ORDER
B. Sudershan Reddy, J.
1. This batch of writ petitions may be disposed of by a common order since the issues that require resolution, more or less, are the same in all of them.
2. The validity of the procedure adopted including the constitution of Selection Committee by the Osmania University for the selection and appointment to the posts of Assistant Professors, Associate Professors and Professors of University under the Career Advancement Scheme (for short 'the CAS') is impugned in this batch of writ petitions. Certain allied issues, which may be incidental in nature, are also raised.
3. In W.P.No.2411 of 2002 filed by the Osmania University Teachers Association (OUTA) and others, the constitutional validity of Section 43-A of the Andhra Pradesh Universities Act, 1991 (for short 'Universities Act') is also challenged. It is contended that Section 43-A inserted into the Andhra Pradesh Universities Act, 1991, by amendment Act 18 of 2001, is void.
4. The dispute centers around the selection of Assistant Professors, Professors under CAS. It is just and necessary to note the salient features of the CAS itself in order to appreciate the various contentions raised in this batch of writ petitions.
5. The University Grants Commission (for short 'the UGC'), in exercise of the powers conferred by clause (e) & (g) of sub-section (1) of Section 26 read with Section 14 of the University Grants Commission Act, 1956 (for short 'the UGC Act') and in supersession of the Regulations earlier issued and the notifications issued from time to time, made the regulations, viz., 'The University Grants Commission (minimum qualifications required for the appointment and Career Advancement of teachers in Universities and institutions affiliated to it) Regulations, 2000' (for short 'the Regulations'). These regulations are made applicable to every University established and incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognised by the Commission, in consultation with the university concerned under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and every institution deemed to be a university under Section 3 of the said Act. The said regulations are made in March, 2000 and are duly notified and published in the Gazette of India, Part-III dated 19th August, 2000.
6. The regulations so made by the UGC declare that no person shall be appointed to a teaching post in university or in any of institutions including constituent or affiliated colleges recognised under clause (f) of Section 2 of the UGC Act or in an institution deemed to be university under Section 3 of the said Act in a subject if he/she does not fulfil the requirements as to the qualifications for the appropriate subjects as provided in the Annexure.
7. The UGC vide its letter dated 4-4-2000 addressed to all the Universities clarified that the regulations issued by UGC are mandatory in nature and all the Universities are advised to strictly comply with them. The Universities and the managements of the colleges were accordingly required to make necessary changes in the statutes, ordinances, rules and regulations incorporating the UGC regulations. The regulations, providing schemes of revision of pay scales, minimum qualifications for appointment and other service conditions of the University and college teachers, were obviously made as a measure for the maintenance of standards in higher education. The regulations so made are applicable for appointment of persons through open advertisement and as well as for their career advancement.
8. So far as the Career Advancement is concerned, according to the regulations, the minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale) would be four years for those with Ph.D., five years for those with M.Phil., and six years for others at the level of Lecturer, and for eligibility to move into the Grade of Lecturer (Selection Grade)/Reader, the minimum length of service as Lecturer (Senior Scale) shall be uniformly five years. For movement into grades of Reader and above, the minimum eligibility criterion would be Ph.D. A Reader with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor.
9. Regulation 2.1.4 of the Regulations specifically provides that the Selection Committees for Career Advancement shall be the same as those for Direct Recruitment for each category.
10. So far as the promotion of a Lecturer in the Senior Scale to the post of Reader is provided under Regulation 2.4.1, which is to the following effect:
'A Lecturer in the Senior Scale will be eligible for promotion to the post of Reader if she/he has-
(i) Completed 5 years of service in the Senior Scale.
(ii) Obtained a Ph.D., degree or has equivalent published work.
(iii) Made some mark in the areas of scholarship and research as evidenced e.g., by self-assessment, reports of referees, quality of publications, contribution to educational innovation, design of new courses and curricula and extension activities.
(iv) After placement in the Senior Scale participated in two refresher courses/summer institutes of approved duration, or engaged in other appropriate continuing education programmes of comparable quality as may be specified or approved by the University Grants Commission, and
(v) Possesses consistently good performance appraisal reports.
11. Like-wise, for the post of Professor from the post of Reader, the requirement is that one must have served in the post of Reader at least for a period of eight years. The Selection Committee for promotion to the post of Professor should be the same as that for direct recruitment. For the promotion from Reader to Professor, the following method of promotion may be followed as provided in Regulation 2.6.0:
'The candidate should present herself/himself before the Selection Committee with some of the following:
a) Self-appraisal reports (required).
b) Research contribution/books/articles published.
c) Any other academic contributions. The best three written contributions of the teacher (as defined by her/him) may be sent in advance to the Experts to review before coming for the selection. The candidate should be asked to submit these in 3 sets with the application.
d) Seminars/Conferences attended.
e) Contribution to teaching/academic environment/institutional corporate life.
f) Extension and field outreach activities.
12. The process of selection as is provided under Regulation 3.3.0 should involve inviting the bio data and reprints of three major publications of the candidate before interview and getting them assessed by the same three external experts, who are to be invited to interview the candidate. The Selection Committee should have the following composition:-
1. Vice Chancellor to be the Chairperson of the Selection Committee.
2. An academician who is the nominee of the Visitor/Chancellor.
3. Three experts in the concerned subject/field out of the list recommended by the Vice Chancellor and approved by the Executive Council/Syndicate.
4. Dean of the Faculty.
5. Head/Chairperson of the Department.
13. At least four members, including two outside experts, must constitute the quorum.
14. The composition of the Selection Committee for the post of Reader and as well as for the post of Professor is one and the same.
15. The complaint made in the writ petition is that the University did not follow the regulations either in the matter of constituting the Selection Committee for the selection to the post of Reader and Professor or in the matter of following the method of promotion, but altogether a different criteria was adopted.
16. The case of the University and as well as the Government is that they have followed the procedure prescribed under Section 43-A of the Universities Act in the matter of constituting the Selection Committee for the selection of Readers and Professors in the University.
17. Before we proceed further in order to consider the vires and constitutionality of the newly introduced Section 43-A of the Universities Act, it may be necessary to briefly notice the background leading to enactment and insertion of the said section in to the Universities Act.
18. Section 43 of the Universities Act dealt with the constitution of the Selection Committee in regard to the appointment of Professors, Readers and Lecturers. It does not make any distinction between the selection and appointment of Professors, Readers and Lecturers directly and under the CAS. The provision has been in force since 22-1-1991 when the Andhra Pradesh Universities Act, 1991 came into force.
19. The UGC in its notification issued in 1998 recommended for revision of pay scales, minimum qualification for appointment of teachers in Universities and colleges and other measures for the maintenance of standards. The State Government appointed a committee to make an in-depth study of the issues relating to implementation of the Pay scales as recommended by the University Grants Commission, in its notification issued in 1998. The Committee submitted its report to the State Government on 30th April, 1999. Based on the recommendations of the Committee and after consideration of the revised UGC Scales and the suggestions of Government of India, the State Government have decided to extend the revised UGC Scales of pay to the Teachers, Librarians and Physical Education Personnel in the Universities and Colleges in the State and accordingly issued G.O.Ms.No.208, dated 29-6-1999 inter alia providing the details of coverage and applicability of the revised pay scales. The State Government also accepted the suggestions of the UGC in the matter of constitution of the Selection Committee for the selection to the post of Readers and Professors.
20. However, later on the State Government issued G.O.Ms.No.35, dated 3-2-2000 making some amendments with regard to the composition of Selection Committee so far as the Lecturers in Government/Private aided Colleges is concerned, with which we are not concerned for the present.
21. Thereafter, the Government issued G.O.Ms.No.67, dated 4-4-2000 further amending the Appendix to G.O.Ms.No.208, dated 29-6-1999 relating to the constitution of the Selection Committee for Readers and Professors, which is admittedly at variance with the suggestions made by the UGC vide notification issued in 1998. The same is also at variance with Section 43 of the Universities Act.
22. In the counter affidavit filed by the State Government, it is explained that keeping in view that there was no provision in the Andhra Pradesh Universities Act, 1991 for the constitution of Selection Committee for the purpose of Career Advancement Scheme, while there is a provision for direct recruitment, and in order to give statutory recognition to the amended provision contained in G.O.Ms.No.67, dated 4-4-2000, the State Government introduced Section 43-A in the Andhra Pradesh Universities Act, 1991. The Selection Committee contemplated under Section 43-A of the Universities Act is the one, which is contemplated in G.O.Ms.No.67, dated 4-4-2000. The newly introduced provision has come into force with effect from 27th June, 2001.
23. In the statement of objects and reasons, it is inter alia averred that the Government in G.O.Ms.No.67, Higher Education (UE.II-1) Department, dated 4-4-2000 have formulated the Career Advancement Scheme for the teaching posts in the Universities by constituting a Selection Committee. As there is no specific provision for constitution of Selection Committee for selection of teachers under the Career Advancement Scheme in the Andhra Pradesh Universities Act, 1991, it has been decided to amend the said Act suitably.
24. For the sake of convenience, we shall notice the composition of Selection Committee for the post of Readers and Professors as provided for in Sections 43 and 43-A of the Andhra Pradesh Universities Act, 1991 and also in the UGC Regulations, 2000.
Sec.43of the A.P. Universities Act, 1991Sec.43-A of the A.P. Universities Act, 1991UGC Regulations, 2000
Constitution of Selection Committee:-
Constitution of Selection Committee for Career Advancement Scheme:-
Regulation 3.3.0 - For the post of Reader:-
(1)There shall be constituted a SelectionCommittee in regard to the appointment of professors, readers and lecturers whichshall consist of the following, namely,
(1)There shall be constituted a Selection Committee for theselection of Assistant Professors, Associate Professors and Professors of Universitycolleges under the Career Advancement Scheme which shall consist of the following, namely:-
The Process of selection should involveinviting the bio data and reprints of three major publications of thecandidate before interview and getting them assessed by the same threeexternal experts, who are to be invited to interview the candidate. TheSelection Committee should have the following composition:-
(i)the Vice-Chancellor: (i)the Vice Chancellor- Chairman;1.Vice Chancellor to be the Chairperson of the Selection Committee.
(ii)three expertsfrom outside the University to be nominated by the Vice-Chancellor from outof a panel prepared every year by the Board of Studies and approved by the Boardof Management of whom at least two shall bepresent in the selection committee;
(ii)the Head of the concerned Department - Member;
2.An academician who is the nominee of the Visitor/ Chancellor.
(iii)Chairman of the Board of Studies concerned;
(iii)twoexperts on the subject from outside the University to be nominated by the Vice-ChancellorMembers;
3.Three experts in the concernedsubject/field out of the list recommended by the Vice Chancellor and approvedby the Executive Council/ Syndicate.
(iv)Head of the Department;
(iv)the Principal of the concerned University College Member;
4.Dean of the Faculty. (v)the Commissioner of Collegiate Education or his nominee -Member; and
5.Head/Chairpersonof the Department. At least four members, including two outside experts, mustconstitute the quorum.
(vi)the Registrar -Secretary.Provided that no person shall participate in the meetings of theselection committee for any appointment if he or his near relative iscandidate for that appointment;
Provided further that no teacher holding a postlower in rank than the one to which appointment is to be made, shall be a memberof selection committee.
Providedthat no person shall participate in the meetings of the Selection Committeeif he or his near relative is a candidate for selection under the Career Advancement Scheme:
Provided further that no teacher holding a post lower in rank than the one to whichappointment is to be made, shall be a member of selection committee.
3.4.0 - For the Dost of Professor:-
Thecomposition of the Selection Committeefor the post of a Professor will be the same as proposed for the post of aReader.
It may be ensured that the process of selection in every case istransparent and credible.
(2)The Registrar shall be the Secretary of the Selection Committee.
(2)The quorum shall be fivemembers including the Chairman and two experts on the subject and the Commissionerof Collegiate may be considered necessary and not provided for in sub-sections (1) and (2) in order to ensure fair selections.
In thecase of posts of Readers and Professors in Colleges, besides the Chairperson GoverningBody, the Principal of the College, and the Head of the Department, therewill be two University who will substitute the Visitor's nominee and the V.C. should be substituted by the VC's nominee.
(3)Provision shall e made in the Statutes in respect ofsuch matters as may be considered necessary and no provided for insub-sections (1) and (2) in order to
25. In the case on hand, the University admittedly constituted the Selection Committee in terms of the newly inserted Section 43-A of the Universities Act. It is the case of the University that it is bound by the statutory provisions.
Constitutional validity of Section 43-A of the Andhra Pradesh Universities Act, 1991:
26. Sri S.Ramachandra Rao, learned Senior Counsel appearing on behalf of the petitioners in W.P.No.2411 of 2002 submits that Section 43-A of the Universities Act is void and unconstitutional. It is submitted that the said provision is repugnant to the regulations made by the UGC. Introduction of Section 43-A in the Universities Act is with reference to the field already occupied by the regulations made by the UGC and the regulations so made shall prevail over the newly inserted Section 43-A of the Universities Act. The Selection Committee so constituted in accordance with Section 43-A of the Universities Act is illegal and consequently all the selections made by such Selection Committee are non est.
27. Sri E.Manohar, learned Senior Counsel appearing on behalf of the University and Sri S.Satyanarayana Prasad, learned Government Pleader for Higher Education appearing on behalf of the State Government contended that the regulations made by the UGC are only recommendatory in their nature and, therefore, neither the Universities nor the State Government is bound by the said regulations. The regulations are advisory in their nature. The learned Government Pleader contends that both the regulations framed by the UGC and the newly inserted Section 43-A of the Universities Act can co-exist. There is no repugnancy as such.
28. For the reasons, which we propose to indicate hereinafter, the submissions made by the counsel appearing on behalf of either of the party may have to be appreciated slightly in a different manner so far as the issue relating to constitutionality of Section 43-A of the Universities Act is concerned. Nonetheless, the constitutionality of Section 43-A of the Universities Act does arise for consideration of this Court.
29. The heart of Indian Federal Constitution is the distribution of legislative powers between the Union Parliament on the one hand and State legislatures on the other. Law making powers of Parliament are confined to classes of laws allotted to it, and likewise with the various State legislatures.
30. The courts, however, are frequently required to assess the competing federal and provincial lists of powers against one another in the judicial task of interpreting the constitution. Laws or legislative schemes have a multiplicity of features, characteristics, or aspects by which they may be classified in a number of different ways, and hence potentialities of cross-classification are even present. It is the duty of the court to decide as to the true nature of particular law challenged for validity and declare as to whether the statute challenged falls in the federal category or provincial category of power. In discharge of its duty to interpret the constitution the court must protect and preserve the balance of our federal constitution - preserve, that is, a proper equilibrium between significant State autonomy and adequate central power.
The constitutional scheme of distribution of legislative powers:
31. Part-XI of the Constitution deals with relations between the Union and the States. Chapter I in this part bears the heading 'Legislative Relations: Distribution of Legislative Powers'. Clause (1) of Article 245 declares that 'subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.'
32. Clause (1) of Article 246 declares that 'notwithstanding anything contained in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List').'
33. Clause (2) of Article 246 declares that 'notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the 'Concurrent List').'
34. Clause (3) of Article 246 then declares that 'subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List').'
35. Clause (4) of Article 246 says that 'Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.'
36. Article 254 declares that 'if any provision of law made by the legislature of a State with respect to matters enumerated in the Concurrent List is inconsistent with the provisions of any law made by Parliament, whether made earlier to the State enactment or later, the State enactment shall to the extent of repugnancy be void. If, however, the State enactment is reserved for and receives the assent of the President, such law will prevail in that State notwithstanding its repugnancy with a Parliamentary enactment.'
37. By the Constitution (Forty Second Amendment) Act, 1976, Entry 11 of List II has been deleted and Entry 25 in List III has been enlarged to cover matters, which were earlier specified in Entry 11 of List II. Before the said amendment, the legislative power in relation to 'education' was distributed in all the three legislative lists in the Seventh Schedule to the Constitution. The legislative power in respect of matters specified in Entries 63, 64, 65 and 66 of the List I (Union List) was conferred on Parliament, while the State legislatures were conferred the power in respect of matters specified in Entry 11 of List II (State List). The Parliament as well as State legislatures were conferred concurrent power in respect of matters specified in Entry 25 of List III (Concurrent List). After the amendment, the legislative power in respect of 'education' is now conferred exclusively on Parliament in respect of matters specified in Entries 63 to 66 of List I and concurrently on Parliament and State Legislatures in respect of matters specified in Entry 25 of List III.
38. For proper consideration of the issues that arise for consideration, we may set out the relevant entries in the Constitution as they exist:
Entry 66, List I - 'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.'
Entry 25, List III - 'Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.'
39. The UGC Act is an Act to make provision for the co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission. The UGC Act undoubtedly falls under Entry 66 of List I, about which, there is no dispute before us.
40. Chapter III of the UGC Act deals with the powers and functions of the Commission. Section 12 of the UGC Act mandates that 'it shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions, the Commission may only recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation; and perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions.
41. Section 14 of the UGC Act provides for consequences of failure of Universities to comply with recommendations of the Commission. The Commission may withhold from the University the grants proposed to be made out of the Fund of the Commission in case of failure to comply with its recommendations.
42. Section 22 of the UGC Act deals with right to confer degrees. Such 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. According to the definition, 'University' means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act and includes such institution as may be recognised by the Commission in accordance with the regulations made in this behalf under the Act.
43. Section 26 of the UGC Act confers power upon the Commission to make regulations. The Commission is empowered to make regulations 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; defining the minimum standards of instruction for the grant of any degree by any University; regulating the maintenance of standards and the co-ordination of work or facilities in Universities.
44. A bird's eye view of the provisions of the UGC Act would make it clear that Parliament has made a complete and exhaustive provision covering the entire field and made provisions for the co-ordination and determination of standards in the Universities in the country.
45. The regulations made and notified in the year 2000 are exhaustive in their nature regarding the qualifications required for the appointment and Career Advancement of teachers in Universities and colleges in the Country. The regulations mandate that no person shall be appointed to a teaching post in university or in any of institutions including constituent or affiliated colleges recognised under clause (f) of Section 2 of the University Grants Commission Act, 1956 or in an institution deemed to be a university under Section 3 of the said Act in a subject if he/she does not fulfil the requirements as to the qualifications for the appropriate subjects as provided in the Annexure. The regulations provide the criteria, procedure and qualifications for direct recruitment of lecturers, professors and readers in the colleges and universities and as well as for the selection under CAS. The regulations, undoubtedly, deal with the co-ordination and determination of standards in institutions for higher education. The qualifications prescribed and the procedure evolved including the composition of Selection Committees is nothing but an aspect of determination of standards.
46. The crucial question that falls for consideration is as to whether the newly inserted Section 43-A in the Andhra Pradesh Universities Act, 1991 is repugnant to the regulations made by the University Grants Commission?
47. The Universities Act has undoubtedly been enacted in exercise of the power conferred upon the State legislature and traceable to Entry 25 of List III. There is no other entry in List II enabling the State Legislature to enact any such law.
48. It is fairly well settled and needs no reiteration in our hands that the test of repugnancy would be relevant and applicable only where the legislation is on a matter in the concurrent list. Federal and provincial laws are permitted to operate concurrently, provided they do not conflict in what they prescribe for the persons subject to them. Nevertheless, if there is a conflict between federal and provincial statutes in a concurrent field, the doctrine of repugnancy is to the effect that the federal statute prevails and the provincial one is thereby displaced and suspended. So, in the end, the federal power is overriding in a concurrent field, unless the provincial law has been reserved for the assent of the President and has received his assent under Article 254(2) of the Constitution.
49. Where the subject matter of the legislation in question falls within either in the Union List or State List only, the question is to be decided with reference to the legislative competence. The test of repugnancy would not be applicable in such a situation.
50. In Tika Ramji v. State of U.P. : [1956]1SCR393 , the Supreme Court while considering as to whether the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 is repugnant to the provisions of Act 65 of 1951 and Act 10 of 1955 enacted by the Parliament observed that 'repugnancy falls to be considered when the law made by Parliament and the law made by the State Legislature occupy the same field because, if both these pieces of legislation deal with separate and distinct matters though of a cognate and allied character, repugnancy does not arise.' The Court noticed that Act 10 of 1955 was enacted by Parliament in exercise of the legislative powers conferred upon it by Entry 33 of List III and was an exercise of concurrent jurisdiction. Having noticed the same, the Court observed that 'the exercise of such concurrent jurisdiction would not deprive the Provincial Legislatures of similar powers which they had under the Provincial Legislative List and there would, therefore, be no question of legislative incompetence qua the Provincial Legislatures in regard to similar pieces of legislation enacted by the latter.'
51. It was further observed by the Supreme Court that 'when both the Centre as well as the State Legislatures were operating in the concurrent field, there was no question of any trespass upon the exclusive jurisdiction vested in the Centre under Entry 52 of List I, the only question which survived being whether, putting both the pieces of legislation enacted by the Centre and the State Legislature together, there was any repugnancy...........'
52. In Deep Chand v. State of U.P. : AIR1959SC648 , a Constitution Bench of the Supreme Court explained the scope of Article 254 and held that 'Article 254(1) lays down a general rule. Clause (2) is an exception to that Article and the proviso qualifies the exception. If there is repugnancy between the law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, the law made by Parliament shall prevail to the extent of the repugnancy and the law made by the State shall, to the extent of such repugnancy, be void.' (Emphasis is of ours).
53. It is not necessary to burden this judgment with various pronouncements of the Supreme Court on the subject. Suffice it to notice that similar is the view taken by the Supreme Court in State of Orissa V. M.A. Tulloch & Co., : [1964]4SCR461 ; M.Karunanidhi V. Union of India : 1979CriLJ773 M/s. Hoechst Pharmaceuticals Ltd. V. State of Bihar, : [1985]154ITR64(SC) and I.T.C. Ltd. V. Agricultural Produce Market Committee 2002 AIR SCW 523.
54. This court in P.Chengal Reddy V. State of A.P. 1988 (2) ALT 868while considering the constitutional validity of Andhra Pradesh Rashtra Karshaka Parishad and Allied Bodies Act, 1987 applied the 'doctrine of repugnancy' and the Bench speaking through Jeevan Reddy, J (as His Lordship then was) observed:
'On a consideration of the rival points of view, we are of the opinion that the Andhra Pradesh State Legislature while making a law to promote the welfare of the farmers has travelled substantially beyond the sphere reserved exclusively for the State. Many of the significant provisions of the Act have necessarily to be related to Entry 33 in List III, and since there is already a Central enactment, viz., Essential Commodities Act, providing for the matters specified in Entry 33 of List III, several of the provisions of the impugned Act providing for the very same matters must be held to be repugnant and bad. These provisions, to be mentioned presently, cannot be justified as incidental or peripheral overlapping over the Central enactment.' .
55. In M/s. Hoechst Pharmaceuticals Ltd., (5 supra) the Supreme Court while referring to Article 254 observed that 'it provides for the method of resolving conflicts between a law made by Parliament and a law made by the Legislature of a State with respect to a matter falling in the Concurrent List.' It is further observed:
'Union and State Legislatures have concurrent power with respect to subjects enumerated in List III, subject only to the provision contained in Cl. (2) of Article 254 i.e. provided the provisions of the State Act do not conflict with those of any Central Act on the subject. However, in case of repugnancy between a State Act and a Union Law on a subject enumerated in List III, the State law must yield to the Central law unless it has been reserved for the assent of the President and has received his assent under Article 254(2). The question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e. when both the Union and the State laws relate to a subject specified in List III and occupy the same field.' (Emphasis is of ours).
56. We have already noticed that the UGC Act enacted by Parliament is traceable to Entry 66 of List I of the Seventh Schedule. The Andhra Pradesh Universities Act, 1991 enacted by the Andhra Pradesh State Legislature is traceable to Entry 25 of List III of the Seventh Schedule. The same subject is under Entry 25 of List III of the Seventh Schedule.
57. Jeevan Reddy, J speaking for the Bench in State of A.P. V. Mcdowell & Co., : [1996]3SCR721 observed:
'If a particular matter is within the exclusive competence of the State Legislature, i.e., in List II that represents the prohibited field for the Union. Similarly, if any matter is within the exclusive competence of the Union, it becomes a prohibited field for the States. The concept of occupied field is really relevant in the case of laws made with reference to entries in List III. In other words, whenever a piece of legislation is said to be beyond the legislative competence of a State Legislature, what one must do is to find out, by applying the rule of pith and substance, whether that legislation falls within any of the entries in List II. If it does, no further question arises; the attack upon the ground of legislative competence shall fail. It cannot be that even in such a case, Article 246(3) can be employed to invalidate the legislation on the ground of legislative incompetence of State Legislature. If, on the other hand, the State legislation in question is relatable to an entry in List III applying the rule of pith and substance, then also the legislation would be valid, subject to a Parliamentary enactment inconsistent with it, a situation dealt with by Article 254. Any incidental trenching.........does not amount to encroaching upon the field reserved for Parliament.............' .
58. The question as to whether the UGC Act falls within Entry 66 of List I of the Seventh Schedule of the Constitution is not res integra.
59. In Osmania University Teachers Association V. State of A.P. 9. : [1987]3SCR949 the Supreme Court held (Paragraphs 13, 14, 23 and 24):
'Entry 25, List III relating to education including technical education, medical education and Universities has been made subject to the power of Parliament to legislate under entries 63 to 66 of List I. Entry 66, List I and entry 25, List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to co-ordinate and determine the standards for higher education. That power includes the power to evaluate harmonise and secure proper relationship to any project of national importance. It is needless to state that such a co-ordinate action in higher education with proper standards is of paramount importance to national progress. It is in this national interest, the legislative field in regard to 'education' has been distributed between List I and List III of the Seventh Schedule.
The Parliament has exclusive power to legislate with respect to matters included in List I. The State has no power at all in regard to such matters. If the State legislates on the subject falling within List I that will be void, inoperative and unenforceable.
It will be seen that the Commissionerate has practically taken over the academic programmes and activities of the Universities. The Universities have been rendered irrelevant if not non-entities.
It is apparent from this discussion that the Commissionerate Act has been drawn by and large in the same terms as that of the U.G.C. Act. The Commissionerate Act, as we have earlier seen also contains some more provisions. Both the enactments, however, deal with the same subject matter. Both deal with the co-ordination and determination of excellence in the standards of teaching and examination in the Universities. Here and there, some of the words and sentences used in the Commissionerate Act may be different from those used in the U.G.C. Act, but nevertheless, they convey the same meaning. It is just like referring the same person with different descriptions and names. The intention of the legislature has to be gathered by reading the statute as a whole. That is a rule which is now firmly established for the purpose of construction of statutes. The High Court appears to have gone on a tangent. The High Court would not have fallen into an error if it had perused the U.G.C. Act as a whole and compared it with the Commissionerate Act or vice versa.
In Prem Chand Jain V. R.K. Chhabra : 1984CriLJ668 this Court has held that the U.G.C. Act falls under entry 66 of List I. It is then unthinkable as to how the State could pass a parallel enactment under entry 25 of List III, unless it encroaches entry 66 of List. Such an encroachment is patent and obvious. The Commissionerate Act is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative.'
60. The said judgment, in all its force, would apply to the case on hand. The regulations framed by the UGC are complete and exhaustive covering the entire field relating to the qualifications, eligibility criteria and procedure to be adopted by the University and the manner in which the Selection Committees are to be constituted for selection of teachers. No further scope is left for the operation of the State Legislation in the said field, which is fully covered by the regulations framed by the UGC pursuant to the power conferred upon it under Section 26 read with Section 14 of the UGC Act.
61. Applying the test laid down by the Supreme Court in Osmania University Teachers Association (9 supra), we have no doubt in our minds to hold that the State Legislature could not have passed a parallel enactment under Entry 25 of List III unless it encroaches Entry 66 of List I. The State Legislature in no manner could have altered the composition of the Selection Committee as it had done by inserting Section 43-A of the Universities Act in the matter of selection of teachers under CAS. The regulations specifically provide that the Selection Committee shall be the same for the selections under direct recruitment as well as under Career Advancement Scheme. By introducing Section 43-A into the Andhra Pradesh Universities Act, 1991, the Legislature has introduced two types of Selection Committees - one for the selection of teachers by direct recruitment and the other for selection of teachers under the Career Advancement Scheme.
62. We have already noticed the composition of the Selection Committee for the post of Reader and Professor under the UGC Regulations and the composition of the Selection Committee under newly inserted provision i.e. Section 43-A of the Universities Act. Under both the provisions, the Vice-Chancellor of the University continues to be the Chairperson. Heads of the Department concerned are included in the Selection Committee to be constituted under Section 43-A of the Universities Act. According to the regulations, the requirement is the presence of three experts in the concerned subject/field out of the list recommended by the Vice-Chancellor and approved by the Executive Council/Syndicate. Under Section 43-A of the Universities Act, the requirement is only two experts on the subject from outside the University to be nominated by the Vice-Chancellor. The requirement of three experts on the subject is reduced to two and there is no requirement of approval by the Executive Council. The Dean of the Faculty is totally excluded from the composition of the Selection Committee by the impugned provision. The Principal of the concerned University College is included as a member though the same is not the requirement according to the regulations. The Commissioner of Collegiate Education or his nominee is also included as a member though the same is not the requirement under the UGC regulations.
63. It is, however, contended by the learned Government Pleader and as well as the learned Senior Counsel appearing for the University that the regulations framed by the University are recommendatory in their nature. Neither the University nor the State is bound by such regulations. At the most they are advisory and it shall always be open to the University and the State not to follow the same. The consequences in case of breach, according to the learned counsel, at the most may result in withholding the grants by the UGC. It is submitted that the provisions are directory in their nature. Reliance, in support of the submission, is placed upon the decisions in T.P.George V. State of Kerala, 1992 (2) SCC Supp. 191, 1992 (4) SCR 9; State of Maharashtra V. Association of Maharashtra Education Service Class II Officers, : AIR1974SC2184 ; University of Delhi V. Raj Singh, : AIR1995SC336 ; Osmania University V. R.Madhavi, AIR 1998 AP 130 and an un-reported judgment of a Division Bench of this court in W.P.No.22069 of 1998 and Batch, dated 9-2-2001.
64. In the counter affidavit filed by the UGC it is explained that the regulations framed by the Commission in exercise of the power conferred upon it are binding upon all the Universities.
65. In Association of Maharashtra Education Service Class II Officers (11 supra), the Supreme Court merely expressed a grave doubt as to whether the recommendations of a body like the UGC can give rise to a doubt about the enforceability in a court of law. The Supreme Court, in the said decision, was not dealing with any regulations made by the UGC.
66. The decision in T.P.George (10 supra) is not an authority for the proposition that the regulations framed by the UGC are only advisory or recommendatory in their nature. The Supreme Court in the said decision upheld the view of the Kerala High Court that the scheme providing the age of superannuation for teachers and certain improvements in the revision of pay scales and providing for assistance in that behalf is not a scheme which is statutorily binding either on the State Government or the different Universities functioning under the relevant statutes in the State of Kerala. What the Kerala Government has done by its order dated 13-3-1990 is to implement the UGC Scheme including revision of scales of pay in relation to teachers in Universities including Kerala Agricultural University, affiliated colleges, Law Colleges, Engineering Colleges and qualified Librarians and qualified Physical Education Teachers with effect from 1-1-1986, subject however to the express condition that insofar as the age of retirement is concerned, the present fixation of 55 years to continue. The contention of the petitioners therein was that the State Government having accepted the UGC Scheme, and as the scheme provides for a higher age of 60 years, once the State Government accepted the Scheme, all the clauses of the Scheme became applicable. The Court rejected the contention and observed that the State Government accepted the Scheme in the modified form and the teachers can only get the benefit, which flows from the Scheme to the extent to which it has been accepted by the State government and the concerned Universities. The Supreme Court noticed from the very scheme that the adoption of the Scheme was voluntary and the only result which might follow from the State Government not adopting the scheme might be that it may not get the benefit of the offer of reimbursement from the Government to the extent of 80 per cent of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the Scheme. The Supreme Court observed that 'the teachers in private colleges or affiliated colleges are governed in respect of their conditions of service by regulations or rules framed by the Government and the teachers in Universities are governed in respect of their conditions of service and the age of retirement by the separate statutes made by the Universities concerned and they cannot be regarded as similar for purposes of conditions of service.' The Supreme Court clarified the scheme referring to UGC Scheme of 1986 framed by the Government pursuant to the Malhotra Committee's Report. The same was not any scheme framed as such by the UGC. Nor were there any regulations made by the UGC. The Human Resources Development Ministry itself in its circular dated 17th June, 1987 clarified that the adoption of Scheme was voluntary. The decision, therefore, in no manner, advances the contention urged by the learned Senior Counsel appearing on behalf of the University.
67. It is difficult to discern as to how the decision rendered by a Division Bench of this court in W.P.No.22069 of 1998 and Batch, dated 9-2-2001 supports the point urged by the learned counsel for the respondents. The Division Bench merely followed the decision in T.P.George (10 supra) and dismissed the writ petitions. We are required to notice that the petitioners therein sought for directions as against the respondents-Universities to retain and continue them in service in their respective cadres till they attain the age of 62 years in accordance with the orders of the Government of India contained in F.1-22/97-U.1, dated 27-7-1998 and accord them all consequential benefits and attendant benefits including the arrears of salary etc. The Government of India, Ministry of Human Resources Development have issued the said order revising the pay scales on the basis of recommendations of the Fifth Central Pay Commission. Clause (6) of the said order is to the following effect:
'The age of superannuation of University and college teachers would be 62 years and thereafter no extension in service should be given. However, it will be open to a University or College to re-employ a superannuated teacher according to the existing guidelines framed by the University Grants Commission up to the age of 65 years.'
68. The question as to whether the regulations framed by the UGC in exercise of the power conferred upon it are mandatory in their nature had never fallen for consideration in the said batch of writ petitions. No further discussion on this aspect is necessary.
69. However, in R.Madhavi (13 supra), a Division Bench of this court held that the regulations framed by the UGC are in the nature of guidelines and are not binding on the Universities. It is not necessary for the Universities to meticulously obey the directions issued by the UGC. We shall consider as to the correctness of law declared by this court a little latter.
70. However, heavy reliance is placed upon the Judgment of the Supreme Court in Raj Singh (12 supra). The facts in the said case may have to be noticed in somewhat detail in order to appreciate the ratio and law laid down by the Supreme Court in the said decision:
71. One Raj Singh had applied for the post of lecturer in Commerce in three colleges affiliated to the Delhi University but had not been called for an interview. He contended that the advertisement issued inviting applications from the eligible candidates did not lay down that the candidates should have passed the test prescribed under the University Grants Commission (Qualifications required of a person to be appointed to the teaching staff of a University and institutions affiliated to it) Regulations, 1991, notified on 19-9-1991 by the University Grants Commission. He accordingly challenged the action of all the concerned including the Delhi University in not laying down that the candidates should have passed the test prescribed by the said regulations and that the candidates who had not passed that test should not be called for an interview. The Delhi High Court held that the regulations were valid and mandatory and the Delhi University was obliged under law to comply therewith. The Delhi University was directed to select lecturers for appointment in the University and in its affiliated colleges strictly in accordance with the said regulations. The Delhi University challenged the High Court's judgment in the Supreme Court.
72. The Delhi University contended that the said regulations were recommendatory or advisory in their nature and not mandatory. They could not override the provisions of the Delhi University Act, its statutes and ordinances. It was also contended that if the said regulations were regarded as binding on all Universities, they would be ultra vires the U.G.C. Act itself because Section 12 (d) thereof only provided for recommendation and advice.
73. The Supreme Court dismissed the appeal filed by the Delhi University and confirmed the Judgment of the Delhi High Court. But in the process, however, clarified the directions issued by the Delhi High Court. It is observed:
'The ambit of Entry 66 has already been the subject of the decisions of this Court in the cases of the Gujarat University and the Osmania University. The U.G.C. Act is enacted under the provisions of Entry 66 to carry out the objective thereof. Its short title, in fact, reproduces the words of Entry 66. The principal function of the U.G.C. is set out in the opening words of S.12, thus 'it shall be the general duty of the Commission to take.... all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities ....'
It is very important to note that a duty is cast upon the Commission to take 'all such steps as it may think fit .... for the determination and maintenance of standards of teaching'. These are very wide ranging powers. Such powers, in our view, would comprehend the power to require those who possess the educational qualifications required for holding the post of lecturer in Universities and colleges to appear for a written test, the passing of which would establish that they possess the minimal proficiency for holding such post. The need for such test is demonstrated by the reports of the commissions and committees of educationists referred to above which take note of the disparities in the standards of education in the various Universities in the country. It is patent that the holder of a post-graduate degree from one University is not necessarily of the same standard as the holder of the same postgraduate degree from another University. That is the rationale of the test prescribed by the said Regulations. It falls squarely within the scope of Entry 66 and the U.G.C. Act inasmuch as it is intended to co-ordinate standards and the U.G.C. Act is armed with the power to take all such steps as it may think fit in this behalf. For performing its general duty and its other functions under the U.G.C. Act, the U.G.C. is invested with the powers specified in the various clauses of S.12. These include the power to recommend to a University the measures necessary for the improvement of University education and to advise in respect of the action to be taken for the purpose of implementing such recommendation (clause (d). The U.G.C. is also invested with the power to perform such other functions as may be prescribed or as may be deemed necessary by it for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions (clause (j). These two clauses are also wide enough to empower the U.G.C. to frame the said Regulations. By reason of S.14, the U.G.C. is authorised to withhold from a University its grant if the University fails within a reasonable time to comply with its recommendation, but it is required to do so only after taking into consideration the cause, if any, shown by the University for such failure. Section 26 authorises the U.G.C. to make regulations consistent with the U.G.C. Act and the rules made there under, inter alia, defining the qualifications that should ordinarily be required for any person to be appointed to the teaching staff of a University, having regard to the branch of education in which he is expected to give instruction (clause (e)of sub-sec.(1)); and regulating the maintenance of standards and the co-ordination of work or facilities in Universities (cl. (g)). We have no doubt that the word 'defining' means setting out precisely or specifically. The word 'qualifications' as used in clause (e), is of wide amplitude and would include the requirement of passing a basic eligibility test prescribed by the U.G.C. The word 'qualifications' in clause (e) is certainly wider than the word 'qualification' defined in S. 12A(2)(d), which in expressly stated terms is a definition that applies only to the provisions of S 12A. Were this definition of qualification, as meaning a degree or any other qualification awarded by a University, to have been intended to apply throughout the Act, it would have found place in definition section, namely, S.2.'
74. While making an analysis of the regulations and with a particular reference to clause (2) of the said regulations and having noticed the first proviso to clause (2) of the said regulations, which permitted relaxation in the prescribed qualifications by a University provided it is made with the prior approval of the U.G.C., the Supreme Court, no doubt, observed that 'the provisions of clause (2) of the said regulations are, therefore, recommendatory in character.' It is nowhere held that the regulations framed by the UGC are not mandatory. Had the Supreme Court taken such a view, the appeal preferred by the Delhi University could not have been dismissed.
75. Therefore, the decision of the Supreme Court in Raj Singh (12 supra) does not support the submission made by the learned Senior Counsel appearing on behalf of the government and the University that the Universities in India need not follow and are not bound by the regulations. The decision in Raj Singh (12 supra) does not support the wide proposition canvassed contending that Universities can ignore the regulations altogether. The regulations, in fact, were directed to be complied with and all the available alternatives were noticed in the judgment. The various choices available were culled out on an analysis of the very regulations. Various options under the said regulations were open to the Universities and the Supreme Court accordingly clarified the directions of the Delhi High Court leaving it open to the Delhi University to elect from out of the various options available to it under the very regulations.
76. In our considered opinion, Raj Singh case (12 supra) is not an authority for the proposition that the regulations made by the UGC are only recommendatory and not binding upon Universities. The ratio of the said judgment may perhaps is required to be understood in the light of the judgment rendered by a Constitution Bench of the Supreme Court in Dr. Preeti Srivastava V. State of M.P., : AIR1999SC2894
77. Be that as it may, the question as to whether a particular provision is mandatory or directory is not relevant in order to decide its constitutional validity.
78. At this stage, it would be necessary to notice the judgment of the Supreme Court in Dr. Preeti Srivastava (14 supra). The question as to whether the regulations framed by the Indian Medical Council under the Indian Medical Council Act, 1956 are mandatory or directory had fallen for consideration in the said decision.
79. Section 20 of the Indian Medical Council Act, 1956 deals with postgraduate medical education. The relevant provisions under Section 20 are as follows:
'20. Postgraduate Medical Education Committee for assisting Council in matters relating to postgraduate medical education.- (1) The Council may prescribe standards of postgraduate medical education for the guidance of universities, and may advise universities in the matter of securing uniform standards for postgraduate medical education throughout India, and for this purpose the Central Government may constitute from among the members of the Council a Postgraduate Medical Education Committee (hereinafter referred to as the Postgraduate Committee).
(2)-(4) * * *
(5) The views and recommendations of the Postgraduate Committee on all matters shall be placed before the Council; and if the Council does not agree with the views expressed or the recommendations made by the Postgraduate Committee on any matter, the Council shall forward them together with its observations to the Central Government for decision.'
80. Section 33 of the Indian Medical Council Act, 1956 gives to the Council the power to make regulations generally to carry out the purposes of the Act with the previous sanction of the Central Government. Pursuant to its power to frame the regulations, the Medical Council of India had framed regulations on postgraduate medical education, which have been approved by the Government of India under Section 33 of the Indian Medical Council Act, 1956. Considering the expression 'may advise universities' used in Section 20 of the Indian Medical Council Act, 1956, the Supreme Court in Ajay Kumar Singh V. State of Bihar, : [1994]3SCR57 held that 'the power of the Council to prescribe standards of postgraduate medical education under Section 20 are only for the guidance of the universities.' The Court held that 'the entire power under Section 20 was purely advisory. Therefore, the power of the Indian Medical Council to prescribe the minimum standards of medical education at the postgraduate level was only advisory in nature and not of a binding character.'
81. The Supreme Court in Dr. Preeti Srivastava (14 supra) specifically overruled the said decision and accordingly held that the standards on postgraduate medical education prescribed by the Medical Council of India are mandatory and the universities are bound to comply with the standards so prescribed. The reasoning adopted in State of M.P. V. Nivedita Jain 16. : [1982]1SCR759 that the regulations framed by the Medical Council on under-graduate medical courses are only recommendatory has also been disapproved in Dr. Preeti Srivastava (14 supra). The Supreme Court accordingly held that the Medical Council regulations are having statutory force and are mandatory. The expressions such as 'recommendations' and 'guidance' used in relevant provisions are held to be inconsequential notwithstanding the use of such expressions. The regulations framed by the Medical Council are held to be mandatory.
82. Section 12 of the UGC Act, which deals with the functions of the Commission, also contains such expressions as 'recommends', 'advise', 'required' etc. The relevant provisions of Section 12 of the UGC Act read:
'12. Functions of the Commission:- It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may -
(a) .....
(b) .....
(c) .....
(cc) .....
(ccc) .....
(d) recommends to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation.
(e) - (j) .....
83. Such advise and recommendations, made by making the regulations in exercise of the power under Section 26(1) of the UGC Act defining the qualifications that are ordinarily be required for any person to be appointed to the teaching staff of a University, having regard to the branch of education in which he is expected to give instruction and defining the minimum standards of instruction for grant of any degree by any University and regulating the maintenance of standards and the co-ordination of work or facilities in Universities, cannot be held to be merely advisory. The same principle of interpretation adopted by the Supreme Court while interpreting Section 20 of the Indian Medical Council Act in Dr. Preeti Srivastava (14 supra) would equally be applicable for the interpretation of Sections 12 and 26 of the UGC Act which are in pari materia with the provisions of the Indian Medical Council Act, 1956.
84. In Preeti Srivastava (14 supra) the Supreme Court held that 'under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of postgraduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed regulations, which govern postgraduate medical education. These regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III, make rules and regulations, which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India on postgraduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List I..... It is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the Concurrent List. Therefore, any power exercised by the State in the area of education under Entry 25 of List III will also be subject to any existing relevant provisions made in that connection by the Union Government subject, of course, to Article 254.'
85. This verdict of the Supreme Court should put an end to the controversy. The judgment is a complete answer to the contentions urged by the learned counsel appearing on behalf of the Government and the University.
86. In view of the decision of the Supreme Court in Dr. Preeti Srivastava (14 supra) the decision of this court in R. Madhavi (13 supra) holding that the regulations are not mandatory is no more good law.
87. The UGC under the UGC Act is empowered to take all such steps as it may think fit for promotion and co-ordination of university education and for the determination of maintenance of standards of teaching, examination and research in universities. The UGC in exercise of the powers conferred by clause (e) and (g) of Section 26 read with Section 14 of the University Grants Commission Act, 1956 has framed regulations regarding the minimum qualifications for the appointment and Career Advancement of teachers in Universities and institutions affiliated to it. The regulations, inter alia, provide for minimum qualifications for the post of Professors, Readers and Lecturers in universities or colleges for appointment of persons through open advertisement and for their Career Advancement. These regulations are binding on the universities. Even the State Legislature cannot, in exercise of the power under Entry 25 of List III, make any provision, which are in conflict with or adversely impinge upon the regulations framed by the UGC regarding the minimum qualifications and procedure prescribed for appointment and Career Advancement of teachers in universities and colleges. The standards laid down in the regulations by the UGC are in exercise of power conferred under Entry 66 of List I. The exercise of that power is exclusively within the domain of the Union Parliament. The power of the State under Entry 25 of List III is subject to Entry 66 of List I.
88. It is nobody's case that the University or the State has the exclusive power to frame the rules or regulations or make an enactment pertaining to promotion and co-ordination of university education and for the determination and maintenance of standards of teaching etc. No doubt, the State is entitled to make appropriate provision in the area of education including the maintenance of standards, co-ordination, etc., under Entry 25 of List III. That jurisdiction is again subject to any existing relevant provisions made in that connection by the Union Parliament subject, of course, to Article 254.
89. The regulations framed by the UGC having prescribed the qualifications also recommended for the composition of the Selection Committee. The prescription of qualifications for the post of Lecturers, Readers and Professors and the eligibility criteria thereof for the selection and appointment is integrally connected and inter-twined with the composition of the Selection Committee. The regulations mandate the Universities to ensure that 'the process of selection in every case is transparent and credible'. The minimum qualifications prescribed and the procedure suggested for the selection and appointment and composition of Selection Committee for selecting the candidates by duly scrutinising each candidates' selection are various steps in the same process and are integral for the promotion and co-ordination of university education and for the determination and maintenance of standards of teaching; examination and research in the universities.
90. The regulations so framed by the UGC falls under Entry 66 of List I. The State Legislature could not have passed a parallel enactment under Entry 25 of List III without encroaching the Entry 66 of List I. The encroachment with regard to the composition of the Selection Committee is patent and obvious.
91. In the circumstances, we hold that Section 43-A of the Andhra Pradesh Universities Act, 1991 is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative.
92. Sri Nuty Rama Mohan Rao, learned counsel appearing on behalf of the petitioners in W.P.Nos.3206 and 7567 of 2001 and W.P.No.499 of 2002; Sri D.V.Sitarama Murthy, learned counsel appearing on behalf of the petitioners in W.P.Nos.4890 and 5727 of 2001; Sri Sudhender Kulakarni, learned counsel appearing on behalf of the petitioners in W.P.Nos.6212 and 8151 of 2001; Sri S.Niranjan Reddy, learned counsel appearing on behalf of the petitioners in W.P.No.4860 of 2001; Sri B.Vijayasen Reddy, learned counsel appearing on behalf of the petitioners in W.P.Nos.11171 and 11192 of 2001; Dr. P.V.Ratnam, learned counsel appearing on behalf of the petitioners in W.P.No.8887 of 2001 and Sri K.Laxmi Narasimha, learned counsel appearing on behalf of the petitioners in W.P.No.17086 of 2001 made variety of submissions highlighting as to how the University deviated from the norms and procedure prescribed under the regulations by the UGC. Since we have taken a view that the Selection Committee constituted is non est, it is not necessary to deal with the submissions made by the learned counsel in detail. Suffice it to reiterate and clarify that the selections are to be made by a duly constituted Selection Committee and following the procedure and norms prescribed under the regulations made by the UGC.
93. In the circumstances, it is not necessary to go in detail into various submissions made by the learned counsel. The present batch of writ petitions is filed even before the commencement of selections. This Court by an order dated 8-2-2002 in WPMP No.2845 of 2002 in W.P.No.2411 of 2002 permitted the University to go ahead with the selections, but not to give effect to the selections. The selections made are subject to the result of the writ petition.
94. The University in its additional counter affidavit states that the selection process has been completed.
95. In view of our decision declaring Section 43-A of the Universities Act void, the Selection Committee constituted in accordance with Section 43-A of the Universities Act does not survive. So also the selections. The whole selection process is vitiated. The selections, if any, made are accordingly set aside.
96. It is further clarified that we have not expressed any opinion about the entitlement of any of the petitioners for selection and appointment to any of the posts. Their claim, if any, has to be considered by a properly constituted Selection Committee in accordance with the regulations.
97. The claim of the writ petitioners and all other eligible candidates including of those candidates whose selections are set aside may have to be considered by a properly constituted Selection Committee in accordance with the regulations framed by the UGC.
98. This batch of writ petitions is accordingly allowed to the extent indicated above. No order as to costs.
BRSR, J & VE, J.
99. After the pronouncement of the Judgment, Sri M.S.Prasad, learned counsel for the respondents submits that the University may be directed to constitute a selection committee in accordance with the Regulations and proceed with the selections as expeditiously as possible, so that the selection process is not indefinitely postponed.
100. Having regard to the facts and circumstances of the case, we consider it appropriate to direct the University to proceed with the selections and complete the same as expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this order.