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 UGC NET JUNE 2012- The court order, facts and analysis

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Malamaram chakkappan
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PostSubject: UGC NET JUNE 2012- The court order, facts and analysis    Tue Jan 29, 2013 5:50 pm

Friends

I think many of you have already read the order of Kerala High Court single bench on the petition given by some candidates against increasing cut off just after the publication of the Result. So I think you all are well aware of the facts of the case. For the purpose of those who not aware I am presenting it once more


Facts of the case



These writ petitions have been filed by the respective petitioners
challenging the change in category-wise qualifying criteria for lectureship in the examination held on 24.6.2012for making them eligible for acquiring National Eligibility Test ('NET for short). I shall refer to the facts pleaded
In W.P. {C) Nos.22187/2012, 22280/2012 and 26468 since common Grounds have been raised by various petitioners.

W.P. (C} No.22187/2012 is at the instance of the petitioner who is a postgraduate in Humanities (M.A. - Malayalam). She has secured M.A. from Sree Sankaracharya University of Sanskrit, Kalady in 1996 with 58% marks. She passed M Phil. (Malayalam) in the year 2012 from Madurai KamaraJ University.

Itis pointed out in the writ petition that the University Grants Commission (for short U.G.C.) has made the ''University Grants Commission (Minimum Qualifications required for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations 2000. For the post of Lecturers under clause 1.3.3, the following qualifications have been fixed.
"Good academic record with at least 55% of the marks or an equivalent grade of B in the 7 point scale with latter grades 0, A, B, C, D, E and F at Master's degree level, in the relevant subject from an Indian University, or an equivalent degree from a foreign University.
Besides fulfilling the above qualifications, •candidates should have cleared the eligibility test (NET) for Lecturers conducted by the UGC, CSIR or similar test accredited by the UGC.
Note: - NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. Degree. However, the candidate who have completed M.Phil. degree or have submitted Ph.D. Thesis in the concerned subject up to 31st December, 1993 are exempted for appearing in the NET examination."

The note therein is important which shows that NET is a compulsory requirement for appointment as Lecturer. Therefore, the candidate will have to clear NET as evident from Para 1.3.3. The UGC and•.CISR have to conduct the same also.

Ext.Pl is the notification issued by the third respondent UGC. There are three papers, and all of them consisted of only objective type questions. The minimum marks to be obtained by the candidates for papers 1, 2 and 3are as shown below:
Category General
OBC (Non-creamy layer)

Paper-I. 40 (40%)
35 (35%)

Paper-II 40 (40%)
35 (35%)

Paper-III 75 (50%)
67.5 (45%)
(Rounded off to 68)

PHIVH/SC/ST 35 (35%) 35 (35%)

60 (40%)
The scheme of examination is contained in Ext.P2 and going by the same, for the 1st paper the total mark is 100, for the IInd paper also the same is 100 and for Illrd paper it is 150. For the first paper, out of 60 questions, 50 questions will have to be attempted, for the second paper, there are 50 questions and all of them are compulsory and for paper 3, there are 75 questions and all are compulsory. The duration of hours of examination is 1 1/2 hours each for papers 1 and 2 and 2 ½ hours for paper 3 which are conducted in sessions 1 and 2 respectively.

The test was conducted accordingly on 24.6.2012 and the petitioner appeared for all the three papers. The carbon print out of OMR answer sheets were allowed to be carried by the candidates who have been produced as Exts.P4 and P5. Answer key is published for all the papers which are produced as Ext.P6 series.

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PostSubject: The ground of arguments   Tue Jan 29, 2013 5:55 pm

Here describes the purpose of petition

The test was conducted accordingly on 24.6.2012 and the petitioner appeared for all the three papers. The carbon print out of OMR answer sheets were allowed to be carried by the candidates who have been produced as Exts.P4 and P5. Answer key is published for all the papers which are produced as Ext.P6 series

The writ petitions have been filed when, on 18.9.2012 the University Grants Commission notified the minimum qualifying percentage of marks. It is averred that the change was notified only after the evaluation of answer papers and immediately before the publication of results. The change notified is extracted in Para 5 of the writ petition which is as follows:

Minimum Qualifying Percentage •Paper. I. PaperII PaperIII Aggregate of all three papers
General 40% 40% 50% 65%

OBC (Non-creamy•Layer) 35% 35% 45% 60%

SC/STIPWD 35% 35% 40% 55%

The copy of the notification is produced as Ext.P7. Therefore, the substantial. Change is that for general category candidates the UGC has fixed 65% as the aggregate of all the three papers, to acquire NET For
OBC the same is fixed as 60% and for SC/ST/PWD it is fixed as 55% It is the case of the petitioner that the first respondent was bound to publish the results as per the minimum prescribed marks, as notified in Exts.Pl and P2.
In the grounds of the writ petition, in W.P.(C)No.22l87/2012

The petitioner points out that the regulations have been framed by the UGC as per the terms of Section 26 of the UGC Act. For conducting test; the UGC is acting as an examining body and it is not conferring any degree to a candidate. The U.G.C. is not preparing a select list for appointment to any post the clearance of NET is only an additional qualification for being appointed as Lecturer in any University or affiliated colleges, therefore, the relevant aspect is only the conditions in the notification. The change effected is not fair, reasonable and is clearly arbitrary and the body has to function in terms of the constitutional mandate. As far as NET qualification is concerned, what is provided is only clearance of NET. UGC is not acting as a body conducting selection to a post. Thus, a qualifying. criteria and its fixation is out of the bounds of the UGC. It is therefore pointed out that it has no power for laying down any new criteria or eligibility for particular post. The prescriptions cannot be changed or altered after the conduct of examination and immediately before publication of the results;

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PostSubject: Other petitions and arguments   Tue Jan 29, 2013 6:01 pm

There were a lot of petitioners and a group of advocates for the petitioners. Here is the argument made in other petitions


Similar contentions have been raised by the petitioner in W.P.(C) No.22280/2012. Therein, the petitioner is a Post Graduate in Law and she passed LL.M. Degree conducted by the Kerala University in the year 2010 with 76% marks.
9. In W.P.(C} No.26468/2012 the petitioners are similarly placed. They also contend that in fixing the aggregate as now fixed by the UGC, there are various infirmities. Before commencement of the examination no
aggregate was fixed and the fixation of the same after the examination, would result in great prejudice to the candidates. It is pointed out that the enhancement of the aggregate itself is irrational, as 40%/50% being fixed for a pass in individual papers and later fixing it as 65% as an aggregate for the very same paper. The same cannot be sustained. Therefore, actually it is enhancement of the minimum percentage required for individual papers. Therefore, even if a candidate has the minimum percentage the present exercise will result in failure in the examination which cannot be justified. It is also pointed out that the candidates have written the examination in the light of the announcement made in the notification and as per the criteria fixed in the prospectus. They were expected to get only a minimum and attempted only the most beneficial questions while appearing. It is pointed out that in the first paper even though there are 60 questions, the candidates need attempt 50 questions alone. Thus actually the non announcement of the change/enhanced criteria before commencement of the examination has caused prejudice to the petitioners, as otherwise they could have prepared for maximum results and for attending the maximum number of questions. It is also pointed out that the decision now taken by the officers of the UGC cannot be accepted at all and is without jurisdiction. It is further pointed out that the change in the criteria in the middle of a process and after the test is illegal and unsustainable in the light of the law declared by this Court and the Apex Court in various cases . Herein, there is no power empowered on the UGC to change the criteria after the whole exercise is over and just before the Announcement of the results
With regard to the examination conducted, it is contended that it is not a competitive test for giving any employment and what is being Decided the only minimum eligibility. It is submitted that.the UGC will Have to act fairly and responsibly

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PostSubject: Who argued and defended   Tue Jan 29, 2013 6:02 pm

Heard Shri K. Gopalakrishna Kurup, learned Senior Counsel for the petitioners, Shri K. Jaju Babu, Shri Kaleeswaram Raj', Shri K.B. Arurtkumar and Shri Philip Mathew, Shri Alexander Perumpilikuttiyil, Shri Basil .Attipetty and other learned counsel who appeared for the petitioners and Shri S. Krishnamoorthy, learned Standing Counsel for the UGC;

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PostSubject: The argument of senior learned council   Tue Jan 29, 2013 6:06 pm

ShrLK. GopalakrishnaKurup, learned Senior Counsel appearing for some of the petitioners submitted that under Section 25 of the U.G.C. Act certain powers have been conferred on the U.G.C It is submitted that the power to make rules and regulations should be carried out within the four corners of the said rules and regulations alone. It is submitted that Section 26( 1) of the Act gives power to the Commission to prescribe regulations consistent with the Act and the rules made there under. Going by sub-section 1{e), the power is only to define 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 instructions. Sub-section l{f) will show that the power can be exercised for defining the minimum standards of instruction for the grant of any degree by any University. The regulations herein under para
1.3.3. prescribes the qualification for the post of Lecturer. Apart from the academic qualifications, the candidates are required to clear the eligibility test {NET). Herein, going by the present prescription, what is decided by the UGC is an eligibility itself for lectureship before the declaration of results by adopting 65% aggregate for general category candidates and like standards for other categories of candidates. In the absence of amendment to the Regulations 2000, the same cannot be recognised. It is now being treated as a qualification for appointment to the post of Lecturer. By citing the. practice and tradition in the previous examination it is pointed out that in the former years only 40% was fixed as minimum. In the absence of a regulation conferring power on the Commission, by prescribing the new yard stick, the UGC has clearly acted arbitrarily. Reliance is placed on the decisions of the Apex Court in K. Manjusree v. State ofAndhra Pradesh and another: {(2008) 3 SCC 512}, Hentani Malhotra v Hi h Court of Delhi {(2008}7 SCC 11} and Central Board of Secondary Education and another v. Aditya Bandopadhyay and others {(2011) 8 SCC497} to contend that the UGC is only an examining body and is not an appointing authority or a body conducting selection to fill up the post of Lecturer; It is
well settled that the rules cannot be changed mid course As the petitioners have secured the minimum marks; their results are thus to be declared

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PostSubject: More arguments   Tue Jan 29, 2013 6:09 pm

Shri K. Jaju Babu, learned counsel appearing for Some of the petitioners submitted that the position is well. settled that there cannot be any change .during mid course. Herein, there is no enabling power for adopting such a criteria. The test is not a competitive one and therefore new standards. cannot be fixed to scale down or reduce the number of candidates. The learned counsel also relied upon various decisions in support of the pleas.

Learned. counsel appearing for some of the petitioners, Shri Kaleeswaram Raj submitted that actually there is no decision by a competent body of the U.G.C. and the decision taken is by some officers.Under the provisions of Sections 25 and 26 of the UGC Act, no such power is vested.on anyof the officers. By referring to Section 27.oftheAct,it is
Submitted that only under the said provision, that also by regulations, the Commission can delegate to its Chairman, Vice-Chairman or any of its officers, its power of general superintendence and direction over the Business transacted by, or in, the Commission, including the powers with regard to the expenditure incurred in connection with the maintenance of the office and internal administration of the Commission. It is submitted that sub-section (2) is important which states that ''no regulation shall be .made under this; section except with the previous approval of the Central Government.'' It is submitted that the absence of any such exercise here makes the entire action ultra vires and illegal. Learned counsel also relies upon various judgments of the Apex Court in that context. It is submitted that there was no indication in the notification about the matter and even if there is any, it will be arbitrary

Shri K.B Arunkumar, Shri Alexander Perumpillikuttiyil, Shri Philip Mathew and Shri Basil Attipetty, learned counsel appearing for some of the petitioners also supported the arguments of the learned Senior Counsel appearing for the petitioners and submitted that there cannot be any change of rules in the mid stream; Several decisions of the Apex Court have been relied upon by them.

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PostSubject: UGC's counter affidavit   Tue Jan 29, 2013 6:14 pm

The UGC has filed a counter affidavit wherein the action is sought to be supported on various grounds. The counter affidavit is filed in W.P.(C} No 22280/2012. It is submitted that in the UGC notification, Ext.Rl(a) itself, it is announced that final qualifying criteria for Junior Research Fellowship and eligibility for Lectureship. shall be decided by the UGC, before declaration of results In para 7 it is mentioned that only such candidates who have obtained the minimum required marks in each paper separately as mentioned in para 5, will be considered for final preparationof results. It is therefore submitted that the candidates were put to notice of the same by the notification itself and there is no illegality in the matter. Thus, the finalqualifying criteria has been decided perfectly as empowered by the notification itself; The Moderation Committee constituted by the UGC consists of senior academicians was for finalisying the qualifying criteria for Lectureship Eligibility and Junior Research Fellowship held in June, 2012.The meeting of the Committee took place on 17.9;2012. The Committee recommended that the General, OBC (non-creamy layer) and SC/ST/PWD candidates would be required to obtain an aggregate percentage of 65%, 60% and 55% respectively in addition to the paper-wise minimum percentage as qualifying criteria. This is done in keeping the customary practice adopted for finalising the result of UGC.NET . The basic minimum benchmark is intimated to the candidates in the notification announcing UGC-NET.

It is stated in para 9 that the final cut off is decided by the Commission, before the declaration of the result In the notification published by the UGC, there is always a clause that the final cut off shall be decided by the Commission before declaration of the result. As such there may be conflict in the minimum and qualifying marks prescribed in both these notifications.

The action taken by the UGG is sought to be supported by maintaining that the mandate of the UGC includes determining and maintaining standards of teaching, examination and research in Universities. Therefore, the said powers of the UGC to frame the criteria for an examination that makes the candidates eligible for teaching is well within its jurisdiction. In fixing the said criteria, no court can interfere. It is averred in para 11 that NET is a national level examination aimed to equated with arttification for any public appointment. The committee can evolve such procedure for determining the eligibility criteria; The wisdom of the committee cannot be called into question. The Apex Court has decided in various cases that in academic matters, the Court cannot interfere

Shri. Krishriamoorthy, learned Standing Counsel for the UGC therefore submitted that the UGC is not simply an examining body. Attention was invited to Section 12 of the Act in particular and it is contended that going by Section 12 which defines the powers and functions of the Commission, the Commission is empowered to take such steps for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research Section 26(1)(e) which confers power to define qualifications, was also relied upon apart from the regulations of the year 2000 and it is submitted that the regulation has got statutory force in the ·light ·of the decisions of the Apex Court. As far as the aspect of clearance of NET under qualify the cream of the country for teaching and research in keeping with the mandate of UGC as per UGC Act, 1956 which includes determining and maintaining standards of teaching examination and research in Universities. In para 13, itis explained that nearly five lakh seventy thousand and odd number of candidates were participated in the test. Objective type questions were introduced for the first time. Mainly it is stated in para 13 thus:
'The eligibility criteria have been decided by the committees, taking note of various aspects and also to protect the standards of education. Comparing with the previous year's percentage of pass, even while prescribing 65% of marks aggregate, the number of qualifying candidates is 3 times higher. The UGC,. while introducing the objective mode, for the frrst time, has cautiously published the notification, prescribing minimum marks and clearly mentioned therein that, the qualifying criteria and eligibility criteria shall be decided by the UGC, before the publication of result. The qualifying criteria prescribed by the UGC, is basing upon the primary duty of the UGC, to prescribe and maintain educational standards for lectureship. There cannot be any arbitrariness or discriminations for the same."
It is further pointed out in para 14 that since it is a national level examination and as there is no ranking system, a cut off percentage is fixed, as a qualifying criteria. The notification/prospectus is only an invitation, to appear for the examination. Since it is an objective type examination, equated with arttification for any public appointment. The codnimittee can evolve such procedure for determining the eligibility criteria; The wisdom of the committee cannot be called into question. The Apex Court has decided in various cases that in academic matters, the Court cannot interfere.•
para 1.33.is concerned, it is submitted that it will always be the subjective.

It is pointed out that for this year all the papers have been prescribed in 'objective mode. The said body can fix up the
marks required for qualifying the test itself. It is submitted that there was no complaint against the prescription in the notification about the requirement whereby it was notified that final qualifying marks will be fixed later. The UGC was entrusted with the task of conducting the examination. by the Government of India in 1988. Shri •Krishnamoorthy
explained that after the initial results were available, they were analysed by the committee on various aspects. The committee, after examining the Answer papers and the competence including the skill and aptitude; etc. has made a recommendation for fixing the standard on a higher aggregate marks. Of course, the recommendation of the . committee may not be binding on the UGC but they can accept or reject it.The last year 5% marks was reduced and this year an increase was made. It is pointed out that the standard in education is the sole aim which was undertaken by the UGC; It is, submitted that there is no change in the rules of the game. The minimum qualifying marks was never published and thus there is no change from the said marks to come within the mischief in the rules of the game. It is submitted that there is no prohibition in the regulation for putting the qualifying marks. Therefore, it is mainly contended that there is absolute power under the regulations in prescribing the qualifying marks. Shri Krishnamoorthy relied upon the following decisions of the Apex Court to contend that the UGC has got absolute power which aspect has been concluded by the Apex Court. University of Delhi v. Raj Singh and others (1994 Supp (3) SCC 516) and University Grants Commission etc. v. Sadhana Chaudhary & others (JT 1996 (Cool SC 234). It is further pointed out that in academic matters this Court will be loathe to interfere. Certain decisions of the Apex Court are relied upon in that context also. It is also stated that the precedents cited by the petitioners counsel are different on facts regarding the said aspect also. Such precedents will not apply where factual matrix is totally different. It is further pointed out that there is no compulsion for the UGC to announce the final qualifying marks, under the Act.

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PostSubject: Reply to affidavit   Tue Jan 29, 2013 6:17 pm

In reply to the above arguments, Shri K. Gopalakrishna Kurup, learned Senior Counsel submitted that there is no power to fix a further eligibility marks for lectureship, especially in the light of Section26(1)(e) and 1(g) of the Act. Such an eligibility criteria for lectureship cannot be made in a notification; It can only be introduced by a regulation. The NET clearance as provided in para 1.3.3 cannot be a source for empowerment. At any rate, it is contended that the UGC was bound to disclose about the same to the candidates well in time and in the absence of the same, serious prejudice has been caused to the candidates. Learned Senior CounseL further submitted that the power is only to conduct the examination and the requirement of a candidate is only to get the NET cleared to apply for the post. Shri Kaieeswaram Raj learned counsel submitted that the word ''minimum" should be read along with the word ''required ' and the same will make the position clear. It is submitted that the committees who have deliberated are not statutory committees and therefore their decision has no bearing on the issue. Shri Jaju Babu submits that the well settled principle that rules of the game cannot be changed in the midway should apply here, otherwise great prejudice will be caused to the candidates. It is submitted that the decision is taken by a totally incompetent body and any ratification will not help in such matters.


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PostSubject: Explanation by UGC   Tue Jan 29, 2013 6:22 pm

Shri Krishnamoorthy, learned Standing Counsel explained further that herein, the UGC has exercised the power under the said section and the power to be exercised under Section 12 and those under the regulations are quite different; Here, what is prescribed is the maintenance of standard envisaged in Section 12 and it is different from the regulation Making power. The Chairman of the UGC can appoint committees including important academicians in the field like the Vice Chancellor of the University and other members and they have recommended the standards. The UGC necessarily will have to depend upon the academicians to fixup the standards. But the only compulsion is that UGC need not accept the same always


[justify]The scheme of the test is clear from para 7 of Ext.Rl(a) After providing minimum marks, it is provided therein that such candidates will be considered for final preparation of result. In the next paragraph it is explained as follows
'However the final qualifying criteria for Junior Research Fellowship (JRF) and Eligibility for Lectureship shall be decided by UGC before declaration ofresult."

The crucial words in para 1.3.3 of the Regulations regarding NET qualification is that the candidate should have Cleared ' Eligibility test (NET) for lecturers" on which the entite arguments have been raised by bothsides.
[/justify]

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PostSubject: Looking backward   Tue Jan 29, 2013 6:26 pm

.Before we come to the said point, it can be seen that under the various Circulars,the UGC has fixed a minimum qualification and what is prevalent now is regulation 2000. The same has been issued in super session of the regulations issued in 1983, 1991 as well as a notification of the year 1985 and that of the year 1988. Para.l.3.3 and the Note have already been noted in para 3 above.

Apart from the academic qualification, wherein atleast 55% of the marks obtain equivalent grade is fixed, that also at Masters Degree level, compulsory requirement for appointment as Lecturer even for candidates having Ph.D Degree and exemptions have been given therein. When we come to the Scheme of the Act, Sections 12, 14, 25 and 26 are important. Section 25 confers power to make rules and Section 2.6 confers power to make regulations. Section 2 defines Commission as the university Grants Commission established under Section 4. Chapter ill defines the powers and functions Of the Commission under Section 12. Section 12 of course makes it a general duty on the Commission to take such steps in consultation with the University and other bodies concerned as it may deem 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. The important limb under the regulation making power is evidently sub clauses (e), (f) and (g) of Section 26 (l) which are given below:
(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 instructions.

(f) defining the minimum standards of instruction for the grant of any degree by any University.
(g) regulating the maintenance of standards and the co­ ordination of work or facilities in Universities."

We have already seen Section 27 which confers power to delegate.

The important point therefore is whether the exercise done by the UGC as per the recommendation of the Moderation Committee to fix up eligibility for lectureship is supportable, in law. The aggregate percentage on a much higher level from the minimum is fixed as a qualifying criteria.


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PostSubject: References of petitioners   Tue Jan 29, 2013 6:28 pm

Learned counsel for the petitioners relied upon the following Judgments to show that there is difference between the functions of an examining body and a selecting body: State of U P. v. Rafiquddin and others AIR1988 SC 162 (para 12)] and Central Board of Secondary Education and another v. Aditya Bandopadhyay and others

(2011) 8.Scc497} The decisions of the Apex Court in K.Manjusree v. State of Andhra Pradesh and another [(2008) 3 SCC 512] and Hemani Malhotra v High Court of Delhi [(2008)7 SCC 11] and that of this Court in Jayachandran v. High Court of Kerala [2010 (4) KLT 491 and vinod v. State ofKerala [2012 (2) KLT 683] are relied upon to.contend that therecannot be any change in the. standards during the midstream and the rules cannot be changed accordingly. The decision V.C Banaras Hindu University and others v. Shrikant [(2006) 11 SCC 42] is relied upon to contend that there is lack of authority for the committee since the statute never contemplates such a committee. State of Himachal Pradesh andothers v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh [(2011) 6SCC 597],Asha Sharma v. Chandigarh Administration and others [(2011}10 sec86] are relied upon in a context of principles under Article 14 ofthe Constitution of India as well as power of JudiciaL Review on policy decisions. These are the main decisions relied upon by the learned counsel for the petitioners

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PostSubject: References by UGC   Tue Jan 29, 2013 6:31 pm

Learned Standing Counsel Shri S.Krishnamoorthy relied upon Haryana Financial Corporation and another v. Jagdamba Oil. Mills and Another [(2002) 3 SCC 496], Delhi Administration (Now NCT ofDelhi) v. Manohar Lal [(2002) 7 SCC 222], Bhavnagar University v. Palitana SugarMill (P) Ltd. and others [(2003) 2 SCC 111] to contend for the position that this Court cannot act as an Appellate Authority by using the power of judicial review and that precedents, unconnected with the facts cannot be binding on this Court. The decisions of the Apex Court in Dr.J.P..Kulshrestha and others v. Chancellor, Allahabad University and others [(1980) 3 SCC 418], Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupeshkumar Sheth and others [(1984) 4 SCC 27] have been relied upon to contend that in academic matters, there can be no interference by this Court. The same is the dictum laid down in All India Council for Technical Education v. Surinder Kumar Dhawan and others [(2009) 11 SCC 726]. With regard to the powers of UGC, the following decisions have been relied upon. University of Delhi v. Raj Singh and others [1994 Supplementary (3) SCC 516], University Grants Commission etc. v. Sadhana Chaudhary and others [JT 1996 (Cool SC 234], Annamalai University v. Secretary to Government, Information and Tourism Department and others [(2009) 4 SCC 590J. The larger question that may arise for consideration is whether the UGC is acting only as an examining body and if so whether it can add anything to the prescriptions during the middle of the examination process by changing the rules of the game. The answer posed by the learned Standing Counsel for the UGC Shri S.Krishnamoorthy is that the exercise of the power is in consonance with the powers conferred under Section 12 in fixing standards.

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PostSubject: Validity checking of UGC References   Tue Jan 29, 2013 6:35 pm

Even before going into such nice questions, it is only proper to refer to the principles stated in two decisions of the Supreme Court relied upon by the learned Standing Counsel Shri S.Krishnamoorthy. They are, University of Delhi v. Raj Singh and others [1994 Supplementary (3) SCC 516] and University Grants Commission etc. v. Sadhana Chaudhary and others [JT 1996 (Cool SC 234].

In the first of the decisions in University of Delhiv Raj Singh and others [1994 Supplementary (3) SCC 516], the Apex Court considered whether the regulations fixed by the UGC is only subsidiary to the Delhi University Act in application to the said University and whether the Same is binding on the said University. The. entire scope of the UGC
Act was examined in that context. The University contended that the regulations were beyond the competence of the UGC and. were only directory. The said regulation is the front runner to the regulation 2000 namely the regulations l99l prescribing the qualifications for appointment of teaching staff. The Apex Court in that context examined Section 12 as well as Sectiori 26 (1) (e) In para.7 it was held as follows:

"The said Regulation, that is To say,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, were made in exercise of the powers conferred by S.26(1)(e)reading with S.14dfthe U.G C .Act and were notified on 19th September, 199l in the Gazette of lndia.''
References were. made to clause 2 therein prescribing the qualifications and clause 3 the consequences of the failure of the Universities to abide by the same. Their Lordships considered the genesis of the regulations in paras.8 and 9 which will throw light on various important aspects, which are extracted below:
The genesis of the said Regulations is to be found in recommendations made by expert bodies of educationists from time to time. In the Report of the National Commission on Teachers-IT, dated 23rd March, 1985, it was noted under the sub-title "evaluating academic achievements" that categorical statements had been made by various earlier committees and commissions that examination results were neither reliable nor valid and comparable. It was recognised that the standards of performance varied from University, to University and that Universities which were a little more exacting were less generous with their scores. A way had to be found to ensure not only that justice was done but also that it appeared to be done. Thereafter, in considering an All India Merit Test the Report said that it had to be ensured that every cittizen aspiring to be a teacher at the tertiary level, that is a lecturer, qualified in.terms of a national yardstick. Since the first appointment pre­ supposed doctoral work and since the UGC as well as the Council of Scientific and Industrial Research (C.S.I.R.) held an All-India test for fellowships at this stage, the grade secured by a candidate in this test could be utilised for drawing up a list of candidates eligible for lectureships in colleges and Universities of the country. If this proposal were to be implemented in such a manner that the test became reliable, valid and comparable from the academic and the technical points of view, the problem of regulating the induction of persons with high calibre into the Universities and colleges of the country would be largely taken care of and the dream of having a national cadre of academics with high Inter-regional mobility would have been realised. The Report, therefore, recommended" that the U.G.C.. should incorporate the passing of one of the national tests at least in grade B+ on a seven-point scale in its Regulation laying down the minimum qualifications of teachers and that this should come into force within two years". Under the sub-title "Professional excellence", the Report reiterated that it was extremely important to make a rigorous merit-based selection for the entry level into the teaching profession, and this view corresponded with that .of the vast majority of teachers.

In 1986 the U.G.C. appointed a committee of eminent men in the field of education under the chairmanship of Prof.
R.C. Mehrotra to examine the structure of emoluments and conditions of service of University and college teachers and to make recommendations in this behalf. "having regard to necessity of attracting and retaining talented persons in the teaching profession and providing advancement and opportunities to teachers of Universities and colleges. "The Mehrotra Committee noted what the Sen Committee and the Review Committee of the U.G.C. 1977, had said in regard to the need for improved qualifications of teachers and observed that whereas high standards of M.Phil and Ph.D. continued to be maintained in a number of Universities the standards appeared to have been diluted at several places because of unplanned growth, inadequate faculty and lack of infrastructural facilities. It was underlined that one very serious consequence of dilution of minimum standards for initial recruitment had been that already existing disparities in the standards of teaching between rural colleges, urban colleges, State Universities and Central Universities had tended to get further aggravated. The Mehrotra Committee recommended that the minimum qualification. for eligibility to a lecturer's position should be a good M.A., M. Sc., M.Com., or equivalent degree. While making this recommendation the committee expressed its full consciousness .of the importance of research experience .and capability as an essential input for efficiency and quality of teaching in most disciplines at the tertiary (lecturer's) level. It, therefore, strongly recommended the creation of much better research facilities for. Universities and colleges, particularly those dealing . with post:-graduate education to start with. This would enable brilliant lecturers recruited without an M. Phil or Ph. D. degree to pursue course and research work in their own institutions which could be followed for the completion of their dissertation by more specialised research for a limited period in a more advanced centre of learning or research. In order to ensure the quality of new entrants to the teaching profession, the Mehrotra Committee recommended that all aspirants for the post of lecturer in a University or college should have passed a national qualifying examination. This recommendation, it said, was in line with the recommendation of the National Commission on Teachers II. Such a test would .have the merit of removing disparities in standards of examination at the Master's level between different Universities. The Mehrotra Committee hoped that by this step local influence would be
minimised and the eligibility zone for recruitment would become wider. The proposed examination was to be a qualifying one in the sense that it determined only eligibility and not selection. The.Mehrotra Committee recommended the following minimum qualification for the post of lecturer:
(i) Qualifying at the National Test conducted for the. purpose by the UGC or. any other agency approved. by the UGC.
(ii) Master's degree with atleast fifty five per cent marks or its equivalent grade and good academic record.
The minimum qualification mentioned; above should not be relaxed even for candidates
possessing M. Phil, Ph.D. qualification at the time recruitment."'


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PostSubject: Evolution of NET   Tue Jan 29, 2013 6:40 pm

The evolution of the prescription of NET as a test is clear from paras 8 and 10. The important thing to be noticed is that such a test was prescribed in the light of the fact that the standards in various Universities may vary. The matter was initially reported by the National Commission on Teachers TI dated 22/03/1985 in its report. Therein, the Committee was of the view that the examination results under different Universities were not comparable and that the standards of performance varied from University to University. Therefore, an all India merit test was sought to be introduced. Again the matter was considered when the UGC, appointed in 1986 a Committee under the Chairmanship of Professor R.C. Mehrotra. which was primarily to examine the structure of emoluments, conditions of service of the University and College Teachers. They found that there were disparities in the standards of teaching between the Rural Colleges, Urban Colleges, State Universities and Central Universities. Finally, they recommended that in order to ensure the quality of new entrants to the teaching profession, all aspirants for the post of Lecturer in the University or College should have passed a National qualifying examination. The nature of the examination proposed is evident from the following sentence: "theproposed examination was to be a qualifying one in the sense that it determine only eligibility and not selection'' In the conference of Vice, Chancellorsheld in the office of the auspicious UGC 1999, maJor recommendations were finally made.

Finally, going by para.ll, the Government addressed UGC on these aspects on 17/06/1987. After considering various. contentions and the Entty 66 of List I, it was. held in para 20 that the UGC Act is enacted under the provisions of Entry 66 of List ofthe Seventh Schedule to the Constitution to carry out the objective thereof. After noting the same and Section 12 of the Act, the Apex Court in para.20 held as follows.

It is very important to note that a duty is cast upon the Commission to take ''allsuch steps as it may think fit for the determination and maintenance of standards of teaching".These are vety 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.G. Act in asmuch 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 8.12. These includ 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 S14,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 UGC 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.(l)); 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 another qualification awarded by a University, to have been intended to apply throughout the Act, it would have found place in definition section, namely, Section 2.''

The said paragraph will show that what is envisaged is a "passing a basic eligibility test prescribed by the UGC" to establish that they possess the minimal proficiency for holding the post. The regulations were examined in para.21 and finally, itwas held thus:
"The said Regulations do not impinge upon the power of the University to select its teachers. The University may still select its lecturers by written test and interview or either. Successful candidates at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and, therefore, all who have cleared it stand at the same level. There is, 'therefore, no element of selection in the process. The University's autonomy is not entrenched' upon by the said Regulations."
The important aspects to be mentioned, going by the said declaration of law by the Apex Court are the following:
"i) As far as the test is concerned, the successful candidates are awarded no marks or ranks;
ii) All who have cleared the test stand at the same level;
iii) There is no element of selection in the process."

The above prescriptions are quite important to understand the situation that has arise herein

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PostSubject: Refuses accept UGC's contextual references   Tue Jan 29, 2013 7:10 pm

The decision of the Apex Court in University Grants Commission etc. v. Sadhana Chaudhary and others . [JT 1996 (Cool SC 234] relied upon bythe learned Standing Counsel, considered the very same regulation and the relaJ(ation given, for appearing in the eligibility test to certain candidates by two circulars. After the circulars were issued, a provison was added to the regulation. It was provided that the candidates who have submitted Ph.D thesis or passed the M.Phil examination by 31st December, 1933 are exempted from the eligibility test for Lecturers conducted by the UGC, CSIR or similar test accredited by the l]GC. The challenge was on the cut-off date selected by the UGC; It was held that the same is not arbitrary or violative for Article 14 of the constitution of India and that the choice of date cannot always be dubbed as arbitrary even if no particular reason is forthwith coming for the choice unless itis shown to be capricious or whimsical in the cirrcumstances. The said finding is relied upon bythe learned Standing Counsel Shri S.Krishnamoorthy to support thesteps taken herein. But the context is evidently different and it may not have application here;



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PostSubject: Can court interfere in academic matters?   Tue Jan 29, 2013 7:17 pm

One of the main argument of UGC was the court cannot interfere on academic matters.




As far as the scope of judicial review in academic matters, which is the another contention vehemently raised by Shri S.Krishnamoorthy is concerned, the position is well-known. In Dr.J.P.Kulsbrestha and others v. Chancellor, Allahabad University and others [(1980}3 SCC 418], the scope ofjudicial review in academic matters, was explained inlucid terms in paragraphs1, 2 and 17 thus:
1.While legal shibboleths like ''hand-offuniversities" and meticulous forensic invigilation of educational organs may both be wrong, a balanced approach of leaving universities in their internal functioning well alone to a large extent, but striking at illegalities and injustices, if committed by however high an authority, educational or other, will resolve the problem raised by counsel before us in this appeal from a
judgment of the Division Bench of the High Court.

2. Once we recognise the basic yet simple proposition that no islands of insubordination to the rule of Jaw exist in our Republic and that discretion to disobey the mandate of the law does not belong even to university organs or other authorities, the retreat of the court at the sight of an academic body, as has happened here, cannot be approved. On the facts and features of this case such a balanced exercise of jurisdiction will, if we may anticipate our ultimate conclusion, result in the reversal of the appellate judgement and the restoration in substantial measure, of the learned Single Judge's judgment quashing the selection made by the university bodies for the posts of Readers in English way back in 1973."
17. Rulings of this court were cited before us to hammer home the point that the court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decision of academic bodies. But university organs, for that matter any authority in our system is bound by the rule of law and cannot be a law unto itself. If the Chancellor or any other authority lesser in level decides an academic matter or an educational question, the court keeps its hands off; but where a provision of law has to be read understood, it is not fair to keep the court out In Govinda Rao's case, (1964}4 SCR 575 atp 586(AlR 1965 SC 491) Gajendragadkar, J. (as he then was) struck the right note:

''What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance and in doing so; the High Court should have shown due regard to the opinions expressed by the Board and its recommendations on which the Chancellor has acted." (Emphasis added)

The later decisions cited before us proudly conform to the rule to caution sounded in Govinda Rao. But to respect an authority is not to worship it unquestioningly since the bhakti cult is inept in the critical field of law. In short while dealing with views of educational experts are entitled to great consideration but not to exclusive wisdom. Moreover the present cases so simple that profound doctrines about academic autonomy have no place here." (Emphasis supplied)

This point was again reiterated in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupeshkumar Sheth and others [(1984) 4 SCC 27] in para 29 thus:
"The Court should be extremely reluctant to substitute its own views as to what is wise prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded."

In All India Council for Technical Education v. Surinder will step up if provisions of law and principle have to be interpreted, applied or enforced and the said paragraph is extracted below:

The role of statutory expert bodies on education and role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, courts will step in.In Dr J.P.Kulshreshtha v. Chancellor, Alhihabad University [1980 (3) SCC 418]this Court observed:
I11.Judges lTIUSt not rush in Where even educationists fear to tread.

While there is no absolute bar, itis a rule of prudence that courts should hesitate to dislodge decisions ofacademic bodies

Therefore; there is no absolute bar in considering the matter as contended by the learned Standing Counsel. The question will still be whether any provision of law or any principle of law has been violated.


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PostSubject: What is an examining body?   Tue Jan 29, 2013 7:21 pm

.The decision of apex court namely State of UP vs.Rafiquddin and others [AIR 1988 SC 162] (para.12) and in Central
and others [(2011) 8 sec 497] explained the powers of an examining body. "In State ofU.P's case [AIR 1988 SC 162] it was held in para 12 thus:•
12. There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearmg at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If aperson obtains the minimum marks as prescribed by the authority he is declared

successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A.competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks an yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination itis not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to a competitive examination.
"In Central Board of Secondary Education 's case [(2011) 8 SCC 497] The Apex Court held thus in para42:

"The duty of examining bodies is to subject the candidates to a process of verification/examination/testing of their knowledge,ability or skill, or to ascertain whether they can be said to have successfully completed or passed the course of study or training or to find out whether such person is suitable for a particular post, job or assignment. An examining body, if it is a public authority entrusted with public functions, is required to act fairly, reasonably, uniformly and consistently for public good and in public interest."

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PostSubject: Can change the rule in midstream?   Tue Jan 29, 2013 7:27 pm

We will now come to the general principles govermng the absence of power of changing rules in the midstream as laid down by the Apex Courtin HemaniMalhotra v. High Court of Delhi [(2008) 7 SCC 11 (para 15)l, K.Manjusree v. State of Andhra Pradesh and another [(2008) 3 SCC 512] para 32 as well as Jayachandran v. High Court of Kerala [2010 (4) KLT 49]. It can be seen that in Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC 11], the various legal issues were considered in the light of the Apex Court decision reported in K.Manjusree v. State of Andhra Pradesh and another [(2008) 3 SCC 512]. The case therein was one wherein minimum marks for viva voce was prescribed after written test was over. It was held that the same cannot be permitted. The Apex Court was of the view that the authority making rules regulating selection can prescribe by rules, the minimum marks for both written examination and viva voce but if the minimum marks are not prescribed for .viva voce before commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process . add an additional requirement/qualificatibn that the candidate should also secure minimum marks in the interview. laid down the principles thus:
"There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the 111iniJ.nul11 marks both for written examination and viva voce, butif minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal."

In para.l4 Their Lordships relied upon the decisions of the Apex Court in anjusree v. State of Andhra Pradesh and another [(2()08) 3 SCC 512]. In the said decision in para.33 it was explained thus:
"The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination,to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks
for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview.Where the rules do not prescribe any procedure, the Selection committee may also prescribe the minimum marks, stated above. But ifthe Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview

In Jayachandran v. High Court of KeralaJ2010 (4) KLT49], this Court relied upon the above decisions in a case where moderation marks were awarded for selection to the post of District and Sessions Judge underthe Higher Judicial Service Special Rules 1961 (Kerala). Inpara J7, it was held thus:
"Though the rules specify the percentage of the posts to be filled up from the members of the Bar, the rules are silent about the procedure of selection to be followed for selecting the candidates from the Bar. It is too well settled in law that any activity of any one of the organs of the State is required to be rational and non­ arbitrary in a system of governance where the principle of the rule of law is all pervasive."

In para.20, the decision of the Apex Court in K.Manjusree: v. State . of K Manjusree V. State of Andhra pradesh and another was relied upon para.27 of the said Judgment was quoted. In fact, the Division Bench observed inpara.25 as follows:
25. We may make it clear that it is not the case of any one of the petitioners that the decision of the High Court to award moderation lacks in bona fides. The challenge is on a different ground that such a decision is impermissible in law and inconsistent with the requirements of Artsl4 and 16.of the Constitution of India. It need not be emphasised • that every bona fide decision need not necessarily be a legally right decisitin. On the other hand, a decision which is ostensibly legal may still be liable to be declared illegal if the decision is vitiated by mala fides. The decision of the Recruitment Committee to provide moderation, in our view, is straight in the teeth of the decision of the Supreme Court in Umesh Chandra Shukla's case referred above;

The view. taken is that 'it need not be emphasised. that every bona fide decision be a legally right decision." Therefore, the introduction of new criteria by change ofthe rules in the midstream was not recognised by the said Judgment also. Therefore, it is well settled that the introduction of such a requirement after the entire selection process is over, will amount to change in the rules of the game after the game was played, which is clearly impoissible according to the Apex Court in K.Manjusree v State • of Andhra Pradesh and another [(2008) 3 SCC 512] in para. 27. The decision of the Full Bench of this Court in Dr.Cyril Johnson v.State of Kerala and others [2009 (4) KHC 404 (FB)] is an authority for the
proposition that a selection committee which is statutorily constituted is bound by the norms prescribed by the statute and the selection committee has no jurisdiction or authority either to relax any of the norms or vary the same. The Full Bench has elaborated the principles thus in para as27, 32, and 39:
"The selection committee which has been statutorily constituted should follow the norms for assessing the merit of rival Cal1didates, ifsuch norms are laid down in the statute. The selection committee has no jurisdiction or authority to either relax any of the norms or vary the same. If the statute which provides for the constitution of the selection committee does not provide for the norms for the selection committee, then, it is open to the appointing authority to lay down instructions and guidelines providing for such norms. In such a case, the selection committee is bound to follow such administrative instructions in conducting selection. In cases where the norms governing the selection are not laid down either in the statutory provisions or. in administrative instructions, the selection con1lnittee constituted to conduct selection would not, have any inherent jurisdiction or authority to evolve its own norms for conducting the selection. If it evolves its own norms, then its action will be without authority and jurisdiction and selection would be vitiated. The dictum laid down inAntony P.A. V, Krisfmadas MN, IR 2007 (1).Ken1la 244, which upholds the contrary position does not lay down the correct law and it is hereby overruled.''

Of course, that was a case of selection. As regards the principles under Article 14 of the Constitution of India is concerned, the same as explained by the Apex Court in Asha Sharma v. Chandigarh Administration and others [(2011) 10 SCC 86] was relied upon by the learned counselfor the petitioners. In para.l4, the principle was explained thus:
"Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action,especially if it would potentially affect the rights of the parties, should bejust, fair and transparent. Arbitrariness in State action, even where the rules vest discretion to an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of administrative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and determination have in built element of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factions of the situations in question were identical. This uncertainty must be avoided."

Going by the same, there should be certainty in state action. Parties mustbe able to reasonably anticipate the course ofthe action that the State is likely to take in a given situation. In the context of this case wherein the argument raised is that the new eligibility criteria was never announced the said principle is important.


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PostSubject: Competetive Vs Qualifying Test   Tue Jan 29, 2013 7:32 pm

The principles stated by the Apex Court in State of U.P. v. Rafiquddin and others [AIR 1988 SC 162] clearly spells out the difference between examination held by a College or University or examining body and a competitive examination. The important observation made therein is that it would be obligatory on the examining authority to prescribe marks in the examination as well as for securing different grades well in advance and that a competitive examination on the other hand is different character. In a competitive examination, the emphasis will be to select the most suitable candidates for appointment in public service and the number of posts may determine the requirement therein. The same is absent here;

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PostSubject: Is UGC Possessing the power to fix criteria at any time?   Tue Jan 29, 2013 7:37 pm

As far as the argument of the learned Standing Counsel for the UGC that the requirement of Section 12 empowers the UGC to fix a standard is concerned, the question is interlinked with the issue whether during the conduct of a test like this, can they exercise the said power without announcing the same to the candidates. Such an empowerment will not alone justify an action like this. The candidateswere told by the notification about the minimum marks to be obtained which are definite. Now, the aggregate of three papers have been raised to 65% for general candidates and other like criteria for other candidates.The parties were never told about the same before the stage of the examination. Definitely, they were entitled to know about the same since in the scheme of the examination itself it ca11 be seen that the candidates will have to prepare in terms of the specification in the notification itself for attaining the minimum; Actually, they have been given a surprise by prescribing 65% on the aggregate of the three papers. Going by the adoption of such a standard,at the final stage and just before the declaration of the result, it can definitely be seen that it affected adversely, the expectations of large number of candidates like the petitioners , Therefore, even if there is power under Section 12 to fix a standard, it ought to have been exercised in a proper, fair and reasomtble manner and not whimsically. Herein, the minitnum marks have been announced by the notification itself even though now it is contended that it is only for putting them in a zone of consideration. The said minimum marks were in respect of each one of the papers. Now an aggregate percentage in respect of all the three papers has been fixed by raising it to 65%. Therefore, the minimum earlier fixed has now merged inthe aggregate marks. If it had to be adopted as a uniform criteria, there was no difficulty to announce it at the inception itself, so that the candidates would have prepared for the test accordingly. The enhancement done by the UGC is by raising the minimum obtained in respect of each paper to a far higher level viz. upto 65%; The last of the exercise done is by fixing it at 65% for general candidates,. 60% for OBC and 55% for SC/ST/PHD as a qualifying criteria and eligibility for lectureship even going by the counter affidavit filed by the UGC, Therefore, the same which was not at all announced at any point oftime, will clearly be termed as one changing the rules of the game itself at the last stage The same will therefore be hit by Article 14 of the Constitution of India



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PostSubject: Properties of NET   Tue Jan 29, 2013 7:39 pm

In terms of Regulations 2000 also, it can be seen that what is required is only clearance ofthe NET. As explained by the Supreme Court in Raj Singh's case (1994 Supp; 3 SCC 516) what is being conducted by not a selection Herein, the UGChas prescribed it as a qtialifying criteria and eligibility for Lectureship. The qualification for Lectureship is already fixed under para.l.3.3 which is only clearance of the NET and the aggregate now shown is not prescribed by the regulation. As far as the academic qualificationis concerned, the same has been prescribed undet pata.l.3.3. What is envisaged as acquisition of NET is only for uniformity of standards at the national level for prescribing a minimum eligibility standard for applying for the post of Lecturer conducted by the l]niversity or the College concerned. There is no mark or rank and all the candidates will be treated at the samelevel. They will have to face the test or interview at the stage of selection to the post of Lecturer. The.same is therefore of great importance in understanding the legal position. Therefore, clearance of NET alone being the.minimum eligibility standard and what is attempted now in fixing an aggregate marks itself as a qualifying criteria and eligibility if goes beyond scope of the regulations, definitely, and will be ultra vires. As rightly argued by the learned counsel for the petitioners, there is no power to fix afurther eligibility for Lectureship as attempted here. Even if such an eligibility condition can be prescribed that can only be by the regulation making power. The fixing of standards in any such context can only be through subordinate legislation and not by executive orders.

The question whether independent of any regulation, the same could be supported, will therefore have to be considered. Herein, we will have to understand the power as explained by the Apex Court in Raj Singh's case {1994 Supp. (3) SCC 516). Their Lordships were ofthe view, after referring to Sections 12 and 26(1)(e) that the exercise done by the UGC to fix the standards will have to be understood in the light of Section 12 and the sub clauses therein as well as Section 26 and expressly clause (g) of sub-section (1}. Their Lordships held that "Section 26 (1)(e) authorises the UGC to make regulations consistent with the Act and Rules inter alia defining qualifications. The word defining means setting out precisely or specifically and the word 'qualifications' in clause (e) is of wide amplitude and would include the requirement of passing a basic eligibility test prescribed by the UGC. It is in that context, the regulation making power on the UGC was recognised. Therefore, the method of fixing the standards; is specifically dealt with in Section 12 read along with Section 26(1)(e) and (g). It is therefore clear that if the UGC wanted to have any other qualifying criteria as eligibility for appointment as Lecturer, as now contended, the source of power for the same could be successfully traced out, from out ofthe provisions of the Act, viz. Section 26( 1)(e) which is only the subordinate legislation making power in the form of regulations which is not the one undertaken here, obviously. The same is also clear from para 42 of Annamalai University's case {(2009) 4 SCC 590} which reads as follows:

"The provisions of the UGC Act are binding on all universities whether conventional or open Its powers are very broad. The Regulations framed by it in terms of clauses (e), (f), (g) and (h) of sub-section (1} of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC under Sections 26(1)(f) and26(l)(g)are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed herein before that the functions of UGC (lfe all-perversive in respect of the matters specified in clause (d) of sub-section (1} of Section 12-A and clauses (a) and© of sub-section (2 } thereof."

The power on the UGCto frame regulations in terms ofdauses (e), (f), (g) and (h) of Section 26 (1) were held to be of wide amplitude. Their Lordships were therefore of the view that subordinate legislation as is wellknown when validly made becomes part of the Act.

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PostSubject: NET in UGC Regulation   Tue Jan 29, 2013 7:42 pm

Herein, what we find under the regulation is that the candidates will have to clear NET. It is not prescribed in the regulation that to make them eligible for appointment as Lecturer, they should obtain 65%, 60% and 55% in the NET. The prescription herein is different from fixing a cut off mark for passing a test since what is attempted is a qualifying criteria of eligibility, as pointed out in the counter affidavit.

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PostSubject: UGC Plays 'Quality' card    Tue Jan 29, 2013 7:46 pm

Learned Standing Counsel, Shri Krishnamoorthy while justifying the fixing ofaggregate marks as 65%, 60% and 55%, submittedthat it was done by analysing the table of performance of each candidate in which the teaching/research aptitude of candidate, reasomng ability, comprehension, divergent thinking and in connection with the subjects selected by the candidates for maintaining the standard of education. It was said that after every examination, the standard of performance is examined by a committee, duly constituted for the said purpose. Upto 2011 the committee recommended to reduce the percentage of marks by 5%. It is submitted that this year the Committee recommended to fix the aggregate since all the papers were objective type and negative marks were also taken away. The said exercise is sought to be justified as one wherein the UGC is empowered to maintain the standard in the education system and that accordingly they have got the power to do the same. It was also said that the same can be done only after examination. In fact, it wasalso submitted that more than two lakhs of candidates have secured the minimum marks and were in the zone of consideration and therefore to maintain the standard, a higher aggregate was fixed.



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PostSubject: 'UGC is not an appointing authority   Tue Jan 29, 2013 7:50 pm

Evidently, as far asthe clearance of the test is concerned, going by the decision of the Apex Court in Raj Singh's case (1994 Supp. (3) SCC 516) it is not a selection and what is of importance tonotice is that what is required is only passing of the test. Therefore, as rightly contended by the learned counsel for the petitioners, it is not a case where like an appointing authority they will have to fix a cut off mark after finding out the requirement, going by the number of posts and other criteria at the final stages of selection. The selection to the post of Lecturer, as already noticed, is to be done by the University or the colleges as the case may be, and the mode also is prescribed by them. As far as NET is concerned, it . was originally fixed as evident from the reports of various committees and the decision ofthe Apex Court in Raj Singh's case (supra), that there was a disparity in the University education between different Universities and Colleges and to remove it so that local influence will be minimised and eligibility zone would become wider. This was the justification for introducing the test. Therefore, we will have to find out whether, by putting an aggregate of 65% as a qualifying criteria in the present manner, the same object is achieved. The answer will be definitely in the negative. How many of the candidates should be in the field of selection is not a relevant consideration at this stage since that is left to the Universities and Colleges to ponder over when they are finally selecting the candidates. Therefore, the said argument cannot hold good. In fact, it is clear from the averments in the counter affidavit that the Committee was formed as Moderation Committee. Moderation is a, method adopted when there are large number of candidates in an examination and when the answer scripts are evaluated by different examiners, some formula will have to be evolved as the valuation of the answer scripts will depend upon the subjectivity of the respective examiners while awarding marks. They will be applying their own yardsticks in respect ofthe answer scripts. It is in that context the method of moderation will be applied, if authorised to do so by the body concerned In fact, learned counsel for the petitioners vehemently contended that such a Committee cannot fix up a qualification at all for an appointment for lectureship. The said contention was raised in the light of the absence of any empowerment under the regulations framed, as the eligibility for lectureship cannot be made in a notification for which a separate regulation itself is necessary. Thus, it can be seen that when the said Committee has fixed up an eligibility for the purpose of appointment as Lecturer without the support of the regulation, the same cannot be accepted


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PostSubject: Cancel further criteria   Tue Jan 29, 2013 7:52 pm

Shri Krishnrunoorthy explained that an expert body like CSIR is prescribing in the notification only minimum marks and not qualifYing marks. The provisions under which they have acted upon like that is not evident. We need not go into such aspects to find out whether the qualifying marks now fixed isjustifiable. Even if for arguments sake it

can be accepted that the UGC is not purely an examining body as contended by the learned Standing Counsel, but while conducting the test for NET herein,the said exercise alone is being done by the standards already fixed under the regulation. If we want to recognise any such power as is contended now for the examining body at the final stage of examination, it will not be possible in the light of the principles laid down by the Apex Court that the rules of game cannot be changed at that stage. In fact, as held by the Supreme Court in Hemani Malhotra's case {(2008) 7 SCC 11} in para 15, the authority making the rules regulating the selection can prescribe by rules the minimum marks both for written examination and vivavoce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. The exercise herein cannot be justified in the light of the said broad legal principle. Of course, if proper regulations were framed earlier and properly notified earlier, they could have relied upon. the same, which istotally absent here. Therefore, I am not called upon at this stage, to declare that the UGC is not at all having a power to do so, at any time before the notification is issued, as the argument of the learned counsel for the petitioners is that after the test and evaluation a further criteria cannot be fixed, going by the various decisions of the Apex Court and that any further qualification can be fixed only by a regulation. Herein, as an examining body, they were justified only in fixing the mininmm marks for each paper initially for clearing NET by way of a notification.

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PostSubject: The legal validity of "however....." statement   Tue Jan 29, 2013 7:59 pm

Learned Standing Counsel, Shri Krishnamoorthy submitted that in the notification itself it was specified that only candidates who secure minimum required marks in each paper separately will be considered for final preparation of results and that the final qualifying criteria for JRF and eligibility for lectureship shall be fixed by the UGC before declaration of results and therefore the candidates were really put on notice of the same. We are on the question whether the fixation of eligibility for lectureship is justified or not. The same cannot be justified and the said prescription in the notification will not come to the aid. Even the said prescription in regard to the final qualifying criteria was kept totally silent in the notification, the same is also therefore relevant to consider its legal validity

The decision of the Full Bench in Udayan v. Kerala Agro Machinery Corporation Ltd. (2011 (3) KLT952- FB)relied upon by Shri Krishnamoorthy will not apply here, as it was dealing with the system of shortlisting for a final round of selection, which is not the case here.

Shri Krishnamoorthy, learned Standing Counsel relied upon the principles stated by the Apex Court in Haryana Financial Corporation and another v. Jagadamba Oil Mills & another {(2002 (3). SCC 496}, BhavanagarUniversity v. Palitana Sugar Mill(P) Ltd. & others{(2003) 2 SSC111)and other decisions to contend that precedents will have to be judged on the basis of the facts and legal principles deduced there from and therefore divorced from the facts, there cannot be any blind approach.There cannot be any quarrel to that But herein, we are on a general principle laid down by various decisions of the Apex Court that the rules of the game cannot be changed midstream. The said principle when applied herein, it can be seen that the action is unsupportable. The said principle had been applied in various situations, as evident from the decisions already discussed, viz. Manjusree's case {(2008) 3 SCC 512J,Helilani Malhotra's case {(2008) 7 SCC 11} and Jayachandran 's case (20 10 (4) KLT 49). The contention that in academic matters this Court will have to keep off its hands also cannot therefore be accepted, as the Apex Court in various decisions held that-when a principle of law has to be applied the court cannot retreat at the sight of the academic body ( Dr.J.P, KulshresthcJis case- {(1980) 3 SCC 418} and later decisions. Any decision of the academic body therefore can be subjected to such a scrutiny to understand the legal validity of the same.

Shri Krishnamoorthy has also relied upon a recent judgment of the Apex Court in Civil Appeal Nos.4959-4962 of 2011. Therein the minimum qualifying marks for viva voce was introduced just two or three days before the commencement of the oral tests though it was not stipulated in the advertisement issued by the Public Service Commission. The matter was examined in the light of the statutory recruitment rules itself, wherein Rule 12(3} specifically empowered the Commission to fix the qualifying marks to be obtained by a candidate in the viva voce and personality test. (para 9 of the judgment). In the light of the said provision under the recruitment rules, the Apex Court examined the question. In para 21 it was held as follows:
" It is necessary to bear in mind that no objection can be taken to the fixing of the cut off marks separately for the viva voce as that is the mandate of the statutory rules governing the recruitment. What alone can be objected to is the omission to specify the cut off mark for viva voce in the advertisement and fixing it later on."
In para 31, after considering the contentions, it was held as follows:
"Now coming back to the facts of the case in hand, though the rules framed under Article 309 of the Constitution governing the selection process mandated that there would be minimum qualifying marks each for the written test and the oral interview, the cut off mark for viva voce was not specified in the advertisement. In view of the omission, there were only two courses open. One, to carry on with the selection process and to complete it without fixing any cut off mark for the viva voce and to prepare the select list on the basis of the aggregate iof marks obtained by the candidates in the written test and the viva voce. That would have been clearly wrong and in violation of the statutory rule governing the selection. The other course was to fix the cut off mark for the viva voce and to notify the candidates called for interview about it. This is the course that the Commission followed. This was in compliance with the rules and it did not cause any prejudice to any candidate either. We, thus, see no illegality at all in the selection process."

Therefore, evidently it is not alike case and the exercise was justified in the light of the recruitment rules. Herein, the Regulations do not confer any such power to fix a higher criteria and eligibility at the final stage of the examination itself. Therefore, the said principles may not help to advance the contentions of the learned Standing Counsel. One of the contentions raised by Shri Krishnamoorthy is that many of the candidates in different parts of the country have fairly accepted the condition and the petitioners in these writ petitions alone have approached for an adjudication by filing writ petitions. But that cannot be a yardstick in assessing the legality of the act when a direct challenge is made on the basis of the settled legal principles.



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PostSubject: The final verdict   Tue Jan 29, 2013 8:04 pm

Therefore, the fixingofthe higher aggregate marks as 65%; 60% and 55% for three categories, that too just before the announcement of the result, cannot be justified as the same is not supportable in lawin the light of the principles already discussed. What was absent in the regulation cannot be introduced at the fag end of the examination, just before the announcement of the result, whatever may be the justification for the same.

In the light of the above the writ petitions are allowed. The proceedings ftxing the category-wise qualifying criteria for Lectureship eligibility impugned in the writ petitions, is quashed. It is declared that all the petitioners who have obtained the separate .minimum prescribed in the notification for Papers I, II and III, have cleared the NET and appropriate follow up actions will :be taken to issue certificates to them within one month from the date of receipt of a certified copy of this judgment. No costs.


UGC has given appeal in division bench of high court- So we can wait whether this verdict will be a milestone and ever referable in the legal circles or not

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PostSubject: Re: UGC NET JUNE 2012- The court order, facts and analysis    Thu Apr 04, 2013 1:51 pm

Is this the final verdict ?

Does this mean that candidates having minimum passing marks are passed ? My wife got minimum marks as required, but they didnt declare her passed.

Please guide.
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PostSubject: Re: UGC NET JUNE 2012- The court order, facts and analysis    Thu Apr 04, 2013 2:42 pm

This is the second judgement of Kerala high court single bench order- division bench order is expected within some days.
The first order of kerala high court single bench was ordering ugc to not to distroy OMR answer sheets came in october 2012, second described here cancelled the increase in criteria came in december 2012 and there is a third order from kerala SB in january 2013, which extended the applicability
into non petitioners also.

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PostSubject: Re: UGC NET JUNE 2012- The court order, facts and analysis    Thu Apr 04, 2013 2:49 pm

So we havent filed petition. But order will cover everyone.
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