Orissa High Court
Dr. Amiya Rajan Barik vs State Of Odisha & Others …. Opposite … on 13 November, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.36125 of 2023 & WP(C ) Nos.8115 & 8155 of 2024
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
..................
Dr. Amiya Rajan Barik Petitioner
....
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : Mr. S. Swain, Advocate for
Petitioner in W.P.(C )
Nos.36125 of 2023 and
8115 of 2024
Mr. Sailesh Das in W.P.(C )
No.8155 of 2024.
For Opp. Parties : Mr. B. Mohanty, AGA
(for O.P. No.1 & 2 in all the
cases)
Mr. S.K. Das, Adv.
(for O.P. No.3 in all the case)
Mr. T.K. Satapathy, Adv
(for O.P.4 in all the cases)
Mr. B. Routray, Sr. Adv
along with Mr. S.D. Routray,
Adv.( for Intervenor in W.P.(C )
No.36125 of 2023
Mr. L. Mohanty, Adv
(for Intervenor
in W.P.(C ) No.36125 of 2023
// 2 //
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
------------------------------------------------------------------------------------
Date of Hearing: 06.09.2024 and Date of Judgment: 13.11.2024
---------------------------------------------------------------------------- ---------
Biraja Prasanna Satapathy, J.
1. Since the issue involved in all these three (3) Writ
Petitions are identical, all were heard analogously and
disposed of by the present common order.
2. For the sake of brevity, pleadings made in W.P.(C )
No.36125 of 2023 was taken as the lead case for deciding
the issue in question.
3. Writ petition in W.P.(C ) No.36125 of 2023 has
been filed challenging the advertisement issued by the
State Selection Board (in short, “the Board”) on
11.09.2023 under Annexure-1.Vide the said
advertisement, the Board invited applications to fill up the
post of Lecturers in various discipline including Physics in
non-Government Aided Colleges of Odisha and the last
date for making such application was fixed to 13.10.2023.
Page 2 of 50
// 3 //
3. 1 Learned counsel for the Petitioner contended that
the advertisement so issued under Annexure-1 is the
subject-matter of challenge inter alia on the ground that
the educational qualification prescribed for the Post of
Lecturer being contrary to the notification issued by the
University Grants Commission (in short “Commission”) on
18.07.2018 under Annexure-4, the process of selection so
initiated by the Board for recruitment to the post of
Lecturer in Physics is not sustainable in the eye of law.
3.2. It is contended that as provided in the notification
issued by the Commission on 18.07.2018 under
Annexure-4, the prescribed qualification for the post of
Asst. Professor is as follows:
Assistant Professor:
Eligibility (A or B):
Good academic record, with at least 55% marks (or an
equivalent grade in a point-scale wherever the grading
system is followed) at the Master’s degree in Yoga or any
other relevant subject, or an equivalent degree from an
Indian/foreign University.
Besides fulfilling the above qualifications, the candidate
must have cleared the National Eligibility Test (NET)
conducted by the UGC, CSIR or a similar test accredited
by the UGC like SLET/SET or who are or have been
awarded a Ph. D. Degree in accordance with the
University Grants Commission (Minimum Standards and
Page 3 of 50
// 4 //Procedure for Award of M.Phil./Ph.D. Degree)
Regulations, 2009 or 2016 and their amendments from
time to time.
OR
A Master’s degree in any discipline with at least 55%
marks (or an equivalent grade in a point-scale wherever
the grading system is followed) and a Ph.D. Degree in
Yoga in accordance with the University Grants
Commission (Minimum Standards and Procedure for
Award of M.Phil./Ph.D. Degree) Regulations, 2009 or
2016 and their amendments from time to time as the
case may be.
Note: Considering the paucity of teachers in the newly-
emerging field of Yoga, this alternative has been provided
and shall be valid only for five years from the date of
notification of these Regulations.”
3.3. It is contended that along with the qualification of
55% mark in the Master Degree, in the notification issued
by the Commission under Annexure-4, the other
qualification is the passing of the National Eligibility Test
(NET) conducted by the U.G.C, CSIR or a similar test
accredited by UGC like SLET/SET or those who are or
have been awarded a Ph.D Degree in accordance with the
Commission’s Regulations 2009 or 2016. Since in the
impugned advertisement so issued by the Board under
Annexure-1, no such qualification of NET and/or Ph.D
has been prescribed, the process of selection undertaken
Page 4 of 50
// 5 //by the Board with the said qualification is illegal and
unsustainable in the eye of law.
3.4. It is contended that since acquisition of NET
qualification and/or Ph.D is a mandatory qualification for
the post of Asst. Professor, the Board while issuing the
impugned advertisement could not have prescribed the
qualification i.e. Master Degree with at least 55% of mark
only. It is accordingly contended that since the
qualification prescribed in the impugned advertisement is
not in consonance with the qualification prescribed by the
Commission in its notification dated 18.07.2018 under
Annexure-4, the process of selection so undertaken by the
Board basing on Annexure-1 is vitiated.
3.5. It is also contended that while issuing similar
nature of advertisement as against the post of Lecturer,
Odisha Public Service Commission, (in short, “the OPSC” )
under Annexures-6 & 7 prescribed the qualification as has
been prescribed by the Commission under Annexure-4.
But the Board while issuing the impugned advertisement
since never followed the qualification prescribed by the
Page 5 of 50
// 6 //
Commission which is required to be followed by the Board,
the process of selection initiated under Annexure-1
requires interference of this Court.
3.6. It is also contended that taking into account the
stand taken in the Writ Petition, this Court passed an
interim order on 09.02.2024 inter alia directing that no
final selection be made with regard to the post of Lecturer
in Physics pursuant to Annexure-1 till the next date and
the said interim order was allowed to continue from time
to time.
4. Mr. Sameer Kumar Das, learned counsel appearing
for the Board on the other hand made his submission
basing on the stand taken in the counter affidavit so filed
by Opp. Party No.3.
It is contended that the advertisement under
Annexure-1 was issued with the qualification so prescribed
in terms of the resolution issued by the Government in the
erstwhile Education and Youth Services Department on
25.07.1989 under Annexure-A/3. It is contended that in
Page 6 of 50
// 7 //
the resolution issued under Annexure-A/3, for recruitment
of Lecturers in the affiliated colleges of the State, a
candidate should secure 55% mark at the Master Degree
Examination. Not only that, Government in the said
Resolution also decided that candidates who have secured
54.5% marks or more but below 55% at the Masters
Degree, may be rounded Upto 55%.
4.1. It is contended that since in the resolution so issued
by the Government under Annexure-A/3, the prescribed
qualification is a Masters Degree with 55% mark, the same
was followed by the Board while issuing the advertisement
under Annexure-1 with prescription of the qualification vide
Para-4. It is accordingly contended that since the
advertisement under Annexure-1 was issued in terms of the
qualification prescribed by the Government under
Annexure-A/3, no illegality or irregularity can be found
with the said advertisement.
4.2. Placing reliance on the provisions contained under
para-5 of the advertisement, learned counsel appearing for
the Board contended that even though acquisition of NET
Page 7 of 50
// 8 //
qualification and/or Ph.D qualification was not a
prescribed qualification as indicated in para-4 of the
advertisement, but candidates with having NET
qualification and Ph.D qualification were given preference
for selection as against the post of Lecturer. It is
accordingly contended that since candidates with having
NET and Ph.D qualification were given extra mark towards
Career Assessment, even if such a qualification is not
prescribed for eligible candidates to make the application,
but it cannot be treated that the Board has not followed
the guideline issued by the Commission.
4.3. Learned counsel appearing for the Board also
contended that qualification prescribed by the
Commission under Annexure-4 is not a mandatory
requirement to be followed by the Board while making the
selection to the post of Lecturer pursuant to Annexure-1.
It is also contended that by the time interim order was
passed by this Court on 09.02.2024, process of selection
had already been completed with recommendation of the
candidates for their appointment in different branches and
Page 8 of 50
// 9 //
such selected candidates have already been provided with
the appointment save and except the candidates
recommended as against the discipline Physics.
4.4. Learned counsel appearing for Opp. Party No.3
also contended that the notification issued by the
Commission under Annexure-4 is only applicable for the
post of Asst. Professor (stage-I) but not for recruitment to
the post of Lecturer. It is contended that since the
advertisement under Annexure-1 has been issued for
recruitment to the post of Lecturer and the guideline
issued by the Commission under Annexure-4 is applicable
for recruitment to the post of Asst. Professor (stage-1), the
said guideline is not applicable for recruitment to the post
of Lecturer for which the advertisement under Annexure-1
has been issued.
4.5. It is also contended that the Petitioner pursuant to
Annexure-1 since made the application as against the post
of Lecturer in physics, he is not permitted to challenge the
stipulation contained in the advertisement. It is
accordingly contended that since the qualification so
Page 9 of 50
// 10 //
prescribed in Annexure-1 is in terms of the resolution
issued by the Government under Annexure-A/3, no
illegality or irregularity can be found with the qualification
so prescribed and the Writ Petition is liable for dismissal.
5. Mr. Buddhadev Routray, learned Sr. Counsel and
Mr. Laxmikanta Mohanty, learned counsel appearing for
some of the Intervenor-Petitioners/ selected candidates in
the discipline Physics made similar submission as made
by the learned counsel appearing for the Board.
5.1. It is contended that since the qualification
prescribed in the impugned advertisement is in
accordance with the resolution issued by the Government
under Annexure-A/3, the same cannot be interfered with
by this Court. It is also contended that prior to passing of
the interim order by this Court, process of selection has
already been completed with the appointment of the
selected candidates in all other disciplines save and except
the discipline Physics.
Page 10 of 50
// 11 //
5.2. It is contended that since similarly situated
candidates belonging to all other disciplines have not only
been selected but also appointed, the selected candidates
in the discipline Physics are required to get similar benefit
of appointment. Because of the interim order passed,
intervenor Petitioners who have qualified the recruitment
process, have been deprived from getting the benefit of
appointment.
6. To the stand taken in the counter affidavit so filed
by the Board, learned counsel appearing for the Petitioner
made further submissions basing on the stand taken in
the rejoinder affidavit. Placing reliance on the further
stand taken in the rejoinder affidavit, learned counsel
appearing for the Petitioner contended that as provided
under clause-3.6.1 of resolution dt.06.10.1989 under
Annexure-9, which was issued subsequent to Annexure-
A/3, Government in the erstwhile Education and Youth
Services Deptt. held that the minimum qualification
required for appointment to the post of Lecturers, Readers,
Professors will be those prescribed by the Commission
Page 11 of 50
// 12 //
from time to time. It is also contended that similar view
was also taken by the Government while issuing another
resolution on 19.03.1990 under Annexure-10.
6.1. As provided under Para-2(2)(d) of the Resolution
dt.19.03.1990 under Annexure-10, in order to be eligible
for recruitment to the post of Lecturer, a candidate shall
have a Master Degree in the relevant subject from a
recommended University with at least 55% of mark or it is
equivalent rate. But as provided under Para-2(2) (e), a
candidate has to qualify the comprehensive test conducted
for the purpose of selection of College Teachers by the
U.G.C or the State Government in consultation with the
U.G.C, as the case may be.
6.2. It is also contended that as provided under clause-
(e), candidates possessing M.Phil or Ph.D Degree are not
required to appear the comprehensive test conducted by
the U.G.C. It is accordingly contended that since
subsequent to Annexure-A/3 while issuing further
resolution under Annexures-9 & 10, State Government
decided to follow the qualification prescribed by the U.G.C
Page 12 of 50
// 13 //
for recruitment to the post of Lecturer and the same
having not been followed by the Board while issuing the
impugned advertisement under Annexure-1, the same is
not sustainable in the eye of law.
6.3. It is also contended that Government in the
Department of Higher Education while issuing another
resolution dt.31.12.1999 under Annexure-11 clearly held
that for direct recruitment to the post of Lecturers, the
minimum requirement is of a good academic record, 55%
of marks at the Master’s level and qualifying in the NET or
an accredited test. It was made optional for the University
to exempt Ph.D holders from NET or to appear NET in
their case. Not only that, vide Para 4.5 (b) of the
Resolution under Annexure-11, State Government
resolved that the minimum qualification for the post of
Lecturer will be those as prescribed by the University
Grants Commission from time to time. Para 4.5 (b) & (c)
of the Resolution dt.31.12.1999 so issued under
Annexure-11 reads as follows:
4.5. Recruitment and Qualifications:
Page 13 of 50
// 14 //
(b) The minimum qualifications required for the
post of Lecturers, Readers, Professors, Principals,
will be those as prescribed by the University
Grants Commission from time to time.
(c) The minimum requirements of a good
academic records, 55% of the marks at the
master’s level and qualifying in the National
Eligibility Test, or an accredited test, shall remain
for the appointment of Lecturers. It would be
optional for the University to exempt Ph. D.
holders from NET or to require NET, in their case,
either as a desirable or essential qualification for
appointment as Lecturers in the University
Departments and Colleges.. The minimum
requirement of 55% should not be insisted upon
for Professors, Readers, for the existing
incumbents who are already in the University
system. However, these marks should be insisted
upon for those entering the system from outside
and those at the entry point of Lecturers.”
6.4. It is accordingly contended that since
subsequent to Annexure-A/3 while issuing the
resolution dt.31.12.1999 under Annexure-11
Government in the Department of Higher Education
prescribed the minimum qualification for appointment of
Teachers in the University and Colleges as prescribed
by the Commission and as provided under Para 4.5 (c),
the minimum qualification so prescribed is 55% in the
Master’s level with acquisition of qualification of NET
and/or Ph.D, the Board was supposed to follow the
subsequent resolution issued under Annexure-11
Page 14 of 50
// 15 //
instead of acting on the resolution issued under
Annexure-A/3, so issued on 25.07.1989.
6.5. Learned counsel for the Petitioner placing
reliance on the notification issued by the Higher
Education Deptt. on 14.09.2014 under Annexure-5 also
contended that while amending Rule 4(2) of the relevant
recruitment Rule i.e Orissa Education Service (College
Branch) Recruitment Amendment Rules, 2012, clause
(e) was substituted with the following clause.
(ii) Clause (e) shall be substituted by the following
clause, namely:-
(i) NET shall remain the compulsory requirement
for appointment as Lecturer for those with post-
graduate degree, but the candidates having Ph.D.
Degree in accordance with the provisions of the
University Grants Commission (Minimum
Standards and Procedure for award of Ph.D.
Degree) Regulations, 2009 on the concerned
subject shall be exempted from the requirement of
the minimum eligibility conditions of
NET/SLET/SET.
(ii) The Commission shall consider and recommend
the names of NET qualified candidates and Ph.D.
Degree holders for such appointment after
conducting viva-voce test”.
6.6. It is also contended that as found from the
resolution issued by the Higher Education Deptt. on
04.04.2016 under Annexure-3 series, post of Lecturer
Page 15 of 50
// 16 //
was redesignated as Asst. Professor( stage-I). It is
contended that since post of Lecturer in terms of
resolution dt.04.04.2016 was re-designated as Asst.
Professor(stage-I), the stand taken by the Board that
since the recruitment basing on Annexure-1
advertisement is for the post of Lecturer and the
qualification prescribed under Annexure-4 is for the
Post of Asst. Professor (Stage-I), the contention raised
by the Board is not acceptable.
6.7. It is further contended that even though pursuant
to the advertisement issued under Annexure-1,
Petitioner made his application, but on finding that the
qualification so prescribed is not in accordance with
the qualification prescribed by the Commission,
Petitioner never participated in the selection process.
6.8. In support of the stand taken in the Writ Petition
and the rejoinder affidavit, learned counsel for the
Petitioner relied on the following decisions:
Page 16 of 50
// 17 //
1. Gambhirdan K Gadhvi Vs. State of
Gujarat and others, Writ Petition (Civil)
No.1525 of 2019, decided on 03.03.2022.
2. State of West Bengal Vs. Anindya Sundar
Das & Others, Civil Appeal No.No.6706 of
2022, decided on 11.10.2022.
3. Professor (Dr). Sreejith P.S Vs. Dr.
Rajasree M.S & Others, Civil Appeal
No.7634- 7635 of 2022, decided on
21.10.2022.
4. Kunja Behari Panda and others Vs. State
of Odisha and Others, W.P(C) No.33452 of
2020 decided on 24.01.2022.
In case of Gambhirdan K Gadhvi , Hon’ble Apex
Court in para-15 & 16 of the said judgment has held
as follows:
15. Thus, we find that the appointment of
Respondent 4 is contrary to the UGC Regulations,
2018. Also, Respondent 4 has been appointed by a
Search Committee, not constituted as per the UGC
Regulations, 2018. Moreover, Respondent 4 does not
fulfil the eligibility criteria as per the UGC
Regulations, 2018, namely, having ten years of
teaching work experience as a Professor in the
university system. As observed hereinabove, by
adopting the Scheme and having accepted 80% of the
maintenance expenditure from the Central
Government and when Respondent 4 is paid a fixed
pay of Rs 75,000 along with a special allowance of
Rs 5000 per month, which is prescribed as per the
Scheme of 2008, the State and the universities
thereunder are bound by the UGC Regulations, 2010
including the UGC Regulations, 2018.
Therefore, when the appointment of Respondent 4
is found to be contrary to the UGC Regulations, 2018
and the UGC Regulations are having the statutory
force, we are of the opinion that this is a fit case to
Page 17 of 50
// 18 //
issue a writ of quo warranto and to quash and set
aside the appointment of Respondent 4 as the Vice-
Chancellor of the SP University.
16. It cannot be disputed that the UGC Regulations
are enacted by the UGC in exercise of powers under
Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956.
Even as per the UGC Act every rule and regulation
made under the said Act, shall be laid before each
House of Parliament. Therefore, being a subordinate
legislation, UGC Regulations becomes part of the Act.
In case of any conflict between the State legislation
and the Central legislation, Central legislation shall
prevail by applying the rule/principle of repugnancy
as enunciated in Article 254 of the Constitution as the
subject “education” is in the Concurrent List (List III)
of the Seventh Schedule to the Constitution. Therefore,
any appointment as a Vice-Chancellor contrary to the
provisions of the UGC Regulations can be said to be in
violation of the statutory provisions, warranting a writ
of quo warranto.
In the case of Anindya Sundar Das, Hon’ble Apex Court
in Para 55 & 56 has held as follows:
55. A “removal of difficulty clause” has been
construed in Madeva Upendra Sinai v. Union of
India [Madeva Upendra Sinai v. Union of India,
(1975) 3 SCC 765 : 1975 SCC (Tax) 105] , which
reads as follows : (SCC pp. 775-76, para 39)
“39. To keep pace with the rapidly increasing
responsibilities of a welfare democratic State, the
Legislature has to turn out a plethora of hurried
legislation, the volume of which is often matched
with its complexity. Under conditions of extreme
pressure, with heavy demands on the time of the
Legislature and the endurance and skill of the
draftsman, it is well-nigh impossible to foresee all
the circumstances to deal with which a statute is
enacted or to anticipate all the difficulties that might
arise in its working due to peculiar local conditions
or even a local law. This is particularly true when
Parliament undertakes legislation which gives a
new dimension to socio-economic activities of the
State or extends the existing Indian laws to new
Page 18 of 50
// 19 //territories or areas freshly merged in the Union of
India. In order to obviate the necessity of
approaching the Legislature for removal of every
difficulty, howsoever trivial, encountered in the
enforcement of a statute, by going through the time-
consuming amendatory process, the Legislature
sometimes thinks it expedient to invest the
Executive with a very limited power to make minor
adaptations and peripheral adjustments in the
statute, for making its implementation effective,
without touching its substance. That is why the
“removal of difficulty clause”, once frowned upon
and nick-named as “Henry VIII clause” in scornful
commemoration of the absolutist ways in which that
English King got the “difficulties” in enforcing his
autocratic will removed through the instrumentality
of a servile Parliament, now finds acceptance as a
practical necessity, in several Indian statutes of
post-Independence era.”
56. The State Government chose the incorrect path
under Section 60 by misusing the “removal of
difficulty clause” to usurp the power of the
Chancellor to make the appointment. A Government
cannot misuse the “removal of difficulty clause” to
remove all obstacles in its path which arise due to
statutory restrictions. Allowing such actions would
be antithetical to the rule of law. Misusing the
limited power granted to make minor adaptations
and peripheral adjustments in a statute for making
its implementation effective, to sidestep the
provisions of the statute altogether would defeat the
purpose of the legislation.
In the case of Professor (Dr). Sreejith P.S.,
Hon’ble Apex Court in para-8, 8.2 to 8.4 of the said
judgment has held as follows:
8. Identical question came to be considered by this
Court in the case of Gambhirdan K. Gadhvi (supra)
and Kalyani Mathivanan (supra). Now, the issue
Page 19 of 50
// 20 //whether the UGC Regulations shall prevail vis-à-
vis the State legislation/State Act, identical
question came to be considered by this Court in the
recent decision of this Court in the case
of Gambhirdan K. Gadhvi (supra). While
considering the appointment of the Vice Chancellor
in the Sardar Patel University, Gujarat, it is
specifically observed and held by this Court that
the appointment of Vice Chancellor cannot be
made dehors the applicable UGC Regulations,
even if the State Act concerned prescribes diluted
eligibility criteria, vis-à-vis the criteria prescribed in
the applicable UGC Regulations. It is further
observed and held by this Court in the aforesaid
decision that the State Act if not on a par with the
UGC Regulations, must be amended to bring it on
a par with the applicable UGC Regulations and
until then it is the applicable UGC Regulations that
shall prevail. It is further observed and held that
being a subordinate legislation, UGC Regulations
become part of the Act. It is further observed and
held that in case of any conflict between the State
legislation and the Central legislation, the Central
legislation, i.e., the applicable UGC Regulations
shall prevail by applying the principle of
repugnancy under Article 254 of the Constitution
as the subject “education” is contained in the
Concurrent List of Schedule VII of the Constitution.
8.2. Even in the case of Kalyani Mathivanan
(supra), it is observed in paragraph 53 that to the
extent the State legislation is in conflict with the
Central legislation including subordinate
legislation made by the Central legislation under
Entry 25 of the Concurrent List, the same shall be
repugnant to the Central legislation and would be
inoperative. It is also required to be noted that in
the case of Kalyani Mathivanan (supra), this Court
was considering the UGC Regulations, 2010,
which were silent in regard to the post of Vice
Chancellor.
8.3 The decision of this Court in the case of
Gambhirdan K. Gadhvi (supra) has been
Page 20 of 50
// 21 //
subsequently followed by this Court in the recent
decision of this Court in the case of Anindya
Sundar Das & Ors (supra) while considering the
appointment of the Vice Chancellor of Calcutta
University. In the said decision, it is also observed
and held in paragraph 56 that in view of the
decision in the case of Gambhirdan K Gadhvi
(supra), even if the provisions of the State Act
allowed the appointment of the Vice Chancellor by
the State government, it would have to be as per
the UGC Regulations and any appointment of Vice
Chancellor in violation of the UGC Regulations
shall be void ab initio. It 12 is further observed
that the UGC Regulations shall become part of the
statute framed by Parliament and, therefore, shall
prevail.
8.4 In view of the above two binding decisions of
this Court, any appointment as a Vice Chancellor
made on the recommendation of the Search
Committee, which is constituted contrary to the
provisions of the UGC Regulations shall be void ab
initio. If there is any conflict between the State
legislation and the Union legislation, the Union law
shall prevail even as per Article 254 of the
Constitution of India to the extent the provision of
the State legislation is repugnant. Therefore, the
submission on behalf of the State that unless the
UGC Regulations are specifically adopted by the
State, the UGC Regulations shall not be applicable
and the State legislation shall prevail unless UGC
Regulations are specifically adopted by the State
cannot be accepted.
Similarly, in the case of Kunja Behari Panda and
others, this Court in para 56 of the said judgment has
held as follows:
Page 21 of 50
// 22 //
“56.A perusal of the above provisions show that the
minimum qualifications for appointment of teaching staff
as prescribed in the UGC Regulations 2018, have in fact
been adhered to and not diluted. Section 21(2) of the
amended Act, as set out, indeed requires such
adherence. The OUA Act does not change the minimum
qualifications for either the VC or the teaching staff.
Only the method of their selection has been amended
and this in no way affects the minimum standards of
higher education.
7. To the submission made by the learned counsel
appearing for the Petitioner that pursuant to the
advertisement, Petitioner though made his application
but never participated in the selection process, learned
counsel appearing for the Board fairly accepted the
said contention. But with regard to the resolution
issued by the Government on 31.12.1999 under
Annexure-11, learned counsel appearing for the Board
as well as learned Sr. Counsel appearing for the
Intervenor-Petitioners contended that the stipulation
contained in Resolution dt.31.12.1999 is only with
regard to the revision of pay-scale and other related
service benefits applicable to the existing teachers of
non-Government aided colleges in respect of UGC Scale
Page 22 of 50
// 23 //
of Pay by 1.1.1986 so reflected under para-4.1 of the
Resolution. Para-4.1 of the resolution reads as follows:
“Coverage-The revised scales of pay and other related
service benefits shall be applicable to all the full-time
teachers working in the Utkal University, the Berhampur
University, the Sambalpur University, the Shree
Jagannath Sanskrit Viswa vidyalaya, Puri, Government
Colleges and Non-Government Aided Colleges who were
in receipt of January, 1996. The scheme shall also be
applicable to the full time teachers of the College of
Acanantancy and Management Studies, Cuttack who
were in receipt of U.G.C. Scales of pay as on 1st
January, 1996.”
7.1. It is contended that since resolution issued
under Annexure-11 is only with regard to revision of
pay scale, in view of the provisions contained under
para 4.1, the qualification prescribed vide Para 4.5 (b)
& (c) are not required to be followed and the stipulation
contained in Annexure-A/3 still govern the field. It is
also contended that since Petitioner pursuant to
Annexure-1 made his application though not
participated in the selection process, the Writ Petition
at his instance is not maintainable.
7.2. In support of the aforesaid contention, learned
counsel appearing for the Board relied on the decisions
of the Hon’ble Apex Court in the case of Neetu Sharma
Page 23 of 50
// 24 //
Vs. State of Punjab & Others, reported in AIR 2007
Supreme Court 758. Hon’ble Apex Court in
para10,12 & 13 has held as follows:
10. Public interest litigation is a weapon which has to
be used with great care and circumspection and the
judiciary has to be extremely careful to see that behind
the beautiful veil of public interest an ugly private
malice, vested interest and/or publicity-seeking is not
lurking. It is to be used as an effective weapon in the
armory of law for delivering social justice to the
citizens. The attractive brand name of public interest
litigation should not be allowed to be used for
suspicious products of mischief. It should be aimed at
redressal of genuine public wrong or public injury and
not publicity-oriented or founded on personal vendetta.
As indicated above, courts must be careful to see that a
body of persons or member of public, who approaches
the court is acting bona fide and not for personal gain
or private motive or political motivation or other oblique
consideration. The court must not allow its process to
be abused for oblique considerations by masked
phantoms who monitor at times from behind. Some
persons with vested interest indulge in the pastime of
meddling with judicial process either by force of habit
or from improper motives and try to bargain for a good
deal as well to enrich themselves. Often they are
actuated by a desire to win notoriety or cheap
popularity. The petitions of such busybodies deserve to
be thrown out by rejection at the threshold, and in
appropriate cases with exemplary costs.
xxx xxx xxx
12. When a particular person is the object and target of
a petition styled as PIL, the court has to be careful to see
whether the attack in the guise of public interest is
really intended to unleash a private vendetta, personal
grouse or some other mala fide object.
13. Therefore, as rightly submitted by learned counsel
for the appellant, writ petition itself was not
maintainable. To that extent the High Court’s order
cannot be maintained. But it appears that the official
Page 24 of 50
// 25 //
respondents have already initiated action as regards
the caste certificate. Though PIL is not to be entertained
in service matters, that does not stand in the way of the
officials from examining the question in the right
perspective. In the present case admittedly the officials
have initiated action. What action will be taken in such
proceedings is not the subject-matter of controversy in
the present appeal. However, it shall not be construed
as if we have expressed any opinion on the merits of the
proceedings stated to be pending. The only issue which
has been examined relates to the locus standi of the writ
petitioner (Respondent 7) to file PIL.
Reliance was also placed to a decision of the
Hon’ble Apex Court in the case of Girjesh Shri Vastava
& Others Vs. State of Madhya Pradesh & Others,
reported in (2010) 10 SCC 707. Hon’ble Apex Court
in para-14 & 19 has held as follows:
14. However, the main argument by the appellants
against entertaining WP (C) No. 1520 of 2001 and WP
(C) No. 63 of 2002 is on the ground that a PIL in a
service matter is not maintainable. This Court is of the
opinion that there is considerable merit in that
contention. It is common ground that dispute in this
case is over selection and appointment which is a
service matter.
19. In a recent decision of this Court delivered on 30-8-
2010, in Hari Bansh Lal v. Sahodar Prasad
Mahto [(2010) 9 SCC 655] , it has been held that except
in a case for a writ of “quo warranto”, PIL in a service
matter is not maintainable.
7.3. It is also contended that the Regulation
prescribed by the U.G.C though is mandatory, but it is
not regulatory and the State is free to decide as to
Page 25 of 50
// 26 //
whether UGC Regulation is to be adopted by it or not
or to take its own decision which has consequential
financial implications.
In support of the aforesaid contention , reliance
was placed to a decision of the Hon’ble Apex Court in
the case of Jagdish Prasad Sharma and Others Vs.
State of Bihar & Others, (2013) 8 SCC 633. Hon’ble
Apex Court in para 78 of the said judgment has held as
follows:
78. We are then faced with the situation where a
composite scheme has been framed by UGC, whereby
the Commission agreed to bear 80% of the expenses
incurred by the State if such scheme was to be
accepted, subject to the condition that the remaining
20% of the expense would be met by the State and that
on and from 1-4-2010, the State Government would take
over the entire burden and would also have enhanced
the age of superannuation of teachers and other staff
from 62 to 65 years. There being no compulsion to
accept and/or adopt the said Scheme, the States are
free to decide as to whether the Scheme would be
adopted by them or not. In our view, there can be no
automatic application of the recommendations made by
the Commission, without any conscious decision being
taken by the State in this regard, on account of the
financial implications and other consequences attached
to such a decision. The case of those petitioners who
have claimed that they should be given the benefit of the
Scheme dehors the responsibility attached thereto,
must, therefore, fail.
Page 26 of 50
// 27 //
It is also contended that Regulation issued by the
Commission are partly mandatory and partly directory
in view of the decision of the Hon’ble Apex Court in the
case of Kalyani Mathivanan Vs. K.V. Jeyaraj and
Others, (2015) SCC 363. Hon’ble Apex Court in
Paragraph- 20, 27, 62.3 & 62.4 and 62.5 of the said
judgment has held as follows:
20. We have heard the learned counsel for the parties
and the issues that arise for our consideration are:
(i) whether the UGC Regulations, 2010 are mandatory in
nature; and
(ii) whether in the event of conflict between the
University Act, the regulations framed thereunder and
the UGC Regulations, 2010, the provisions of the UGC
Regulations, 2010 would prevail or not; and
(iii) whether the post of Vice-Chancellor of a university is
to be considered as part of the teaching staff.
xxx xxx xxx
27. From the aforesaid provisions, we find that the
University Grants Commission has been established for
the determination of standard of universities, promotion
and coordination of university education, for the
determination and maintenance of standards of
teaching, examination and research in universities, for
defining the qualifications regarding the teaching staff of
the university, maintenance of standards, etc. For the
purpose of performing its functions under the UGC Act
(see Section 12) like defining the qualifications and
standard that should ordinarily be required of any
person to be appointed in the universities [see Sections
26(1)(e) & (g)] UGC is empowered to frame regulations. It
is only when both the Houses of Parliament approve the
regulation, the same can be given effect to. Thus, we
hold that the UGC Regulations though a subordinate
legislation has binding effect on the universities to
Page 27 of 50
// 28 //which it applies; and consequence of failure of the
university to comply with the recommendations of the
Commission, UGC may withhold the grants to the
university made out of the fund of the Commission
(see Section 14).
xxx xxx xxx
62.3. The UGC Regulations, 2010 are mandatory to
teachers and other academic staff in all the Central
universities and colleges thereunder and the institutions
deemed to be universities whose maintenance
expenditure is met by UGC.
62.4. The UGC Regulations, 2010 are directory for the
universities, colleges and other higher educational
institutions under the purview of the State legislation as
the matter has been left to the State Government to
adopt and implement the Scheme. Thus, the UGC
Regulations, 2010 are partly mandatory and is partly
directory.
62.5. The UGC Regulations, 2010 having not been
adopted by the State of Tamil Nadu, the question of
conflict between the State legislation and the Statutes
framed under the Central legislation does not arise.
Once they are adopted by the State Government, the
State legislation to be amended appropriately. In such
case also there shall be no conflict between the State
legislation and the Central legislation.
7.4. It is contended that in the decision of the Hon’ble
Apex Court rendered in the case of Dr. J. Bijayan &
Others Vs. State of Kerala and others , Civil Appeal
No.5037 of 2022, disposed of on 02.08.2022, it has
been held that State is not bound to accept or follow
the UGC Regulation.
7.5. It is also contended that decision relied on by the
Writ Petitioner that even after participating in the
Page 28 of 50
// 29 //
selection process, a candidate at the later stage can
challenge the correctness of the selection and
advertisement, the same is not permissible in view of
the decision rendered in the case of Dr.(Major) Meeta
Sahai Vs. State of Bihar & Others, Civil Appeal
No.9482 of 2019, disposed of on 17.12.2019. In
para 15 to 17 of the aforesaid judgment, it has been
held as follows :
15. Furthermore, before beginning analysis of the
legal issues involved, it is necessary to first
address the preliminary issue. The
maintainability of the very challenge by the
appellant has been questioned on the ground that
she having partaken in the selection process
cannot later challenge it due to mere failure in
selection. The counsel for the respondents relied
upon a catena of decisions of this Court to
substantiate his objection.
16. It is well settled that the principle of estoppel
prevents a candidate from challenging the
selection process after having failed in it as
iterated by this Court in a plethora of judgments
including Manish Kumar Shahi v. State of
Bihar [Manish Kumar Shahi v. State of Bihar,
(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] ,
observing as follows: (SCC p. 584, para 16)
“16. We also agree with the High Court [Manish
Kumar Shahi v. State of Bihar, 2008 SCC OnLine
Pat 321 : (2008) 4 PLJR 93] that after having
taken part in the process of selection knowing
fully well that more than 19% marks have been
earmarked for viva voce test, the appellant is not
entitled to challenge the criteria or process of
selection. Surely, if the appellant’s name had
appeared in the merit list, he would not have even
dreamed of challenging the selection. The
Page 29 of 50
// 30 //[appellant] invoked jurisdiction of the High Court
under Article 226 of the Constitution of India only
after he found that his name does not figure in the
merit list prepared by the Commission. This
conduct of the appellant clearly disentitles him
from questioning the selection and the High Court
did not commit any error by refusing to entertain
the writ petition.” [ See also: Madan Lal v. State of
J&K, (1995) 3 SCC 486 : 1995 SCC (L&S)
712, Marripati Nagaraja v. State of A.P., (2007) 11
SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay
Malik v. State of Uttaranchal, (2008) 4 SCC 171 :
(2008) 1 SCC (L&S) 1005 and K.A.
Nagamani v. Indian Airlines, (2009) 5 SCC 515 :
(2009) 2 SCC (L&S) 57]
The underlying objective of this principle is to
prevent candidates from trying another shot at
consideration, and to avoid an impasse wherein
every disgruntled candidate, having failed the
selection, challenges it in the hope of getting a
second chance.
17. However, we must differentiate from this
principle insofar as the candidate by agreeing to
participate in the selection process only accepts
the prescribed procedure and not the illegality in
it. In a situation where a candidate alleges
misconstruction of statutory rules and
discriminating consequences arising therefrom,
the same cannot be condoned merely because a
candidate has partaken in it. The constitutional
scheme is sacrosanct and its violation in any
manner is impermissible. In fact, a candidate may
not have locus to assail the incurable illegality or
derogation of the provisions of the Constitution,
unless he/she participates in the selection
process.
7.6. It is also contended that since the Writ Petition has
been filed without impleading the selected candidates,
the Writ Petition is not maintainable. In support of the
contention, reliance was placed on a decision rendered
by this Cout in the case of Hansmina Kumari Das &
Page 30 of 50
// 31 //
Others Vs. State of Orissa & Others, W.P.(C )
NO.1966 of 2017, disposed of on 05.08.2022. In
para-11 of the said judgment, it has been held as
follows:
11. Secondly, only one private individual, who was
allegedly disqualified for being appointed as a primary
school teacher, has been impleaded as Opposite Party
No.9. Although several names have been mentioned in
Para-4 of the writ petition, the others have not been
made as Opposite Parties. There is no convincing
explanation given for this.
8. Mr. Buddhadev Routray, learned Sr. Counsel
appearing for the Intervenor-Petitioners and Mr.
Laxmikant Mohanty, learned counsel appearing for
some other intervenor-Petitioners also placed reliance on
the decisions cited by the learned counsel appearing for
the Board in the case of Jagadish Prasad Sharma as
well as Kalyani Mathivanan. Further reliance was
placed on a decision of this Court in the case of Kunja
Bihari Panda & Others Vs. State of Odisha &
Others, W.P.(C ) No.33452 of 2020, decided on
24.01.2022 and Asit Kumar Jenamani Vs. State of
Odisha & Others, W.P.(C ) No.13666 of 2020 &
batch, decided on 20.04.2020.
Page 31 of 50
// 32 //
In the case of Jagadish Prasad Sharma, Hon’ble
Apex Court in para 2,35,67 to 72,77 & 79 has held as
follows:
2. The common thread running through all these
various matters is the question as to whether certain
regulations framed by the University Grants
Commission had a binding effect on educational
institutions being run by the different States and even
under the State enactments.
35. Appearing for the State of Kerala, Ms Bina
Madhavan, learned Advocate, contended that under
Article 309 of the Constitution, the State Government is
empowered to frame its own rules and regulations in
regard to service conditions of its employees.
Furthermore, Section 2 of the Kerala Public Service
Commission Act, 1968, empowers the State
Government to make rules either prospectively or
retrospectively to regulate the recruitment and
conditions of service for persons appointed to the public
services and posts in connection with the affairs of the
State of Kerala. Ms Madhavan submitted that under
the Kerala Service Rules, 1958, enacted by the State
Government under the proviso to Article 309 of the
Constitution, the age of retirement of teachers in
colleges has been fixed to be 55 years. Subsequently,
however, by G.O.P. No. 170/12/Fin. dated 22-3-2012,
the age of compulsory retirement was enhanced to 56
years and the age of superannuation has been
enhanced to 60 years. Ms Madhavan urged that
having regard to the UGC Regulations dated 30-6-
2010, a decision was taken to revise the scales of pay
and other service conditions, including the age of
superannuation in the Central universities and other
institutions maintained and funded by the University
Grants Commission, strictly in accordance with the
decision of the Central Government. However, the
revised scales of pay and age of superannuation, as
provided under Para 2.1.10 and under Para 2.3.1, will
also be extended to universities, colleges and other
higher educational institutions coming under the
purview of the State Legislature and maintained by the
State Governments, subject to the implementation of
Page 32 of 50
// 33 //
the Scheme as a composite one as contemplated in the
Regulations.
xxx xxx xxx
67. One of the common submissions made on behalf of
the respondents was whether the aforesaid Scheme
would automatically apply to the Centrally-funded
institutions, to the State universities and educational
institutions and also private institutions at the State
level, on account of the stipulation that the Scheme
would have to be accepted in its totality. As indicated
hereinbefore in this judgment, the purport of the
Scheme was to enhance the pay of the teachers and
other connected staff in the State universities and
educational institutions and also to increase their age
of superannuation from 62 to 65 years. The Scheme
provides that if it was accepted by the State concerned,
UGC would bear 80% of the expenses on account of
such enhancement in the pay structure and the
remaining 20% would have to be borne by the State.
This would be for the period commencing from 1-1-
2006 till 31-3-2010, after which the entire liability on
account of revision of pay scales would have to be
taken over by the State Government. Furthermore,
financial assistance from the Central Government
would be restricted to revision of pay scales in respect
of only those posts which were in existence and had
been filled up as on 1-1-2006. While most of the States
were willing to adopt the Scheme, for the purpose of
receiving 80% of the salary of the teachers and other
staff from UGC which would reduce their liability to
20% only, they were unwilling to accept the Scheme in
its composite form which not only entailed acceptance
of the increase in the retirement age from 62 to 65
years, but also shifted the total liability in regard to the
increase in the pay scales to the States after 1-4-2010.
68. Another anxiety which is special to certain States,
such as the States of Uttar Pradesh and Kerala, has
also come to light during the hearing. In both the
States, the problem is one of surplusage and providing
an opportunity for others to enter into service. On
behalf of the State of Kerala, it had been urged that
there were a large number of educated unemployed
youth, who are waiting to be appointed, but by
retaining teachers beyond the age of 62 years, they
were being denied such opportunity. As far as the
Page 33 of 50
// 34 //
State of U.P. is concerned, it is one of job expectancy,
similar to that prevailing in Kerala. The State
Governments of the said two States were, therefore,
opposed to the adoption of the UGC Scheme, although,
the same has not been made compulsorily applicable to
the universities, colleges and other institutions under
the control of the State authorities.
69. To some extent there is an air of redundancy in the
prayers made on behalf of the respondents in the
submissions made regarding the applicability of the
Scheme to the State and its universities, colleges and
other educational institutions. The elaborate arguments
advanced in regard to the powers of UGC to frame
such regulations and/or to direct the increase in the
age of teachers from 62 to 65 years as a condition
precedent for receiving aid from UGC, appears to have
little relevance to the actual issue involved in these
cases. That the Commission is empowered to frame
regulations under Section 26 of the UGC Act, 1956, for
the promotion and coordination of university education
and for the determination and maintenance of
standards of teaching, examination and research,
cannot be denied. The question that assumes
importance is whether in the process of framing such
regulations, the Commission could alter the service
conditions of the employees which were entirely under
the control of the States in regard to State institutions?
70. The authority of the Commission to frame
regulations with regard to the service conditions of
teachers in the Centrally-funded educational
institutions is equally well-established. As has been
very rightly done in the instant case, the acceptance of
the Scheme in its composite form has been left to the
discretion of the State Governments. The concern of the
State Governments and their authorities that UGC has
no authority to impose any conditions with regard to its
educational institutions is clearly unfounded. There is
no doubt that the Regulations framed by UGC relate to
Schedule VII List I Entry 66 to the Constitution, but it
does not empower the Commission to alter any of the
terms and conditions of the enactments by the States
under Article 309 of the Constitution. Under List III
Entry 25, the State is entitled to enact its own laws
with regard to the service conditions of the teachers
and other staff of the universities and colleges within
Page 34 of 50
// 35 //
the State and the same will have effect unless they are
repugnant to any Central legislation.
71. However, in the instant case, the said questions do
not arise, inasmuch as, as mentioned hereinabove, the
acceptance of the Scheme in its composite form was
made discretionary and, therefore, there was no
compulsion on the State and its authorities to adopt the
Scheme. The problem lies in the desire of the State and
its authorities to obtain the benefit of 80% of the
salaries of the teachers and other staff under the
Scheme, without increasing the age of retirement from
62 to 65 years, or the subsequent condition regarding
the taking over of the Scheme with its financial
implications from 1-4-2010.
72. As far as the States of Kerala and U.P. are
concerned, they have their own problems which are
localised and stand on a different footing from the
other States, none of whom who appear to have the
same problem. Education now being a List III subject,
the State Government is at liberty to frame its own
laws relating to education in the State and is not,
therefore, bound to accept or follow the Regulations
framed by UGC. It is only natural that if they wish to
adopt the Regulations framed by the Commission
under Section 26 of the UGC Act, 1956, the States will
have to abide by the conditions as laid down by the
Commission.
xxx xxx xxx
77. We are inclined to agree with such submission
mainly because of the fact that in the amended
provisions of Section 67(a) it has been categorically
stated that the age of superannuation of non-teaching
employees would be 62 years and, in no case, should
the period of service of such non-teaching employees
be extended beyond 62 years. A difference had been
made in regard to the teaching faculty whose services
could be extended up to 65 years in the manner laid
down in the University Statutes. There is no ambiguity
that the final decision to enhance the age of
superannuation of teachers within a particular State
would be that of the State itself. The right of the
Commission to frame regulations having the force of
law is admitted. However, the State Governments are
also entitled to legislate with matters relating to
Page 35 of 50
// 36 //
education under List III Entry 25. So long as the State
legislation did not encroach upon the jurisdiction of
Parliament, the State legislation would obviously have
primacy over any other law. If there was any
legislation enacted by the Central Government under
List III Entry 25, both would have to be treated on a
par with each other [Ed.: But see Articles 254(1) and
246 of the Constitution.] . In the absence of any such
legislation by the Central Government under List III
Entry 25, the regulations framed by way of delegated
legislation have to yield to the plenary jurisdiction of
the State Government under List III Entry 25.
79. However, within this class of institutions there is a
separate group where the State Governments
themselves have taken a decision to adopt the Scheme.
In such cases, the consequences envisaged in the
Scheme itself would automatically follow.
In the case of Kalyani Mathivanan, Hon’ble
Apex Court in paragraph-62 has held as follows:
62. In view of the discussion as made above, we hold:
62.1. To the extent the State legislation is in conflict
with the Central legislation including subordinate
legislation made by the Central legislation under Entry
25 of the Concurrent List shall be repugnant to the
Central legislation and would be inoperative.
62.2. The UGC Regulations being passed by both the
Houses of Parliament, though a subordinate legislation
has binding effect on the universities to which it
applies.
62.3. The UGC Regulations, 2010 are mandatory to
teachers and other academic staff in all the Central
universities and colleges thereunder and the
institutions deemed to be universities whose
maintenance expenditure is met by UGC.
62.4. The UGC Regulations, 2010 are directory for the
universities, colleges and other higher educational
institutions under the purview of the State legislationPage 36 of 50
// 37 //as the matter has been left to the State Government to
adopt and implement the Scheme. Thus, the UGC
Regulations, 2010 are partly mandatory and is partly
directory.
62.5. The UGC Regulations, 2010 having not been
adopted by the State of Tamil Nadu, the question of
conflict between the State legislation and the Statutes
framed under the Central legislation does not arise.
Once they are adopted by the State Government, the
State legislation to be amended appropriately. In such
case also there shall be no conflict between the State
legislation and the Central legislation.
In the case of Kunja Bihari Panda, this Court in
Paragraph-41,57 & 63 has held as follows:
41. The other decision relied on by the Petitioners is
Annamalai University v. Information and Tourism
Department (supra). There the focus was on
maintaining minimum standards of education.
Although it was held that the State Legislation to the
extent it was in conflict with the Central Legislation,
including a subordinate legislation like the UGC
Regulations, would be inoperative, but as explained in
Kalyani Mathivanan v. K.V. Jeyaraj (supra), unless the
UGC Regulations are adopted by the State Government
and implemented, the question of repugnancy would
not arise.
xxx xxx xxx
57. The Court’s attention was drawn to Article 309 of
the Constitution of India which empowers the
‘appropriate legislature’ to regulate the ‘recruitment’
and ‘conditions of service’ of persons appointed to
public services and posts in connection with the affairs
of the state or the Union as the case may be. The
method of selection and appointment is a sub-set of
‘recruitment’ and the State legislature can enact a law
to regulate it. In Jagdish Prasad Sharma v. State of
Bihar (supra), the Supreme Court reminded that:
“Under Entry 25 of List III, the State is entitled to enact
its own laws with regard to the service conditions of
the teachers and other staff of the universities andPage 37 of 50
// 38 //colleges within the State and the same will have effect
unless they are repugnant to any central legislation.”
In the same decision, it was further emphasised that in
the absence of legislation by the central government
under Entry 25 List III, the subordinate legislation
under Entry 66 List I will have to yield to the ‘plenary
jurisdiction of the State Government under List III Entry
25.”
xxx xxx xxx
63. In the present case, the UGC Regulations 2018 do
not affect the power of the State to determine the
process and method of selection of the VCs and the
teaching staff. The UGC Regulations 2018 cannot be
said to occupy the entire field in relation to the said
issue.
In the case of Dr. Asit Kumar Jenamani, this
Court in paragraph 24 & 25 has held as follows:
24. Indeed fixing the age of superannuation of an
employee is an essential part of the service condition
and a decision in that regard has to be taken on rational
basis by an employer. Whether it should be 60 or 65
years is entirely for the employer to decide. Merely
because the Government of Odisha has decided not to
implement the UGC Regulations in this regard would not
make Rule 19 of the 1974 Rules ultra vires the UGC
Regulations or unconstitutional. Page 14 of 16 W.P.(C)
No.13666 of 2020 and batch.
25. It is pointed out how the notification dated 31st
December 2008 of the MHRD which provides for
payment of central assistance for implementation of the
scheme is subject to the condition that the entire scheme
of revision of pay scales together with all the conditions
laid down in UGC would be implemented by the State
Government in Universities. The Government of Odisha,
it is pointed out, had never exercised the option of
adopting such a composite scheme and never presented
any proposal to the Government of India to avail any
central assistance for implementing the scheme. It has
implemented the scheme only in a limited context of
revision of pay scales following the revision of pay scalePage 38 of 50
// 39 //of Central Government employees on the
recommendations of the 6th CPC.
8.1. It is also contended that since the selected
candidates pursuant to Annexure-1 in all other
disciplines have got the benefit of appointment on the
ground of equity, the selected candidates in the
discipline Physics be also extended with similar benefit.
In support of such submission, reliance was
placed on the decision of the Hon’ble Apex Court in the
case of Central Council for Research in Ayurvedic
Sciences & Another Vs. Bikartan Das & Others, Civil
Appeal No.3339 of 2023 as well as in the case of Ujjal
Mandal Vs. State of West Bengal & Others, WPA
No.9253 of 2015, disposed of on 27.07.2022.
In the case of Central Council for Research in
Ayurvedic Sciences, Hon’ble Apex Court in para-51 of
the said judgment has held as follows:
51. The second cardinal principle of exercise of
extraordinary jurisdiction under Article 226 of the
Constitution is that in a given case, even if some action
or order challenged in the writ petition is found to be
illegal and invalid, the High Court while exercising its
extraordinary jurisdiction thereunder can refuse to upset
it with a view to doing substantial justice between the
Page 39 of 50
// 40 //parties. Article 226 of the Constitution grants an
extraordinary remedy, which is essentially
discretionary, although founded on legal injury. It is
perfectly open for the writ court, exercising this flexible
power to pass such orders as public interest dictates &
equity projects. The legal formulations cannot be
enforced divorced from the realities of the fact situation
of the case. While administering law, it is to be tempered
with equity and if the equitable situation demands after
setting right the legal formulations, not to take it to the
logical end, the High Court would be failing in its duty if
it does not notice equitable consideration and mould the
final order in exercise of its extraordinary jurisdiction.
Any other approach would render the High Court a
normal court of appeal which it is not.
In the case of Ujjal Mandal, High Court of
Calcutta in para-26,42 & 43 of the said judgment has
held as follows:
26.Part III of the Constitution of India provides for the
Fundamental Rights, which the citizens enjoy. Article
19 (1)(g) which is an integral part of Part III of the
Constitution of India, inter alia, gives a guarantee and
constitutional mandate to a citizen to carry on and
thereby to ensure any occupation. Such being a
valuable Fundamental Right guaranteed under the
constitution could not be taken away by the
respondents State authorities without following the
established procedure of law. Slightest illegality,
unfairness, mala fide and arbitrary exercise of its
authority by the State should be construed to be as an
intolerable Act on the part of the State, if it infringes a
fundamental right of a citizen. The primary duty of a
constitutional court exercising power and jurisdiction
under article 226 of the Constitution of India is to
correct any error or illegality or mala fide and any
arbitrary act committed by the state authority and in
such regard it can be safely be said that, the
constitutional court does so in exercise of its
overwhelming plenary powers. This court is also not
unmindful as to the proposition that, such plenary
power of a constitutional court in exercise of itsPage 40 of 50
// 41 //jurisdiction under Article 226 of the Constitution of
India must be exercised judiciously, reasonably and of
course within the four corners of law and equity.
42. The reliefs granted by a constitutional court in
exercise of its high prerogative writ jurisdiction under
Article 226 of the constitution is equitable in nature.
The writ court shall exercise such equitable jurisdiction
judiciously, to afford complete justice to the parties.
When a valuable constitutional right or a legal right
alleged to be infringed by a citizen before a
constitutional court alleging any arbitrary, illegal or
wrongful act of an Article 12 authority or illegal,
wrongful or arbitrary exercise of any discretion by an
Article 12 authority, the writ court with its plenary
jurisdiction and power in exercise of its equitable
jurisdiction under Article 226 of the of the Constitution
of India intervenes.
43. Under Article 226 of the Constitution of India, writ
remedy is an equitable remedy and discretionary. Writ
Court exercises equity jurisdiction. Though scope of
power of Writ Court to undertake judicial review of
administrative actions is very wide, its exercise is
subjected to self imposed restraint. It will be exercised
only in furtherance of manifest justice and not merely
on the making out of a legal point. It must be exercised
with great caution and only in furtherance of public
interest to set right grave illegality and manifest
injustice. It is equally true that, writ court may refuse
to grant relief in a case where justice and larger public
interest require denial of such relief as compared to
grievance of an individual, even assuming there is
breach of natural justice/statutory prescription and
decision is arbitrary.
9. Mr. T.K. Satapathy, learned counsel appearing for
Opp. Party No.4-Commission on the other contended
that UGC Act being a Central Act, it has got precedence
over State Regulation and State Act. In the notification
issued by the Commission under Annexure-4,
qualification has been prescribed as against the post of
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Asst. Professor and as reflected in para 4.5-(b) of
Annexure-11, State has decided to follow the UGC
guideline. Therefore, while issuing the impugned
advertisement under Annexure-1, the qualification
prescribed by the Commission under Annexure-4 should
have been prescribed as the qualification for the post of
Lecturer.
9.1. It is also contended that post of Lecturer for which
the advertisement in question had been issued has
already been re-designated as Asst. Professor(Stage-1)
vide Resolution issued by the Government under
Annexure-3 series. It is forcefully contended that the
qualification prescribed by the Board under Annexure-1
is not the qualification so prescribed by the Commission
in its notification under Annexure-4.
9.2. Learned counsel appearing for the UGC placing
reliance on the notification issued by the Commission
on 24.12.1998 contended that as provided under para-3
of the said notification, the minimum requirement for
the post of Lecturer is a good academic record, 55% of
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the marks at the Master’s level and qualifying in the
National Eligible Test, or an accredited test. It would be
optional for the University to exempt Ph.D holders from
NET or to acquire NET, in their case, either as a
desirable or essential qualification for appointment as
Lecturers in the University Departments and Colleges. It
is accordingly contended that since issuance of the
notification on 24.12.1998, the practice for recruitment
of a Lecturer is required to be made in terms of the
qualification prescribed by the Commission and the said
qualification was also reiterated in the notification
issued under Annexure-4.
10. Mr. B. Mohanty, learned Addl. Govt. Advocate
placing reliance on the affidavit filed by the Department
contended that since the qualification prescribed by
UGC under Annexure-4 has not yet been accepted by
the State, with issuance of any resolution, the
qualification so prescribed by UGC under Annexure-4
can not be made applicable for selection to the post of
Lecturer for which the Board has issued the
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advertisement under Annexure-1. Stand taken in para-
10 of the affidavit reads as follows :
10. That, in view of the above, the true spirit and
intent of Clause-4.5 of Resolution dated 31.12.1999 is
that one has to satisfy the qualifications mentioned in
the said clause to avail the U.G.C Scale of pay. Since
in the Universities and Government Colleges U.G.C
Scale of pay to fresh recruits is extended after
satisfying the required period of service, the
qualifications stipulated in the said clause is only
applicable to Teaching Staffs of Universities and
Government Colleges. Since U.G.C Scale of pay is not
extended to the Teaching Staffs of Non-Government
Aided Colleges those who entered into the direct
payment of Grant-in-Aid fold after the cut-off date i.e.
1.4.1989, the said clause is not applicable to the fresh
recruits after the cut-off date 01.04.1989 in the non-
Govt. Aided Colleges. As the new recruits of Non-
Government Aided Colleges are not entitled for U.G.C
Scale of Pay, as such, the clause-4.5 is not applicable
to Teaching Staffs of Non-Government Aided Colleges.
IN view of that, there is no reference to Teaching Staffs
of Non-Government Aided Colleges in Clause-4.5 of the
Resolution dated 31.12.1999.
11. I have heard Mr. S. Swain, learned counsel
appearing for the Petitioner, Mr. B. Mohanty, learned
Addl. Govt. Advocate appearing on behalf of Opp. Party
Nos.1 & 2, Mr. Sameer Ku. Das, learned counsel
appearing on behalf of Opp. Party No.3, Mr. B. Routray,
learned Sr. Counsel along with Mr. S.D. Routray,
learned counsel appearing on behalf some of Intervenor-
Petitioners, Mr. L. Mohanty, learned counsel appearing
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on behalf of Intervenor-Petitioners and Mr. T.K.
Satapathy, learned counsel appearing on behalf of Opp.
Party No.4. With due exchange of pleadings, the matter
was heard at the stage of admission and disposed of by
the present order.
12. Having heard learned counsel appearing for the
parties and considering the submission made, this
Court finds that the advertisement under Annxure-1
was issued by the Board for recruitment to the post of
Lecturers in different discipline in Non-Government
Aided Colleges of Odisha. The qualification for the post
in various discipline for recruitment to the post of
Lecturer as prescribed vide Para-4 is Master’s Degree
with at least 55% mark or its equivalent.
12.1. As found from the resolution issued by the
Higher Education Department on 04.04.2016 under
Annexure-3 series, post of Lecturer was re-designated as
Asst. Professor (stage-1). It is further found from the
notification issued by the Commission on 18.07.2018
under Annexure-4, the minimum qualification for
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// 46 //
appointment of Teachers in Universities and Colleges is
Master Degree with 55% of mark along with qualification
of NET and/or PH.D. The qualifications prescribed by
the Commission under Annexure-4 as found has been
followed by the Odisha Public Service Commission while
issuing advertisement for recruitment to the post of
Lecturers in different disciplines of Orissa Education
Service (College Branch) under Annexures-6 & 7.
12.2. It is also found that subsequent to the
resolution issued under Annexure-A/3 on 25.07.1989
while issuing the resolution dt.31.12.1999 under
Annexure-11, the prescribed qualification for
recruitment to the post of Lecturer is Master’s Degree
with 55% mark and qualification of NET and/or PH.D.
As further found from Para 4.5 (b) of the resolution
issued under Annexure-11, State Government has
accepted to implement the guideline issued by the
Commission with regard to the minimum qualification
for appointment of teachers in Universities and Colleges.
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// 47 //
12.3. In view of the resolution issued under
Annexure-11 on 31.12.1999 and the qualification
prescribed for recruitment to the post of Lecturer being
Master Degree with NET qualification and/or PH.D, the
qualification prescribed in the impugned advertisement
dt.11.09.2023 under Annexure-1, basing on Annexure-
A/3, as per the considered view of this Court is not the
prescribed qualification for recruitment to the post of
Lecturer. This Court is unable to accept the contention
raised by the learned counsel appearing for the Board
that Annexure-11 only deals with the revision of pay
scale and it has no applicability with regard to the
qualification prescribed for the post of Lecturer, in view
of the provisions contained under Para-4.5 (b) & (c) of
the Resolution issued under Annexure-11.
12.4. Since the post of Lecturer has already been
re-designated as Asst. Professor (stage-1) vide
Resolution dt.04.04.2016 under Annexure-3 series, and
as per the subsequent Resolution issued by the
Department on 31.12.1999 under Annexure-11, the
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// 48 //
prescribed qualification for the post of Lecturer is not
the qualification prescribed in the impugned
advertisement, as per the considered view of this Court,
the process of selection initiated by the Board with the
qualification so prescribed is not legal and justified.
12.5. However, considering the fact that the
selection and appointment in all other disciplines have
been made basing on Annexure-1 advertisement, this
Court on the ground of equity and placing reliance on
the decisions of the Hon’ble Apex Court in the case of
Central Council for Research in Ayurvedic Sciences
as well as in the case of Ujjal Mandal is inclined to
allow the Board to complete the selection process as
against the post of Lecturer in Physics. However, this
cannot be treated as a precedent and the Board is
required to follow the qualification prescribed in
Annexure-11 coupled with the notification issued by the
Commission under Annexure-4 for recruitment to the
post of Lecturer/Asst. Professor (Stage-1).
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// 49 //
12.6. Since the process of selection which is the
subject matter of dispute in W.P.(C ) Nos.8115 and 8155
of 2024 has not yet been completed and the
qualification prescribed in the impugned advertisement
in those Writ Petition is not in consonance with the
qualification reflected in Annexure-11 and the
notification issued by the Commission under Annexure-
4, this Court is inclined to allow the prayer in W.P.(C )
Nos.8115 and 8155 of 2024. While allowing both the
Writ Petitions, this Court is inclined to quash the
advertisement issued by the Board vide Advertisement
No.04 of 2024, which is the subject matter of dispute in
W.P.(C ) Nos.8115 and 8155 of 2024. This Court grants
liberty to the Commission to issue a fresh advertisement
by prescribing the qualification as reflected in
Annexure-11 read with Annexure-4 notification issued
by the Commission.
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// 50 //
All these three (3) Writ Petitions are accordingly
disposed of with the aforesaid observation and direction.
Photocopy of the judgment be placed in the
connected cases.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the13th November, 2024/sangita
Signature Not Verified
Digitally Signed
Signed by: SANGITA PATRA
Reason: authentication of order
Location: high court of orissa, cuttack
Date: 13-Nov-2024 18:35:27
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