLET. |
| 24.12.1998 5th Pay Scale w.e.f. 1.1.1996Not in Government Gazette | UGC notification on revision of pay scales, minimum qualifications for appointment of teachers in Universities and Colleges and other measures for maintenance of standards, 1998. | Letter3.1 â“ Persons to be appointed to a teaching post only if he fulfills minimum qualifications and other service conditions as indicated in the notification. 3.2 â“ Relaxation in prescribed qualification only by University, with prior approval of UGC. Notification 3.1.0 â“ Direct recruitment â“ on the basis of merit through all India advertisement and selection by duly constituted Selection Committee of concerned University and composition of Selection Committee as prescribed by UGC Regulation. 3.2.0 â“ minimum qualifications will be those as prescribed by UGC from time to time. 3.3.0 â“ minimum requirement :- good academic record + Masterâ™s degree (55%) + NET. University can exempt Ph.D. holder from NET â“ Minimum requirement of 55% should not be insisted upon for existing incumbents who are already in university system. But, 55% marks should be insisted upon for those entering the system from outside and those as entry point of lecturer. 4.4.1 - Good academic record + Master Degree (minimum 55% marks or equivalent grade of B in the 7 point scale with later grades O, A, B, C, D, E, F in relevant subject) + NET/SLET. |
| 30.6.2010 In Government Gazette dated 18.9.2010 | UGC (minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and other measures for maintenance of standards in Higher Education) Regulation, 2010. | Regulation 1.3First Proviso â“ Any candidate becomes eligible for promotion under CAS (Career Advancement Scheme) in terms of these regulations after 31.12.2008, the promotion of such candidate shall be governed by the provisions of these regulations. Second Proviso â“ In the event, any candidate became eligible for promotion under CAS prior to 31.12.2008, the promotion of such candidate under CAS shall be governed by UGC (minimum qualifications required for appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000. Regulation 2 â“ Minimum qualification as provided in Annexure. Annexure 3.0.0 â“ Recruitment and qualifications 3.1.0 â“ Direct recruitment â“ on the basis of merit through all India advertisement and selection by duly constituted Selection Committee of concerned University and composition of Selection Committee as prescribed by UGC Regulation. 3.2.0 â“ Minimum qualification will be those as prescribed by UGC regulations. 3.3.0 â“ minimum requirement :- good academic record + Masterâ™s degree (55% or equivalent grade in a point scale) + NET/SLET. 3.3.1 â“ NET/SLET/NET shall remain minimum eligibility recruitment condition for appointment of Assistant Professors. But, candidates who completed Ph.D. degree [in compliance with UGC (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulation, 2009] are exempted from NET/SLET. |
| Feb.2011Gazetted on 9.4.2011 | UGC Regulations on minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for maintenance of standards in Higher Education (First Amendment) Regulation, 2011. | Not relevant regarding qualification. |
| 13.6.2013Gazetted on 13.6.2013 | UGC (Minimum qualification for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in Higher Education) (Second Amendment)Regulation, 2013. | Not relevant regarding qualification. |
19. After going through the affidavit filed by the Respondents including their written submissions, it is clear that the State had directed all the Universities to apply the UGC Regulations 1991, by State Government Resolution dated 23.10.1992. It was made known to all, even by the Universities, at the relevant time, that âQualifications for appointment to the teaching Posts 1. No person shall be appointed to teaching posts in the University or in any College affiliated to the University or Institution recounted by the University, if he/she does not fulfill required qualifications for appropriate subject, as prescribed by University Grants Commission/University from time to time.â?.
20. All other similar directions and communications were issued from time to time by the State, based upon the UGC's Regulations. There is no denial to these Circulars and/or any challenge raised at an appropriate time by the concerned parties. The State in the year 1994 itself by the Resolution had announced that the services of teachers/lecturers who do not acquire qualification of NET/SET till 31.03.1996, should be considered as adhoc teachers, but they would not be terminated from the services with further rider that they would not be given the annual increments. It was specifically provided that their services would be considered for the purpose of CAS from the date on which they would clear the NET/SET. It was also made clear that those lecturers who had passed the NET/SET earlier would be considered as senior to others. There is nothing on record to show that the Respondents have made any representation and/or communicated to such teachers who have not acquired NET/SET that they would be treated equally with the lecturers/teachers who have acquired the NET/SET. The State positive representations, as recorded above, on the contrary, were otherwise. It is relevant to note that State Resolution dated 18.10.2001 was challenged by the lecturers who were appointed between the period 12.12.1999 to 3.4.2000 â“ 4.4.2000 to 12.6.2000 â“ 13.06.2000 to 13.10.2000. By a judgment of this Court in Vishwaprakash Laxman Sirsath v. State of Maharashtra, (2003 (2) Mh. L. J. 176) it is observed that candidates who failed to obtain NET/SET qualification be continued to be unqualified and can be continued till December 2003 and, therefore, clause 2(b) of Government Resolution dated 18.10.2001 was set aside. In the affidavit, the State has made the position very clear that the lecturers who do not clear the NET/SET would continue till their retirement with only increments without any other monetary benefits.
21. A clarification issued by UGC dated 9.12.2004 had further provided that in case the relaxation/exemptions in question for the posts were granted in view of the special circumstances, the candidates would be required to clear NET/SET within a period of two years from the date of exemptions by the UGC. We have noted even the UGC's Resolution based upon the meetings held on 3rd and 4th September 2008, though, for recommending the cases for exemption, the time was further granted of four years to pass the said examination for acquiring the additional qualification. The UGC, by communication dated 12.11.2008, was directed by the Government of India not to grant such exemptions in future and notified the Regulation of 2009, accordingly. Therefore, we have considered in totality the purpose, object and the time to time representations/directives issued by the Respondents and specifically the mandate of acquiring the NET/SET qualification in view of National Education Policy, apart from the additional benefits as announced by the State of Maharashtra. It is, therefore, clear that the Respondents, all the time have been intimating and informing to the concerned parties including to the adhoc and/or contract and/or temporary appointed lecturers/teachers, to grab the opportunity and acquire the eligibility qualification.
22. The UGC's decision of 8.7.2011, of granting exemption/relaxation in the background, therefore, itself is not sufficient to grant the claim so raised by the Petitioners in view of the peculiarity of the circumstances so reproduced. Even the communication of UGC to the State is, in no way, sufficient to compel the State to grant CAS benefits and/or related benefits other than so announced. We are inclined to observe at this stage itself that in view of the reasons given in these judgments, the relaxation/exemption, even if granted by UGC, cannot be made applicable retrospectively and the relaxation, even if any, would be only to regularise the services subject to the restricted benefits so announced by the State Government from time to time.
Teachers/Lecturers were aware of requirement of NET/SET
23. There is no material/data placed on record by such Petitioners and/or respective parties, to show that they were not aware of the basic requirement of qualification of NET/SET. Merely because the Petitioners were appointed in vacant posts, after due approval, in the circumstances so referred above, for want of non-availability of NET/SET candidates during the above period, in no way, can be stated to be the reason to overlook the mandate of the NET/SET qualification, so insisted, through out even during the period in question.
24. We are concerned not only with the appointments so made at the relevant time, but also concerned with its continuity or protection of such long services, and the benefits of the CAS which the Petitioners who have not acquired NET/SET qualification are claiming from the date of initial appointments and/or from the date of relaxation. No case is made out to grant such benefits by overlooking the facts and circumstances including about so many candidates who have after initial appointment, acquired the NET/SET qualification even during this period. If there was no such requirement and/or insistence, there was no question of these candidates to acquire and or to proceed to acquire the qualification. Non-acquisition of NET/SET for whatever may be the reason, inspite of the mandate of qualification so declared by the UGC from time to time, disentitle them to claim such similar benefits, by treating themselves equally with the persons/candidates who have acquired the qualification of NET/SET. These are clearly two distinct, distinguishable and unequal classes, cannot be treated equally or on same level. These different classes with and/or without NET/SET need to be treated differently, including for the grant of benefits of CAS and other related aspects. The persons who have acquired NET/SET qualification are entitled for all the benefits as declared by the respective Respondents from the date of acquisition of qualifications.
UGC Regulations are binding to all.
25. We are not accepting the submission that 1991 Regulations as issued under Section 26(1)(e) and, therefore, are not governed by Section 20 of UGC Act. It is difficult to dissect Section 20 and read in isolation Section 26(1)(e) and/or (g). We have to consider the total scheme of the UGC Act and the intention behind the same of insisting upon the requisite clarification and/or test. Many times Universities used to appoint teachers/lecturers without NET/SET qualification and had made representation for post facto approval to the UGC. The clauses so read about the Regulations clearly provide for âprior approvalâ? from UGC which admittedly was not obtained before appointment. In our view, the Petitioners wrongly relied upon University of Delhi (supra) for their submission that proviso of clause (2) of the Regulations of 19.09.1991 are directory in nature. The power to appoint by the Institutions/Colleges/University to select its teachers is not restricted. The requirement of such teachers to have the qualification, and as in fact many teachers/lecturers have acquired such qualification, that itself is sufficient to reject the contention of the Petitioners to treat the condition and/or requirements of the Regulations being recommendatory. The UGC Regulations dated 4.4.2000 cannot be used and utilised by the Petitioners to say that NET/SET qualification requirement held to be mandatory, subsequently.
Teacher with and without NET/SET/TEST/QUALIFICATION and their stated equal rights?
26. We are also concerned with the categories of the teachers who were granted individual and/or common relaxation by the UGC. The teachers who acquired the required qualification are getting their CAS and other benefits from the date of acquisition of this qualification. The teachers who have not acquired the qualification are also claiming the similar benefits from the date of their initial appointments. The teachers from private aided colleges and/or from Government colleges and/or from unaided colleges are also involved in the matter.
27. Various schemes, regulations, framed by UGC from time to time are read and referred by the counsel. The counsel have read and referred the provisions of respective University Acts. There is no serious dispute with regard to these provisions of the respective Universities so referred, including their power to permit to appoint teacher/staff as and when necessary, but by following the due procedure of law and taking note of declared and prescribed qualification for different classes of teachers including additional qualifications so prescribed by the UGC.
28. The respective Universities have also filed their affidavits basically supporting the Petitioners' cases who have not completed the NET/SET qualification or who have not acquired the NET/SET qualification. The Universities in their affidavits submitted that they have permitted to appoint these teachers by following the due procedure of law, but in view of exigency and urgency for want of teacher at the relevant time, without NET/SET qualification, as no much qualified candidates were available, during the period between 19.09.1991 to 3.4.2000. Admittedly, the Universities, based upon the Rules, Regulations and Scheme so announced including by the State through the various Associations had made the representations to the UGC to grant the relaxation. The parties have read and referred those representations. We have noted that the applications/representations for relaxation were forwarded by the Universities on behalf of such persons who have not acquired NET/SET qualification but are appointed at the respective posts. Those relaxation applications were considered and decided by the UGC from time to time on the respective applications and granted relaxation from the date so specified. Such Petitioners are also, though not acquired NET/SET qualification claiming all the CAS benefits from the date of their respective appointments or at least from the date of relaxation, along with the teachers/persons who have acquired the NET/SET.
29. The State has filed affidavit dated 1 October 2015, opposing such Petitioner's claim in every aspect. However, considering the facts and circumstances at the relevant time, basically between the period from 19.9.1991 and 3.4.2000, as there were no fully eligible candidates available and there was urgent requirement of teachers to be appointed for the respective vacant posts, so that the students education should continue, the State had been insisting for many years, and extended the period, so as to enable such teachers to acquire qualification of NET/SET. The teachers appointed between this period, have been extended the limited benefits by the State Circulars, in the interest of justice and considering the long continuity in service. [The said State action, therefore, is also challenged by the persons who have acquired the NET/SET qualification already.] We find nothing wrong with the Circular as it is in the interest of all the concerned in above background and as it is within the power and jurisdiction of the State when it comes to regularisation of service of such teachers, including grant of continuity with the limited monetary benefits, except CAS and related aspects.
Teachers duly appointed, but without NET/SET qualification regularisation
30. The appointments were made by the duly constituted Selection Committee as per the respective University Statutes including Act, Ordinance, Statutes etc. (The University Statutes). The appointments were against the clear vacant posts and taking note of constitutional reservation at the time of appointments as at the relevant time, NET/SET qualified candidates were not available sufficiently. It is stated that in some cases, in the advertisement, there was no reference of NET/SET qualification. All these Petitioners have been continuing in service without any break and receiving the pay scale and annual increments regularly. They have been claiming permanency after completion of probation. The State ultimately has granted the same by impugned Circular/Resolution dated 27 June 2013.
NET/SET qualification compulsory ?
31. We are not inclined to accept the contention that there was no provision either in the Statute and/or the Act making NET/SET qualification compulsory. The fact that more than two lac persons/teachers/professions/candidates have already acquired NET/SET even some of them during the period 19.09.1991 to 3.4.2000, itself sufficient to deny the contention of such Petitioners. The sending of proposal for exemption/relaxation for the post from NET/SET qualification by the Universities/Colleges, after going through the respective proposals, in most of the matters, show that it was referring to the initial appointments so made at the relevant time for want of qualified NET/SET candidates. The Regulations so referred above, including of the year 1991, itself provide that the prior approval for the relaxation would be obtained by the Universities/Colleges before appointment. It was also with intention for providing them time for acquiring NET/SET qualification. After reading the Regulations and the State Circular so recorded above and after hearing both the parties, we find no substance in the Petitioner's submission that this relaxation for the post to the Universities so granted was for all the purposes as claimed, even for the CAS from the date of initial appointments and/or from the date of exemption granted by the Universities.
Post-Proposal by the Universities for ârelaxationâ? or âexemptionâ?
32. The proposal submitted on behalf of the Petitioners for relaxation for the respective post of Universities itself contemplates the existence of binding condition of acquiring NET/SET qualification as announced and mandated by the UGC from time to time.
33. The Supreme Court in University of Delhi (supra) dealt with the UGC Regulations notified on 19.09.1991 for appointment of teaching staff of University and Institutions affiliated to it, whereby it was necessary to appoint/select lecturers in accordance with the said Regulations. However, referring to first proviso to clause 2 of the Regulations, it is observed that the clause permits relaxation in the prescribed qualification by a University, with the prior approval of the UGC. This Regulation is made under the provisions of Section 26(1) (e) which defines the qualification that are âordinarilyâ? and not âinvariablyâ? required of a lecturer. These provisions cannot be read in isolation. The consequences of failure of University to comply with the recommendations made, are also dealt with by referring to Section 14 of the UGC Act. It is also noted that the selection process so followed before selecting the lecturers by written tests and interviews or either the University's autonomy, was not entrenched upon by the Regulation. The power of UGC of relaxing the requirement of clearing the NET/SET, therefore, has been recognized by the Supreme Court in University of Delhi (supra). The Supreme Court has ultimately concluded as under:
â24 â¦..... As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said Regulations; or it may seek prior approval for the relaxation of this requirement in a specific case; or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC's approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the UGC, forfeit its grant from the UGC. If, however, it did show cause to the satisfaction of the UGC, it not only would not forfeit its grant but the appointment made without obtaining the UGC's prior approval would stand regularised.â?
34. In present matters also, we are inclined to observe that the provision was specifically made of relaxation. The UGC, at relevant time, was empowered to grant relaxation after considering the various factors and subject to their satisfaction, as appointments were required to be made by the University/colleges of such lecturers, without required qualification, but it was subject to prior approval. Once the approval is granted, the appointments made even without obtaining the UGC's prior approval, would stand regularised but for limited purpose.
Only âregularisationâ? or âcontinuity of service to Non-NET/SET and related State pay scale and increments
35. We have also noted that the proposals submitted by Universities/Petitioners though scrutinized by the expert committee of UGC and thereafter placed before the Exemption Committee and vide order dated 23 March 2010, communicated its decision granting the exemption to some Petitioners from passing the NET/SET qualification is required to be read and to mean for the basic appointments so made at the relevant time during this period, and not for benefits of CAS from the date of initial appointments so claimed and/or from the date of exemption granted by the UGC. The relaxation so granted after so many years, after repeated representations made by the concerned parties, in no way, read to mean that such non-NET/SET persons be treated equally with the candidates who posses the NET/SET qualification.
36. The regularisation of service from the date of initial appointment, in our view, also cannot be disturbed as they have admittedly have been working during the situation where NET/SET candidates were not available. The State is required to strike the balance in the interest of all the concerned, being the paying authority of salary and all other related benefits to such lecturers/teachers. This is also in view of the State's obligations to provide and facilitate all kinds of education to all the concerned. The State's extension to grant them annual increments and benefits of Fifth and Sixth Pay Commission, in the background and the future related benefits, if occasion comes we are not inclined to disturb the same. There is no question of granting benefit of seniority from the date of their initial appointments and/or from the date of their relaxation or confirmation, as prayed. The protection of service of Petitioners by these exemptions/relaxations cannot be equated with the persons who got other benefits including CAS as they have passed the NET/SET examination. The persons appointed with due qualification need to be respected in every aspect. The reliance so placed on Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and ors, ((1990) 2 SCC 715) is also of no assistance as the basic requisite NET/SET qualification throughout was the essential condition of such service, which admittedly was not acquired by such Petitioners. There is no legal right/entitlement so claimed by the Petitioners for want of qualification itself.
Role of UGC to grant approval to exemption or relaxation
37. It is relevant to note that all the parties including the teachers/candidates at the relevant time, during these periods, were fully aware of the State Government Resolutions dated 12.12.1995, 12.05.1998, 26.08.1999, 18.10.2001, whereby protective reliefs and the monetary benefits have been extended to non-NET/ SET teachers. The condition of acquisition of NET/SET was never specifically waived by the State for the reliefs so claimed in the Petitions. Every such teachers have accepted the benefits. There is no issue that non-NET/SET teachers, inspite of no requisite qualification of NET/SET have been getting pay Commission's scale, HRA, Leave Travel Allowance, DA, TA and all other related benefits, including increments and pension and gratuity.
38. Communication dated 26.08.2011 between the State and the Petitioner after the Meeting held with the Chief Minister on 2.5.2012 would not prevail over the position of law and the Circulars/Resolutions/Regulations, so issued from time to time. The role of UGC is therefore restricted by declaring required qualification for the requisite posts. This power, in no way, can be extended to compel the State to pay the salary and/or requisite benefits. The State's power, therefore, to grant the salary and related benefits based upon their constitutional obligation and the need of the time, including their power to grant the benefits to the NET/SET acquired candidates and/or deny the benefits who have not acquired such qualification in no way can be stated to be unjust or contrary to any provisions. Such power is not arbitrary and/or discriminatory.
State Adoption of Regulations
39. The submission, based upon the case of Kalyani (supra) referring to paragraphs 56 to 62 that the UGC's Regulations are not applicable unless they are adopted, in the facts and circumstances, are liable to be rejected as the Petitioners/Respondents have been acting upon the same since long and proceeded accordingly since so many years. Therefore, the submission that UGC Regulations do not become automatically binding on the State Government or the Universities is also incorrect. The mandate of requisite qualification and insistence for the appointments based upon the same itself shows that such qualification so announced from time to time and as insisted upon has a binding force for all the concerned.
40. Both the parties have read and relied also upon Kalyani (supra), wherein the Apex Court has dealt with the provisions of Articles 246, 254 of Constitution of India, Schedule VII List I, Entry 66 and List III Entry 25, read with the provisions of UGC Act and the UGC Regulations 2010 and University framed Statues, Ordinances, Rules, Regulations and Norms and held as under:
â27. From the aforesaid provisions, we find that the University Grants Commission has been established for the determination of standard of Universities, promotion and coordination of University education, for the determination and maintenance of standards of teaching, examination and research in Universities, for defining the qualifications regarding the teaching staff of the University, maintenance of standards etc. For the purpose of performing its functions under the UGC Act (see Section 12) like defining the qualifications and standard that should ordinarily be required of any person to be appointed in the Universities [see Section 26(1)(e)(g)] UGC is empowered to frame regulations. It is only when both the Houses of the Parliament approve the regulation, the same can be given effect. Thus, we hold that the U.G.C. Regulations though a subordinate legislation has binding effect on the Universities to which it applies; and consequence of failure of the University to comply with the recommendations of the Commission, the UGC may withhold the grants to the university made out of the Fund of the Commission. (See Section 14) 62 In view of the discussion as made above, we hold:
62.1 To the extent the State Legislation is in conflict with Central Legislation including subordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative.
62.2 The UGC Regulations being passed by both the Houses of Parliament, though a subordinate legislation has binding effect on the Universities to which it applies.
62.3 UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central Universities and Colleges thereunder and the Institutions deemed to be Universities whose maintenance expenditure is met by the UGC.
62.4 UGC Regulations, 2010 is directory for the Universities, Colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement the Scheme. Thus, UGC Regulations, 2010 is partly mandatory and is partly directory.
62.5 UGC Regulations, 2010 having not adopted by the State Tamil Nadu, the question of conflict between State Legislation and Statutes framed under Central Legislation does not arise. Once it is adopted by the State Government, the State Legislation to be amended appropriately. In such case also there shall be no conflict between the State Legislation and the Central Legislation.â?
This decision of 11.03.2015 based upon the events and law of the year 2011-2012. We are not concerned with the appointments made after 3/4/2000. This judgment is also after all the earlier High Court judgments referred and cited by the parties.
41. In these present matters, the State by the impugned Circular, itself has endorsed the adoption of Regulations in 1992 and therefore, granted benefits accordingly, subject to conditions so mentioned. All the parties have been acting upon the same since 1991/1992 to 2000, now cannot be permitted to challenge the same. The submission of non-NET/ SET Petitioners are self contradictory. They have been enjoying all the State benefits so declared from time to time, now claiming equality with the candidates who have possessed the NET/SET qualification. They are bound by those Policies and the conditions.
42. The submission of the learned counsel appearing for the Petitioners who have not acquired the NET/SET qualification that the UGC Regulations dated 19.9.1991 are binding only if adopted by the State and/or Universities and/or not automatically binding is incorrect and unacceptable. There is no justification coming on record and/or placed on record why others have completed and acquired NET/SET qualification even during this period. The adoption arguments by the State is after thought and is contrary to the record and the conduct of the Petitioners.
43. We have also noted that there is no specific provision under the UGC Act and/or in the Maharashtra Universities Act which requires that UGC Regulations are required to be adopted by the State Government and/or by University. Neither it is supported by any judgments. In some cases, Pune University, on 28.08.1986 have adopted the UGC Regulations and so also by the State Government Resolution dated 27.02.1989.
44. Reliance is also placed in T. P. George v. State of Kerala (supra) to support their contentions that UGC Regulations do not bind automatically, unless it is specifically adopted by a Statute/University. The adoption of Universities in 2000, even if any, would not affect the rights of such appointee, without NET/SET qualification during the period 1991 to 2000. This judgment is of no assistance to the non-NET/SET Petitioners, specifically in view of the recent Supreme Court judgments in âSuseelaâ?, âKalyaniâ? and the order in âAsha Bidkarâ? (supra), and the provisions of mandate so reinforced by giving importance to the qualification prescribed by the UGC in the interest of excellence of Education. There was no question to keep the relaxation issues pending for so many years by the UGC, though the appointments were made without any prior relaxation/approval of requisite qualifications for such period.
Post or prior ârelaxationâ? by UGC
45. After going through the documents so placed on record, including the basic qualification and regulations, we have noted that the word âprior relaxationâ? was used for the initial appointment on the respective post of lecturer/professor. There is nothing mentioned and/or pointed out that the stated relaxation was granted prior to or on the date of their appointments. On the contrary, the documents and the communication of UGC shows that the relaxation to the posts were granted, after 8 to 15 years from the date of respective dates of appointments so mentioned in the communication by the UGC.
UGC cut off date 3.4.2000 to grant of relaxation
46. We are not inclined to accept the case that the UGC's cut off date i.e. 3-4-2000 was the last date for granting relaxation as that was the date from which the UGC's minimum qualification came into effect. We are not inclined to accept the case that NET/SET qualification became mandatory only from 4.4.2000. We are not inclined to accept that the qualification criteria was never a criteria for CAS. It means the Petitioners appointments were treated adhoc, by
the State, for the purpose of CAS. The late relaxation, in the circumstances, in view of mandate so declared, even if any, cannot be sufficient to treat them equally with candidates who have acquired NET/SET in time.
University Statute cannot be read in isolation
47. The provisions of earlier University Acts, in no way, assist the Petitioners to claim these benefits, in view of clear declaration from time to time by the State Circulars, (State affidavit) and UGC Regulations 1991 (UGC Affidavit). All the concerned were aware of the requirement of NET/SET/TEST qualifications. Such eligibility/mandatory tests, which affects the selection and appointments, cannot be overlooked merely because in 11/7/2009 (UGC) Notification specifically made NET/SET eligibility criteria as mandatory. This in no way can be read to mean it was earlier recommendatory, and not binding.
48. We are not willing to accept the submissions so made by the learned counsel appearing for the Petitioners that 1991 Regulations of UGC are not mandatory referring to cases of Raj Singh, Beena Inamdar and Jagdish Prasad (supra). The effect of Regulation of UGC and its requirement, considering the aims and objects of UGC Act and Regulations so framed cannot be overlooked as the requisite qualification is for the excellence of education.
49. The provisions of the University Statutes cannot be read in isolation without reading the qualification so prescribed by the UGC which binds all the concerned, including the University, College and Teachers. The University, the State Government, therefore, are under obligation to follow and take note of qualifications so declared for appointments and for grant of benefits so announced. The judgment in Khandesh (supra) is of no assistance. The judgment of Supreme Court in Khandesh (supra) dealt with the aspect of Earned Leave and encashment of unutilised Earned Leave on the retirement of teachers/lecturers who were working in aided private college, therefore, held not to be the Government servants. This judgment is also of no assistance to the Petitioners.
Union of India's stand â“ UGC has no power to grant exemption
50. The learned senior counsel appearing for the Union of India referring to the provisions of UGC Act and the affidavit so filed, for the first time in this Petition, submitted that the UGC has no power to grant any exemption for want of specific exemption provisions under the UGC Act. The statement is made that such arguments are not made even before the Supreme Court and/or in pending matters. This Court has, as recorded, in many matters earlier, directed UGC to consider/decide the proposal of granting exemption or relaxation. The UGC, as recorded, apart from other and/or even for want of provision, as contended, but pursuant to orders passed by this Court, have implemented the orders and granted the same. The learned counsel for the UGC stated that the UGC nowhere received any such adverse communication earlier at any point of time, except the affidavit in question, for the first time in this Court. We have noted that the UGC after granting the relaxation in the background, in the year 2011, has forwarded the communication to the Union of India for appropriate approval. Admittedly, there was no refusal or return communication received at the relevant time. After reading the provisions and the regulations so referred, even assuming for want of specific provisions in law about the power of UGC to grant âexemptionâ?, the power of ârelaxationâ? in qualification, including of NET/SET for the appointment, is clearly provided in UGC Regulations since 1991 itself. Mere use of the word âexemptionâ? that itself cannot be read to mean that the UGC has no power of ârelaxationâ? in qualification. The Rules/Regulations specifically prescribe such power.
51. We are not inclined to accept the submission of Union of India/Central Government, to extent that all the exemptions granted by UGC are without jurisdiction. The learned counsel appearing for the UGC has read and referred various regulations and Circulars/Resolutions and the communication whereby they have admittedly proceeded and granted relaxation/exemption.
52. The power to relax, in our view, was for the basic appointment or for the post and not for any other State benefits. The challenge of the regulations not placing before the House of Parliament is also unacceptable, at this stage of proceedings.
53. The non-NET/SET candidates cannot compare themselves with the persons who acquired Ph.D and M. Phil upto a particular date. The relaxation so granted and as upheld in University Grants Commission v. Sadhna Chaudhari, (1996) 10 SCC 536) cannot be the reason and is of no assistance to grant the relief so prayed as facts and circumstances are different.
54. The Supreme Court judgment dated 16.03.2015 in P. Suseela (supra), is based upon the events between the period 2011 to 2015 and the related UGC Rules/Regulations. This judgment is arising out of a large number of Appeals of four High Courts, including of Delhi High Court, dated 6 December 2010, whereby, the constitutional validity of the UGC Regulations 2009 under which NET/SET held to be the minimum eligibility condition for recruitment and appointments of lecturers/teachers in University/Colleges/Institutions. The law so declared reiterating the mandate of provisions of UGC Act and the Regulations made thereunder, including the interpretations of Sections 20 and 26(1)(e) are relevant considering the issues so raised by the Petitioners.
55. The Apex Court in P. Suseela (supra), after considering the rival contentions, decided the the issues about âthe legitimate expectationâ? and âvested rights if not eligibleâ? in the matter of appointments so also the importance of the directions issued under Section 20 of the UGC Act and observed as under:
â12 â¦..These directions are not only made in exercise of powers under Section 20 of the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act. It is clear, therefore, that any regulation made under Section 26 must conform to directions issued by the Central Government under Section 20 of the Act.
13 â¦.........It is clear, therefore, that Section 26(2) would not stand in the way of the directions issued in the present case by the Central Government to the Commission.
15. 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.
17. 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 natio0nal eligibility test is laid down. True, there may have been exemptions laid down by the 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 â“ in fact it is a core function of the UGC to see that such standards do not get diluted.
22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government.â?
56. The Supreme Court in Suseela's case (supra) has declared that these Central Government directions are prospective and would apply to the appointments made after 2009 regulations. Everybody needs to follow these directions issued under Section 20 of UGC Act. However, in the present facts and circumstances, as we are concerned with the appointments so made of teachers during the year 1991 to 2000 and in view of the order passed by the Division Bench of this Court in many matters including Mohan Kulte (supra) the power of relaxation of UGC of the persons appointed between 1991 and 2000 would not be affected by this direction. The High Court judgments have attained the finality.
High Court's orders to consider proposal for exemptions/relaxations.
57. The learned counsel appearing for the Petitioners in support of their submissions have also read and referred judgment of this Court apart from the judgment of Supreme Court so referred above, including judgment dated 20.02.2002 in Vishwaprakash (supra) whereby directions were issued for sending the cases of Petitioners to UGC from colleges through the concerned Universities based on the provisions of 19.09.1991 and 4.4.2000 Regulations for claiming relaxations/exemptions. In another matter, by order dated 18.04.2002, further time was granted to the college/University and UGC to complete the process of exemption. This order, as stated earlier, remained intact as there was no further challenge raised to the same. On the contrary, the UGC, as recorded earlier, has already, though late, acted upon the same.
The relaxation, if any, that itself no reason to claim equal benefits.
58. The relaxation, even if, granted pursuant to the orders so referred above and/or otherwise that itself, in our view, cannot be the foundation and/or reason to act against the said policy decision of State Government not to grant the said CAS benefits to such non-NET/SET teachers appointed between 19.09.1991 and 3.4.2000.
59. The order passed by the Division Bench dated 20.04.2011 in Writ Petition No. 4908 of 2010 (Smt. Meenakshi Ajay Jumle and Anr. Vs. State of Maharashtra and Ors.) was on a foundation of granting them CAS benefits in senior scale and selection grade as NET/SET exemptions were granted by UGC/University and by counting their past service from the first date of regular appointment. The direction was issued to UGC to communicate to the State the date on which the exemption became effective as per Notification dated 5.11.2008. The State Government, however, considering the totality of the matter has now taken the policy decision to grant benefit from the date of Notification which cannot be faulted. This is also for the reason that non-NET/SET teachers/lecturers are different than the teachers who possess the NET/SET qualification. They are not equal as recorded above. We are not inclined to issue direction to cover all the teachers appointed during the period from 19.09.1991 to 3.4.2000 whose representations for approval were sent to the UGC for such benefits. The other judgments so cited by the learned counsel appearing for the Petitioners are also of no assistance as those facts and circumstances are different.
60. The reliance on judgment dated 20.10.2010 (Aurangabad Bench) in Writ Petition No.357 of 2010, Atul Suresh Patil and Ors. Vs. State of Maharashtra and Ors., was in the background of challenge to the UGC Notification dated 11.07.2009 and as stated to be recorded to act prospectively, so far as the necessity to have NET/SET qualification in the cases of M. Phil and Ph. D degree holders. Therefore, it was observed that for those candidates qualification of NET/SET was not compulsory. This judgment, therefore, is also of no assistance.
61. In Dr. Mahesh Kulthe, the Division Bench based upon Asha Bidkar vs. State of Maharashtra (2014 (1) All MR 116), including the other judgments so referred, has quashed and set aside the communication referring to the pay fixation of the lecturers taking into account the dates of their appointments and gave them benefit of CAS. The fact that the Supreme Court has stayed the judgment (Asha Bidkar) and directed to decide the issue afresh therefore, also the judgment of Dr. Mahesh Kulthe (supra), in our view, is of no assistance except the fact that the UGC has acted upon the same, as even accepted by the counsel for the UGC. We are not inclined to accept the case that the services of such teachers should be counted from the date of their regular appointment.
62. A Division Bench judgment dated 20.04.2011 in Writ Petition No.4909 of 2010-Tikaram Dewaji Kose and ors v. State of Maharashtra and ors., (Nagpur Bench) directed the UGC to communicate to the State Government the date when such relaxation/exemption become effective. Accordingly it was provided.
63. All the appointments made during the period 1991 to 2000 have been protected by the State. Therefore, the decision in Sudhir Sharadrao Hunge v. State of Maharashtra, (2010 (4) Mh. L. J. 572) and/or judgment in Atul Suresh Patil v. The State of Maharashtra (Judgment dt. 20 October 2010 in WP/357/2010 Aurangabad Bench) will not carry the Petitioners case further to claim CAS benefits and/or to declare Clauses 15/16 of impugned State Resolution bad in law.
64. The State's earlier affidavit, where willingness was expressed to provide CAS benefits, after stated relaxation by the UGC, even if any, in view of the policy decision so taken, being empowered to do so and now issued the impugned Resolution/circular by giving restricted benefits, subject to conditions, in our view, is just and proper.
65. A Division Bench of this Court in Suresh Patilkhede (supra) on 11 May 2012, in a Public Interest Litigation, while dealing with the UGC Act, Sections 12(d), 12(j) and 26(1) and Maharashtra Universities Act, 1994 and UGC (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in University and Colleges and Measures for Maintenance of Standards in Education) Regulations 2010, held that Regulation 7.3.0, is recommendatory in nature. We are not concerned with the said Regulation. However, considering the recent Supreme Court judgments so referred above in P. Suseela, Kalyani Mathivanan and the order in State of Maharashtra v. Asha Bidkar (supra), this judgment is of no assistance to the Petitioners to support their case.
66. In Baburao (supra), a Division Bench of this Court, dealt with the right of teacher which flow from the Statute framed by the University including the issue of age of superannuations. This judgment on facts is distinguishable. We are not dealing with the issue of superannuation in the present matters.
UGC power of relaxation or exemption
67. The basic events as stated by the learned counsel appearing for UGC are as under, which they have filed along with their submissions and as per the affidavit filed in the present Petition and also before the Supreme Court of India in support of their contention. The stand taken accordingly, while granting the stated relaxation for the post at the relevant time:
| Sr.No. | Dates | Events |
| 1 | 12.11.08 | Direction under Sec.20 of UGC Act, 1956 issued by Ministry of Human Resources Development, Govt. of India to UGC (i) to frame appropriate Regulations within a period of 30 days from the date of issue of this order prescribing that qualifying in NET/SLET shall generally be compulsory ⦠and (ii) that a Degree of PhD Awarded by the University shall be in compliance with the procedure prescribed under the UGC Regulation. |
| 2 | 11/7/2009 | UGC issued Regulations in pursuance of the above mentioned Direction issued by Government of India(GOI for short); providing thereby thus (i) NET/SLET shall remain minimum condition for recruitment and appointment of Lecturer in Universities/Colleges/Institutions; (iii) Proviso that Candidate for being Awarded PhD Degree will have to ensure compliance with âUGC (minimum Higher Standards and procedure for Award of PhD Degree) Regulation 2009. |
| 3 | 30.03.2010 | A further Directive under Sec 20 issued by MHRD Ministry Government of India under Sec 20 of UGC Act, 1956; listing therein 3 clauses thus; (i) UGC shall not take up specific cases for exemption from the application of 2009 NET/Regulation after the said Regulations have come into forceâ¦.. for app ointment as Lecturers in Universities/ Colleges/Institutions; (ii) that appropriate Amendment to the 2nd Proviso to Clause (2) of the UGC 2000 Regulation shall be made by UGC to give full effect to the policy direction of the Central Government dated 12.11.2008, within 30 days from the date of issue of present direction; (iii) that the decision taken in its 468th meeting held on 23.02.2010 vide Agenda Items 6.04 and 6.05 to grant Specific Exemptions from the applicability of NET shall not be implemented â¦â¦. |
| 4 | 18/9/2010 | Pursuant to the aforementioned Directive, UGC framed 2010 Regulations, incorporating the aforestated stipulations. |
| 5. | 12.08.2010 and 27.09.2010 | UGC passed 2 Resolutions at its 471st meeting held on 12.08.2010 and 472nd Meeting held on 27.09.2010 that the said Regulations are prospective in nature; as more particularly set out in those Regulations. |
| 6. | 03.11.2010 | Government of India issued a (Demi-official) D.O. Letter dated 03.11.201 disagreeing with the aforestated decision of UGC and whereby it was stated that a Candidate seeking appointment for the Post of Asst professor /Lecturer must fulfill the minimum Eligibility condition of having passed NET Test. |
| 7 | 08.07.2011 | UGC held its 479th meeting whereat it took a decision to grant NET/SLET Exemption to the Teachers appointed on regular basis between September 19, 1991 and till 03.04.2000 in the State of Maharashtra; based on 1991 and 1998 UGC Regulations in view of various representations received from the Universities in Maharashtra as more particularly set-out in the saidresolution. Incidentally, the said representations also made reference to certain Judicial Orders passed by this Honâ™ble Court. |
| 8. | 16.08.2011 | A communication sent by UGC to Government of Maharashtra, regarding the aforementioned UGC Resolution |
| 9. | 24th Aug, 2011 | UGC held its 480th meeting : wherein proceedings of the aforementioned 479th Meeting were confirmed; and wherein again the then Secretary, MHRD GOI, was present and at both the said UGC meetings; there was no observation made on behalf of MHRD, Govt of India on the exemption issue. |
| 10. | 6th Sept 2011 | A communication sent by UGC about the aforementioned 479th Meeting to the Personal Secretary of the then Human Resources Minister, and Secretary of MHRD, Govt, of India. At the said 479th Meeting held on 8.7.2011, Ministry of HRD , Government of India (GOI), was represented by the then Secretary (Higher Education). No observation made at the said meetings on behalf of MHRD; GOI |
| 11. | 18.6.12 | Letter sent by the Dy. Secretary MHRD, GOI, to the Secretary UGC enclosing herewith an application ------A reference received from Prof. Santosh Kumar M. Patil |
| 12 | 27.12.2013 | A reply to the aforementioned MHRD, GOI letter dated 18/6/12 sent by UGC Secretary to Joint Secretary (Higher Education) Ministry of HRD, GOI. |
| 13 | 17th Oct, 2013 | Judgment and order passed by Aurangabad Bench High Court in Writ Petition No. 10149 of 2010 wherein Union of India was also a party. The authorities to consider Petitioners cases for granting exemptionâ¦. Without being tramelled by direction dated 30/3/2010 issued by HRD Ministry (para 31 of the said Judgment â“ direction dated 30/3/2010 was issued u/s 20 of UGC Act, 1956. No review filed against the said order nor SLP filed. |
| 14 | 9th Oct, 2014 | MHRD Govt. of India letter for UGC referring to earlier D.O. letter dated 21/04/2014 in connection with the said Judgment of Aurangabad Bench in WP.No.10149/10 (Dr. Mahesh S/o P. Kulthe v/s. UOI, UGC and Ors and asking UGC to respond to contempt Petitions. |
| 15 | 15th Aug, 2015 | A detailed order passed by UGC in compliance with the said Judgment and order in WP.No.10149 of 2010 passed by the Aurangabad Bench as above, mentioned in sr no13. |
| 16 | 31st July, 2013 | 494th UGC, meeting was held whereat UGC commission approved and decided that all such cases where faculty appointment were made by the college prior to 2000 with prior approval of the affiliating University, may considered for similar exemption. |
69. The affidavit filed by UGC in various matters also accept that the direction of the Central Government do not apply to the appointments in question and the applications for approval made accordingly. The submission, therefore, now raised by the learned counsel appearing for the Central Government/Union of India about these regulations prescribing relaxation for the persons who are appointed during 1991 and 2000 is therefore unacceptable. The power to grant such relaxation for the post to the UGC to non-NET/SET teachers appointed during 1991 and 2000 for the purposes of regularising the appointments, therefore, need to be accepted. The UGC resolution in the meeting dated 8.7.2011 to grant approval, in State of Maharashtra, where Universities have granted exemption from requirement of NET, based upon 1991 and 1998 is not against the Supreme Court's decisions. The Central Government and the State are not accepting the stated exemption effect as sought to be contended by the non-NET/SET Petitioners. Any decision even of UGC, if contrary to the clear provisions, it will not be given effect to, is the case of Union of India and as that of the State also. Merely because the counting of past service is necessary as per UGC Regulations, the State policy to regularise such services from the date of resolution, cannot be used against the State for CAS claim.
70. We are inclined to accept the following contentions of the State (Respondents 1 and 2) filed through affidavit dated 1 October 2015 in Writ Petition No.2082 of 2013 which reads as under:
â29. I further say that under the provision of Section 8 of Maharashtra Universities Act, 1994, the University is not empowered to revise pay, allowance, other benefits etc to teachers, employees, grant any special pay, allowance or other extra remuneration or any benefits having financial implications on State Government. Thus, the university cannot take any decision related to matters which has financial implications, without prior permission of the State Government or unless and until State Government accepts it. I further say and submit that it is thus clear that the services of concerned teachers who did not fulfill qualification as per UGC Regulation, 1991 could not have been considered for any benefits, till the G.R. Dated 27.06.2013. I say that, from the date of 27.06.2013 State Government has accepted financial responsibility of the Non-NET/SET teachers appointed during the period of 19.09.1991 to 03.04.2000. However, the impugned G.R has been issued sympathetically considering situation which has been arisen out of large scale irregular appointments, hence, the concerned teachers do not acquire any right of claiming the benefits from date of appointments or any earlier date than prescribed in the impugned G.R. Thus it is humbly submitted before the Hon'ble High Court that the submission of the petitioners regarding giving the benefits of the CAS from the date of their initial appointment without having NET/SET qualification may kindly be quashed and set aside as per the issue is not only related to the petitioners but is covers very large number of teachers and it will prejudicially affect the interest of Net/MPhil/Ph.D qualified teachers and accordingly will pollute whole state of Higher Education. I, therefore submit that in the facts and circumstances raised herein above, the said Writ Petition and other similar writ petitions be dismissed with costs.â?
71. Strong reliance was placed by the learned counsel appearing for the Petitioners who are holders of NET/SET qualification on the judgment of a Division Bench of this Court in Beena Inamdar v. University of Pune (supra). While dealing with the provisions of Maharashtra Universities Act, 1994, Sections 5(9), 5(60), 14(8) and the UGC Act, Sections 12 (d), 14, 26(1)(e), it is noted that the qualification prescribed by the UGC, though not provided in the State University Act or the Statute, the University is not absolved from abiding by the qualifications prescribed by the UGC. This is in the background that all the Universities are affiliated to the UGC specifically for the grant and related benefits. Referring to various Supreme Court judgments, it is concluded that all the Universities or the Colleges affiliated to such Universities to such Universities are bound by UGC Regulations. The non-compliance, if any, can be excused by relaxation only by the UGC, if case is made out and not as of right. This reported case was also a case of appointments of non-NET/SET candidates, as the Principal of the College based upon advertisement dated 6 July 2006. The facts are distinguishable, but the law so laid down giving importance to the UGC declared prescribed qualification, cannot be overlooked. The judgment of Supreme Court in University of Delhi v. Raj Singh (supra) along with others was referred by the Division Bench and thereby dismissed the petition giving importance to the prescribed qualification for the related posts of Principal.
72. The State's conscious decision knowing fully the consequences thereto including the obligations of disbursement of salaries and all related benefits itself projected the important role in dealing with the employment and service matters of education institutions, covering by Universities, which are affiliated to the UGC.
Ph. D./M.Phil are exempted from NET/SET
73. Merely because some of the NET/SET candidates based upon then existing merit and/or otherwise after acquiring Ph.D/M. Phil have been appointed as Principal of Colleges and got all the benefits that itself cannot be the reason to extend the benefit similar to the NET/SET qualified teachers. We see there is nothing wrong when the State Government has taken a policy decision to grant the declared benefits to the non-NET/SET teachers. Merely because for some subjects, NET/SET examinations were not available, but the appointments were made, without NET/SET test, is a different issue. These are two different classes. The doctrine of equal pay and status for equal work cannot be extended as prayed, in the circumstances.
74. The regularisation of services of non-NET/SET candidates, because of State Resolution and/or relaxation so granted by the UGC that itself is not sufficient to treat them equally with the candidates who have passed the NET/SET and acquired basic eligibility for the post. The Supreme Court Judgment in Jagdish Kumar and ors v. State of H. P. (2005) 13 SCC 606) is on different facts and circumstances specifically in view of specific conditions so put in by the State and the UGC to get all the rights and the benefits from the date of appointments or from the date of acquiring qualification. These are not the cases of challenge to the seniority list to be prepared based upon the passed departmental examination.
Similar duties by Non-NET/SET or with NET/SET = equal pay cale and increment benefits.
75. The submission that non-NET/SET teachers have been performing all the duties that are performed by the NET/SET teachers, is of no assistance to grant the benefits so claimed as the class so created and recognized by the State, in no way can be stated to be discriminatory and/or treating equals unequally. On the contrary, the State, inspite of above basic qualification lacuna and or no requisite qualification and/or failure to acquire qualification inspite of opportunity granted, protected their services by earlier Resolutions and by the Resolution in question.
The role of State of Maharashtra and its financial burden
76. The financial burden on the State is relevant factor. All eligible candidates who have passed the NET/SET examination, the State is providing them all benefits as announced. In the present cases, in the circumstances so referred above, though they have not acquired the NET/SET, still considering the background and the reason so mentioned in Government Resolution dated 27 June 2013, the State has granted the benefits from the date of Resolution. The benefits so extended, though from the date which is also the issue, but considering the reason so recorded and in the interest of justice and to protect the interest of such teachers, who have been working since long, but not getting the CAS benefits for want of NET/SET qualification, cannot be stated, to be bad in law. The State's action is reasonable, fair, just and proper and within their power and authority. Union of India had released grants from 1991 to 1995 to such non-NET/SET lecturers.
77. It is relevant to note that the UGC, now has no specific role to play with regard to the payment of salary and all other CAS benefits, as ultimately it is the respective States who are required to make the arrangement for such payment. Selection of candidates to whom such benefits should be granted or not, or from which date, in the present case, the persons who acquired the qualification and who have not acquired the qualification, in our view, is within the power and jurisdiction of the State. The action and the condition for such benefits, can not be stated to be discriminatory and/or violative of Article 14 of the Constitution of India so also the State Resolution in question.
78. As recorded, even the Supreme Court in Suseela (supra) deprecated/prohibited UGC for any blanket NET/SET exemptions. We have also noted that Union of India/Central Government, at no point of time, accepted the proposals so forwarded and/or never granted approval to the action of relaxation/exemption so issued by the UGC. In some cases, the UGC, in the year 2010, even withdrew the relaxation granted earlier. The State Government's action of considering and of taking sympathetic view by way of concession, in the background of the litigation and the Circular issued by the Respondents and the interpretation given is within the State policy.
79. Respondent No.3/UGC, in Writ Petition No.10166 of 2013, dated 23.11.2015 has also clarified the position that even if exemptions have been granted, Resolutions of 8.7.2011 itself was for the protection of services of the lecturers regularly appointed between 19.9.1991 to 3.4.2000. It is for the protection of services only. The aspects of regularising the services of such candidates/teachers/lecturers in the background so referred above, need no interference.
80. Therefore, in this background, the restriction so put by the State Government of granting benefits including of protecting services from the date of resolution as a policy decision considering the State's obligation, we are not accepting the alternate submission of the Petitioners that they are entitled for the benefits if not from the date of appointments, but at least from the date of stated individual date of exemption granted by the UGC.
81. It is clear that CAS provides benefits for a teacher who has appointed on full time regular basis and renders continuous services will get time bound promotion, whereby he receives senior designation and increased pay scale. Therefore, a qualified person who is in continuous services is entitled for the CAS benefits as per the scheme. The requirement of NET/SET, therefore, cannot be overlooked and the appointments, therefore, even if made, who has not passed the NET/SET examination cannot be treated equally. However, the pay scale of such teacher (non-NET/SET teacher) is at par with that of NET/SET qualified teacher.
82. In view of above and in view of the judgment of Supreme Court in State of Orissa v. Mamata Mohanty, (2011 (3) SCC 436) in para 70 which is reproduced hereinbelow, we are not accepting the case of rival Petitioners and we are accepting the stand and the submission so raised by the State and so also their Resolution, whereby the benefits such as CAS and other related benefits have been denied, but services have been protected.
â70. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law.â?
State granting continuity of service to Non-NET/SET candidates/lecturers/professors
83. The grant of continuity of service and regularisation by the State though they have not acquired requisite qualification of NE5T/SET which is the recent development after the judgment so referred above and as the State has taken that decision and as it is in the interest of protecting the services of all concerned and as they have been in service for so many years, therefore, also we are not inclined to disturb the policy decision so taken by the State, with concurrence of the State General Administration and Law and Judiciary Departments. However, the regularisation of non-NET/SET teachers, adhoc teachers preferences from the date of Government Resolution, and other benefits so announced, is just, proper and within the frame work of law keeping in mind the mandate of Supreme Court Judgments and the provisions about basic qualification of NET/SET.
84. The Government (State Policy) (translation portion) (State affidavit) decision is as under:
â14. Taking into account the scenario set out in the Introduction, the Notification of the University Grants Commission dated 19.9.1991 was implemented in the State from 23.10.1992; hence provisions of the said G.R cannot be made applicable with retrospective effect from 19.9.1991. Ergo, the qualification contained in University Grants Commission Notification dated 19.9.1991 cannot be made applicable to teachers appointed prior to 23.10.1992.
15. For such among the non-NET/SET teachers appointed during the period 23.10.1992 to 3.4.2000 who have not acquired the educational qualification prescribed by the University Grants Commission (NET/SET, Ph. D., M. Phil), the Government is sanctioning regularization of their services for all purposes from the date of issuance of this Government Resolution, subject to the following conditions:
a) Concerned teacher ought to have been appointed on Regular Basis.
b) Appointment of concerned teachers was made in the teaching post in accordance with the prescribed procedure
c) Appointment of concerned teacher fulfilling all other prescribed qualifications and conditions except NET/SET was approved by the University.
d) The concerned teacher's proposal for approval from the University Grants Commission has been forwarded through the University.
16. The Joint Director of the concerned Region shall constitute a committee under their Chairmanship to examine on merits the cases under their jurisdiction for the period 23.10.1992 to 3.4.2000. This screening committee will submit a self-explanatory proposal to the Director of Education, Higher Education, Maharashtra State, Pune for approval at the level of the Directorate after examining whether or not the entire procedure between the advertisement for the post of the concerned teacher up to the issuance of appointment order, has been in accordance with rules, and close scrutiny of all matters such as the post being a vacant one, social reservation being followed; thereafter approval be given at Director's level.
17. Similarly such of the affected non-NET/SET teachers who have been appointed as Principal or equivalent post, by holding admissible past service rendered by them, will not be disturbed and also the increments and pay drawn as per existing provisions will not be disturbed. Separate government resolutions will be issued on both these subjects.
18. Since the services of these teachers are being regularized for all purposes from the date of issuance of this Government Resolution, the defined contribution pension scheme will be applicable to them.â?
85. Considering the above provisions, including the Government Resolutions/circulars, we are not inclined to accept the submissions of the Petitioners who have acquired the qualification of NET/SET that the UGC has no power to grant exemption in the matters of appointments upto 2000. The challenge to letters 16.08.2011 and 26.08.2011 is also disposed off for above reasons.
No case is made out of any contempt, as prayed.
Earlier Supreme Court/High Court judgments not considered by High Court in Asha Bidkar
86. We have also noted that in the judgment of Asha Bidkar (supra), the judgment of Raj Singh (supra) was not considered and so also the judgment of Beena Inamdar (supra) and also Division Bench judgment dated 23.01.2006 in Writ Petition No.10216/2004Savant Ramesh Dattu v. The State of Maharashtra, [Raj Singh (supra), Annamalai University v. Secretary to Government, Information and Tourism Department and ors (2009) 4 SCC 590 and State of Orissa (supra). These judgments have dealt specifically with the UGC Act and 1991 UGC Regulations revolving around power to relax and the importance of essential qualifications and the standards of education in question. The Universities never stated that Regulations are not binding.
87. There is no question to refer the matter to the larger Bench, as, in view of order of Supreme Court (supra), including in State of Maharashtra v. Asha Bidkar (Supra) and Suseela (supra) and Kalyani (supra) and other Supreme Court judgments referred above and/or earlier orders of this Court, were not in the field when Asha Bidkar (High Court) (supra) and other similar matters were decided. The specific Central Government's reply, the UGC's reply and the State's reply filed before this Court recently, were not before the High Courts earlier. Therefore, considering the totality of matters, we have decided to deal with the issues afresh by giving the supporting reasons and keeping in mind that Appeals/SLPs are pending in Supreme Court.
88. In many writ petitions, there are interim orders passed based upon the interim orders passed by the Supreme Court and the earlier judgments/orders of this High Court. All the Writ Petitions, are dismissed by this common Judgment and so also the claims for want of NET/SET qualification, therefore, the interim orders of High Court, if any, in individual matters are also stand vacated. However, in view of the fact that the matters are pending in Supreme Court and as we have decided these matters based upon the orders passed by the Supreme Court, pending the Appeals and the Special Leave Petitions, we are inclined to observe that this judgment shall not be given effect, so far as the order of vacating interim orders are concerned, till the Supreme Court passes an appropriate order. The Respondents/parties, if required, to take any steps based upon this judgment, shall be after further order of the Supreme Court. In this view of the matter, we are also directing the Registry of this Court to forward the copy of this judgment to the Supreme Court in Civil Appeal No.10759/2013 â“ State of Maharashtra v. Asha Ramdas Bidkar along with connected matters, if any, at the earliest.
89. We have, in view of above and for the reasons so recorded, disposed of the present Petitions by this common judgment. It is made clear that this judgment will be applicable to all the similarly placed writ Petitioners also, who did not appear inspite of due notices of hearing.
90. We record our appreciation of the role of all senior Counsel and Advocates, who have rendered able assistance to the Court and placed on records common synopsis, submissions and written notes, along with common judgments compilation, after necessary research.
91. Therefore, the following order:
ORDER
1) It is declared that the teachers/professors/lecturers/candidates who have not acquired NET/SET/TEST qualification and who are appointed during 24.10.1992 to 3.4.2000 (except 19.9.1991 to 23.10.1992) (see Government Resolution dated 27.06.2013) are not entitled for CAS (Career Advancement Scheme) and other related benefits except the benefits including the pay scale and increments and other related benefits, as announced by the State, but on conditions so reproduced.
2) Upon acquiring NET/SET qualification, the teachers shall be entitled for the CAS and other related benefits in accordance with law from the date of acquisition of qualification of NET/SET as announced.
3) The challenge to the validity of the impugned State Government Resolution dated 27 June 2013 is rejected. The action of the State of Maharashtra is upheld. The State/Universities/Colleges to take steps accordingly.
4) In view of above, all the Writ Petitions, Contempt Petitions and Civil Applications are dismissed accordingly.
5) Rule in all the above matters is discharged and/or disposed of accordingly.
6) Ad/interim reliefs, if any, stand vacated, subject to para 88 hereof.
7) There shall be no order as to costs.
8) The Registry to forward copy of this judgment to Hon'ble Supreme Court, at the earliest, for record of Civil Appeal No. 10759 of 2013 and other connected Appeals and Special Leave Petitions.