Dutta Shukla v. State of Chhattisgarh

Judgment

1 . 3 . o f C h h a t t i s g a r h : T h e S t a t e T h r o u g h T h e C h h a t t i s g a r h : E d u c a t i o n : D K S D i s t t - R a i p u r C G S e c r e t a r y D e p a r t m e n t B h a v a n , R a i p u r G o v t . t o t h e o f H i g h e r o f S e r v i c e C o m m i s s i o n : T h e S e c r e t a r y . S e r v i c e C o m m i s s i o n P u b l i c : h r o u g h P u b l i c S h a n k a r N a g a r R o a d , R a i p u r C G G r a n t s C o m m i s s i o n T h e S e c r e U n i v e r s i t y T h r o u g h : U n i v e r s i t y G r a n m B a h a d u r S h a h Z a f a r M a r g N e w D e l h i C o m m i s s i o n W R I T O F T H E P E T I T I O N U N D E R . C O N S T I T U T I G N ( x 1 s i A R T I C L E O F 2 2 6 I N D I A ‘. |!pmswi»..' HIGH COURT OF CHHATTISGARH : BILASPUR WritPetition (S) No.

2711 of 2009 Petitioners Dr. Ajay'Kumar Sinha 86 others Versus Respondents The State of Chhattisgarh 8s others Writ Petition fS) No. 2876 of 2009 Petitioner Dr. Praveen Kumar Versus Respondents State Public Service Commission & another Writ Petition (S) No. 2886 of 2009 Petitioners Dr. Navin Upadhyay & others Versus Respondents State of Chhattisgarh 8s others Writ Petition (S) No. 2895 of_2009 Petitioner Dr. Balbhadra Prasad Dewangan Versus Respondents The State of Chhattisgarh 85 others Writ Petjtion_(S) No^290Lof2009 Petitioners Dr. Ramesh Kumar Mishra 8s others Respondents The State of Chhattisgarh & others Versus Writ PetitionlS) No^2992_of 2009 Petitioner Himmat Singh Bais Versus Respondents State of Chhattisgarh 85 another Wnt Petkion {S] No._3406^20Q9 Petitioner Sanjay Mishra Versus Respondents State of Chhattisgarh 8s others Writ Petkion fS) No.

3948 of 2009 Petitioner Sushila Yadav Versus Respondents State of Chhattisgarh SE another Writ Petition (S) No. 4164 of 2009 Petitioners Amitabh Mishra 8s others Versus Respondents State of Chhattisgarh 85 others ; W:rit Petition (SLNo. 4314 of 2009 Petitioners Girish Chandra Mishra & another Respondents Versus Chhattisgarh Public Service Commission SE others ^ Writ_Petitipn_(S)_No. 6879 pf 2009 Petitioners Dr. Krishna Pratap Pandey 6s another Versus Respondents State of Chhattisgarh & others Petitioner

Writ_Petition (S) No, 6910 of 2009 Smt. Shushma Shastri Versus Respondents State of Chhattisgarh & others Writ Petition fS) No. 6943 of 2009 Petitioner Versus Dr. (Mrs.) Mrinalini Karmokar Respondents State of Chhattisgarh 8s others Petitioners Wdt_Petition IS)_No. 6960 of 2009 Saiyad Shabir AIi 85 another Versus Respondents State F>ublic Service Commission 8s another Writ Petition_(SLNo._7Q48_of2009 Petitioner Anupam Prasad Versus Respondents State of Chhattisgarh & others Petitioner Writ Petition fS) No. 43 of2010 Raj Kumar Tripathi Versus Respondents State of Chhattisgarh & others Petitioner Writ_Petition 1S) J^p^ 2QQ_ofL2(llQ Dr. Manish Kumar Sao Versus Respondents State of Chhattisgarh 8s others Petitioners Writ Petition (SJ No._639_of_2_0_10 Dr. Pyarelal Adile & others Versus Respondents State of Chhattisgarh & others Petitioner Writ Petition (S) No. 893 of2010 Dinesh Kumar Makhija Versus Respondents Public Service Commission & another Writ Petition fS) No.^393 of 2010 Petitioner Sutikshan Yadav Versus Respondents State of Chhattisgarh & another WritPetition_[S}No.2Q25 of 2010 Petitioner Rakesh Kumar Giri Versus Respondents State of Chhattisgarh 85 others Writ Petition fS) No. 2631 of2Q10 Petitioner Dr. Dinesh Uthra Versus Respondents Chhattisgarh State Public Service Commission & another WritJ^tition_[SJ No. 274 l_of 2010 Petitioner Manish Tuli Versus Respondents The State of Chhattisgarh &. others WntJ'etitionlSl. ,278 l_Qf 201 Q Petitioner Manish Upadhyay Versus Respondents State of Chhattisgarh 8s others Wnt Petition IS] No,_ 2782_of 201 Q Petitioner Manish Upadhyay Versus Respondents State of Chhattisgarh & others Writ Petition fS) No. 3478 of2010 Petitioner Dinu Rain Sahu Versus Respondents State Public Service Coramission 8s another Petitioner Writ Petition (S) No. 3719 of 2010 Atul Kumar Sharma Versus Respondents The State of Chhattisgarh 8s others Writ Petition (S) No. 4145 of 2010 Petitioner Smt. Rashmi Sao Versus Respondents State of Chhattisgarh & others Petitioner Writ P_etition (S]_No^424 of 2010 Dr. Rameshwar Singh Sahu Versus Respondents State Public Service Commission & another Writ Petition (S) No. 4952 of 2010 Petitioner Dr. Pankaj Mishra Versus Respondents The State of Chhattisgarh 8s others Petitioner Writ Petition (SLNo^_5396 of 2010 Naresh Kumar Dubey Versus Respondents State of Chhattisgarh 8s others Petitioner WritJ'etition (SJ No, 5743 of 2010 Dr. Sunanda Thawait Versus Respondents Public Service Commission & another Petitioners WritPetition (SLNo^.5830 oL2010 Dr. Pranjal Pathak & others Versus Respondents State of Chhattisgarh &, others Petitioner Writ Petition (S]_No_5944 of_20l0 Dr. Manish Tripathi Versus Respondents The State of Chhattisgarh & others Writ Petition (S) No. 6215 of 2010 Petitioner Neeraj Khare Versus Respondents State of Chhattisgarh & others Wnt Petition fS) No. 6357 of2010 Petitioner Smt. Swayam Sidhha Jha Versus Respondents The State of Chhattisgarh & others Writ Petition_(SU(o._6379_of2Q10 Petitioner Dr. Suryakant Mishra Versus Respondents The State of Chhattisgarh 8s others Wnt Petition fS) No. 6704 of 2010 Petitioner Dr.(Smt.) Sarfaraj Khan Versus Respondents State of Chhattisgarh 8s others WnLPetitionJSLNo, 6734 of 2010 Petitioner Dr. Pankaj Singh Versus Respondents State of Chhattisgarh & others Writ Petitipn fS]_No. 6937 of 2010 Petitioner Jeetendra Dutta Shukla , Versus Respondents The State of Chhattisgarh 8s others Petitioner Writ Petitipn (SLNo. 7263 of 2010 Dr. Savitri Agrawal Versus Respondents F'ublic Service Commission 8s another Petitioner Writ Petition (S},No. 266 of 2011 Dr. Rajesh Gouraha Versus Respondents State of Chhattisgarh SE another And Writ Petition fS) No. 3046 of 2011 Petitioner Rambabu Gupta Versus Respondents Public Service Commission & another DB: Hon'ble Dr. I. M. Quddusi & Hon'ble Mr. N. K. Agarwal, JJ Shri A. K. Prasad, Shri R. S. Patel, Shri Manoj Paranjpe, Shri Vikrani Dudt, Shri Vaibhav A. Goverdhan, Shri Arvind Kumar Dubey, Shri Jitendra Pali, Shri Mateen Siddiqui, Shri Varun Sharma, Shri Santosh Kumar Tiwari, Shri Raj Kun-iar Pali, Shri Pawan Keshwerwani, Shri Chandresh Shrivastava, Shri K. R. Nair, Shri Rahul Tamaskar, Shri Rajeev Shrivastava, Shri Malay Shrivastava, Shri Pankaj Shrivastava, Shri Pawan Shrivastava, Shri Pratik Sharma, Ms Sunita Jain, Shri Ravi Ranjan Sinha, Shri Shashank Thakur, Shri Amrito Das, Shri F. S. Khare, Shri Ranjeet Khare, Shri S. K. Bajpai, Shri K. A. Ansari, Senior Advocate with Ms Meera Ansari, Shri A. S. Ansari, Shri Avinash K. Mishra, Shri Akhilesh Mishra, Shri Rakesh Kumar Dubey, Shri Anurag Dayal Shrivastava, Shri Rakesh Kumar Dubey, Shri Anand Vemia and Shri Ali Asgar, Advocates for the pebitioners. Shri Yashwant Singh Thakur, Deputy Advocate General respondents/State Qf Chhattisgarh. Shri Y. C. Sharma, Shri Vivek Rathore, Shri C. K. Sahu,Shri S. Khan, Shri Sunil Sharma, Shri Sanjeev Verma, Shri Ashutosh Singh Kachwaha, Shri Sanjay K. Agarwal, Shri Sudeep Agarwal and Shri B. D. Guru, Advocates for the respondent/Public Service Commission. Shri Sachin Singh Rajput, Advocate for the respondent/University Grants Commission, JUDGMENTa^ORDER (Passed on this 2.^/Gay ofMarch, 2012) Per Dr. I. M. Quddusi, J. The aforementioned petitions viz. Writ Petition (S) Nos. 2711, 2876, -^ 2886, 2895, 2901, 2992, 3406, 3948, 4164, 4314, 6879, 6910, 6943, 6960 & 7048 of 2009, 43, 200,639,893,2393, 2625,2631, 2741, 2781, 2782, 3478, 3719, 4145, 4424, 4952, 5396, 5743, 5830, 5944, 6215, 6357, 6379, 6704, 6734, 6937 & 7263 of2010, 266 and 3046 of 2011 involve common question of facts and law, therefore, these petitions are being disposed 6f by this common order. The grievance of the petitioners in this batch of writ petitions is against advertisement No. 01/2009/Examination/dated

15.05.2009, issued for filling up vacant posts of Assistant Professors in various subjects, under the Higher Education Department, State of Chhattisgarh, wherein the date of publication was 20.05.2009 and last date for submission of application form was 22.06.2009. The eligibility criteria was that the candidates should have possessed National Eligibility Test (NET) or State Level Eligibility'Test (SLET) certificate or having M. Phil or Ph.D. Degree. The upper age limit was fDced as 37 years for general candidates and up to 45 years for reserved category candidates. It has been specified that a written test followed by an interview will be the c\ mode of selection. It has been submitted by the petitioners that though the selection is to be made under the guidelines of the University Grants Commission (UGC) but the age limit fixed by the F'ublic Service Coniinission and the requirement of written exaraination for selecdon are not in accordance with the guidelines of the University Grants Commission.

3. Further, in the Gazette notification published by the erstwhile State of Madhya Pradesh as well as the State of Chhattisgarh, the age limit for appointment of Assistant Professors on contract basis has -^ been fixed as 21 to 51 years. The Public Service Commission of various States have not fixed any upper age limit for the selection of Lecturers/Professors, only mentioned superannuadon which is 62 years as per the UGC norms.

4. In the aforesaid advertisement relaxation in the upper age limit has been given to Shiksha Karmis which is up to maximum of 45 years. However, in case of Assistant Professors who were working on contract basis they have not been given any relaxation in the age. As per the UGC regulations the mode of selection for the post of Assistant Professor through interview conducted a Board/Committee as specified in the UGC notification named as Selection Committees recommended by the UGC and since the UGC has fixed the eligibility criteria to be NET/SLET/M. Phil or Ph.D. degree and selection through interview, therefore, the other State Public Senrice Commissions have selected Lecturers/ Assistant Professors on the basis of interview only but in the impugned advertiseinent there is a provision for taking written test.

5. The impugned advertis'ement suffers with glaring mistake because the upper age limit has been fixed as 37 years for general y candidates and no age relaxation has been given to the Assistant Professors who ai-e working on contract basis since last about 17 - 18-years. The recruitment is also being made by the PSC after a period of about 18 years, therefore, the relaxation in the upper age limit ought to have been given to the petitioners. The mode of selection by written examination is also against the norms of the UGC. The facts, in brief, necessary for disposal of this batch of writ petitions are that the petitioners are having Ph.D. and M. Phil degree and some of thera are having NET/SLET certificates. Many petitioners had been working on the post of Assistant Professors on contract basis for years. The State of Madhya Pradesh had published a Gazette notification No. F-l-36-2000-Thirtyeight-l, dated 4.7.2000 in respect of appointment ofAssistant Professors on contract basis under the Madhya Pradesh Ucch Shiksha Samvida Seva (Niyukti Tatha Seva Shirte) Niyam, 2000 according to which the age limit for the appointment was prescribed as 21 years to 58 years. The State of Chhattisgarh has also published a Gazette Notification No. 73/ll/02/U.Shi./38 dated 9th July, 2002, published on 26.7.2002 under Chhattisgarh Ucch Shiksha Seva Niyam, 2002 for appointment of Assistant Professors, Sports Officer and Librarian on contract basis wherein vide Rule 7 the age limit was prescribed as 21 years to 51 years. The Commissioner, Higher Education Department has published various notifications for contract Appointment of Assistant Professors since the year 2005 to 2009 wherein the maximum age limit was prescribed as 51 years.

7. Further, in the impugned advertisement vide column No. 4.1.6 the Shiksha Karmis who are working in various schools have been given relaxation up to 45 years. Siniilarly, woman candidates have been given age relaxation for 10 years and other reserved categoiy candidates have been given age relaxation up to 45 years. However, no age relaxation has been prescribed for the Assistant Professors who are working on contract basis since last about 18 - 19 years.

8. In the erstwhile State of Madhya Pradesh the Public Service Commission had recruited the Assistant Professors on regular basis in the year 1990 and thereafter no regular appointments have been made for the last about 18 years.

9. In the advertisement for appointment on contract basis the upper age limit was fixed as 51 years, however, for regular appointment the upper age liinit is fixed as 37 years, which is against the UGC norms. Although, the eligibility criteria for appointment on contract basis as well as on regular basis is one and the same but the benefit of marks for higher qualification and having experience is not given to the Assistant Professors who had been working on contract basis and most of thein have crossed the upper age limit of 37 years. In the notifications for appointment of Assistant Professors of other States like Jharkhan, Rajasthan and Uttar Pradesh no upper age limit is prescribed. In the impugned advertisement vide para 19 the mode of selections is prescribed as written examination followed by an interview. However, the written examination is against the UGC norms.

10. In some of the writ petitions the petitioners have challenged the vires of fiAation of age limit (including lower and upper age limit) for recruitment, to the post of Assistant Professor vide impugned advertisement by virtue of Rule 8(1) read with Schedule -III of the Chhattisgarh Educational Service (Collegiate Branch) Recruitment 10 ^^ Rules, 1990, whereby the age limit for the same is fixed in between 21 and 32 years. The challenge is on the grdund that no person can fulfill the requisite eligibility criteria upon attaining the age of 21 years and therefore the same is unreasonable.

11. Further, in some of the writ petitions the petitioners have challenged Rule 11 of the Chhattisgarh Educational Service (Collegiate Branch) Recruitment Rules 1990 repugnant, inconsistent, contrary and violative of the University Grants Commission Regulations on Minimum Qualifications appointment and Career Advancement of Lecturers, Readers and Professors in the Universities and Colleges. The UGC Regulations being made by the Union of India in exercise of powers under Entiy 66 of the List I of the VII Schedule of Constitution of India would hold the field for appointment and recruitment process of teachers in colleges. The impugned Rule 11 which prescribes for a selection examination for direct recruitment of Assistant Professors in the Colleges is in violation of the UGC Regulations as the UGC has not prescribed any selection examination for recruitment on teaching posts.

12. It was the further case of the petitioners that the UGC has framed regulations under Section 26 of the University Grants Commission Act, 1956 which is captioned as University Grants Commission (Minimum qualification Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations, 2000. The UGC in exercise of powers conferred under Section 26 read with Section 14 of the Act 1956 made amendment in the aforesaid Regulations of 2000 and made (Second Amendment) Regulations 2006. The State has framed Chhattisgarh 11 Higher Education Service Recruitment Rules, 2002 for regulations appointraent of Lecturers/Teachers. In impugned advertisement the rainimuni qualification is mentioned as per Rules

2006. The amendments made in the Rules 2006 on 1.6.2009 have not been followed.

13. In some of the petitions the petitioners have also challenged the order No. 199/09/2010/Exam Confidential, dated 5.10.2010 whereby the successful candidates in the examination held on

29.11.2009 and 30.11.2009 for the post of Assistant Professor (Higher Education Department) were called for interview.

14. We have heard learned counsel appearing for the respective parties and perused the records.

15. Having heard learned counsel appearing for the parties and having perused the records following issues emerge for our consideration in this batch of writ petitions. Firstly, when as per the advertisenaent the eligibility criteria is that the candidate should have possessed National Eligibility Test (NET) or State Level Eligibility Test (SLET) certificate or having M. Phill or Ph.D. Degree, prescribing the mode of selection as "written test' followed by an 'interview' would be against the UGC norms and whether the suitability of the candidate should have been assessed only on the basis of viva voce/interview. Secondly, whether the age limit fixed by the PSC are against the guidelines of the UGC ? Thirdly, whether the candidates are entitled to age relaxation up to the age of 51 years'in view of the Gazette Notification date 9th July, 2002 publishing the Chhattisgarh Ucch Shiksha Seva Niyam, 2002 ? Fourthly, whether the petitioners, who had been working as contract Assistant Professors, are entitled to age relaxation akin to 12 \ Shiksha Karmis. Fifthly, whether fixing upper age limit is ultra to Rule 8 (1) and 11 read with Schedule -III of Chhattisgarh Educational Service (Collegiate Branch) Recruitment Rules, 1990 and the University Grants Commission Regulations on Minimum Qualifications for appointment and Career Advancement of Lecturers, Reader and Professors in the Universities and Colleges.

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17. The State of Madhya Pradesh, Higher Education Department vide Notification No. F-l-36-2000-Thirtyeight-l dated 4th July, 2000 has published the Madhya Pradesh Higher Education Contract Service (Appointment and Service Conditions) Rules, 2000, wherein according to Rule 6 Schedule -II Column (4) the minimum and masdmum age for appointment on the post of Assistant Professor on contract basis is prescribed as 21 and 58 years, on the date of the advertisement.

18. The State of Chhattisgarh, Education Department vide Notification No. F 73/ll/02/H.Ed./38 dated 9a July, 2002 has published the Chhattisgarh Higher Education Service Rules, 2002 appointinent on various posts on contract basis wherein Rule 7 provides for minimum and maximum age as 21 and 51 years. Rule 14 5 provides for the manner of appointment that every appointment shall be in accordance with the merit assessed by the Screening Coinmittee. The amendment to these Rules was made vide Notification No. F-1-2/2004/38 dated 29th April, 2005, which provides that according to Rule 5(3) for preparing merit list there shall be maxiniuin of 100 marks and the criteria shall be (a) for passing NET or SLET examination - 25 merit marks; (b) for marks obtained at degree level there shall be - 25 merit marks; (c) for marks obtained at post graduate level there shall be - 30 merit marks; (d) for M. Phil degree - 05 merit marks; (e) for Ph.D. degree - 10 merit marks and (f) for teaching experience - 05 merit marks. Afterwards, by way of Notification No. F 1-39/2006/38 dated 8A August 2006 subsequent amendment has been raade in Rule 5(3) which reads as under : "1. For clause (a) of sub rule (3) of rule 5 the following shall be substituted, namely :- (1) For post -graduation degree holders having passed NET or SET exarnination - 25 merit marks. (2) For post-graduates with M. Phil - 25 merit marks. (3) For post-graduates with M. Phil and with NET or SET qualification - 30 merit marks. (4) For post-graduates with Ph.D. - 35 merit marks. (5) For post-graduates with Ph.D. and with NET/SET qualification -35 merit marks Or For post-graduates with M. Phil and Ph. D. either with or without NET/SET qualification - 40 Merit marks. "

19. According to Clause (3) of Schedule - 1, appended to The Chhattisgarh Educational Service (Collegiate Branch) Recruitment Rules, 1990 the post ofAssistant Professors and formerly recruited Lecturers are one and the same. The recruitment to the post of Assistant Professors in Government colleges are governed by these Rules. Rule 2 (a) defines 'Appointing Authority' means Government (b) de&nes 'Commission' means the Chhattisgarh 15 Public Service Commission and (c) defines 'Examination' means a competitive examination for recruitment to the service held under Rule 11 of the Rules. Rule 11 (1) and (2) of the Rules, 1990 are quoted below : "11. Direct Recruitnient by Competitive Examination. - (1) Direct recruitcnent shall be made by competitive examination to the posts of Assistant Professor, Librarian and Sports Officer and the merit list shall be made for the appointnient on the basis of total marks obtained in written examination and interview. The competitive exainination for recruitment to the service (2) shall be held at such intervals as the Government may in consultation with the Commission from time to time determine. The examination shall be conducted by the Commission in accordance with such orders as the Government may from time to tirae issue in consultation with the Commission.

20. Rule 6 of the Rules, 1990 provides for method of recruitment - by direct recruitn'ient by competitive examination/selection and the method of recruitment to be adopted for the purpose of filling any particular vacancies in the service as may be required to be filled, subject to the provisions of the rules, shall be determined on each occasion by the Government in consultation with the Comniission.

21. Rule 8 ofthe Rules, 1990 provides for the Conditions of eligibility of direct recruits according to which as per Column (4) and (5) the minimum and upper age limit for the post of Assistant Professor is 21 and 32 years; and as per Column (6) the Educational qualification prescribed is Post Graduate degree in relevant subject with at! least 55% marks. However, by way of amendment, published, by Nodfication No. F 1-103/2004/38 dated 15al September 2005, it has been provided that the candidate should 16 ha.ve cleared the eligibility test (NET) for Asstt. Professor conducted by the U.G.C./CSIR or SLET conducted by Chhattisgarh State.

22. As per Rule 10 of the Rules, 1990 the decision of the Commission as to the eligibility or otherwise of a candidate for admission to the examination/selection shall be final and no candidate to whom a certificate of admission has not been issued by the Commission shall be admitted to the examination or interviewed by the Commission.

23. The UGC Notification on Revision of Pay Scales, minimum Qualification for Appointments of Teachers in Universities, Colleges 8s Other measures for the Maintenance of Standards, 1998 was issued which is applicable to every University established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the concerned University under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and every institution Deemed to be a University under Section 3 of the Act.

24. The raain contention of the petitioners is that the UGC has not prescribed any upper age limit in respect of appointment on the post of Lecturers/Assistant Professors and there is no provision for written exaraination for appointment on the post of Assistant Professor. As the recruitinent process is begun after a lapse of about 18 years therefore there should be no upper age limit for the candidatfes. In regard tp the contention of the petitioners about 'Age Relaxation"

25. learned counsel appearing for the State subraits that the petitioners are seeking a relief which is not provided in the Rules 1990 or any 17 administrative instructions therefore no writ of mandamus can be issued contrary to the Rules. The powei' to relax the age is of discretionary nature. The concession cannot be claimed as a matter of right as the petitioners are seeking relaxation of age as is granted to Shiksha Karmis. The circular dated 2.6.2004 has been issued by the State Government under Article 162 and 246 of Constitution of India providing age relaxation to Shiksha Karmis in Government Services up to the number of years of services put in as Shiksha Kanni up to a maxiinuni of 45 years. The Government can issue administrative instructions supplementing the rules but the same should not be inconsistent with the rules. The circular dated 2.6.2004 is applicable in the light of Rule 24 of the Rules, 1990 which grants power to the State Government to relax the norms. The Shiksha Karmis are employees of panchayats. There scope of career advancement is very limited in spite of rendering regular service to the Government. Therefore, by policy decision it has been decided to grant them age relaxation in State Govemment Services. Whereas, the petitioners having perforined their duties on contract basis prior to May, 2011 on the basis of as and when need arise, are not entitled to get the similar benefit as has been extended to Shiksha Karmis, working on regular basis. As the contract of the petitioners was over, they do not enjoy any right to claim parity with other class of Government Servants.

26. Learned counsel for the State further submitted that since the UGC regulatiohs do not inake any mention of minimum or maxiinum age limit for appointment to the post of Lecturer/Assistant Professors in Universities and Colleges nor the methodology of selection of candidates, therefore there is no violation of any of the provisions of 18 the UGC regulations. The UGC Regulations pertain to only the minimum qualifications. The rules framed for appointment on contract basis is a stop gap arrangement prescribing for upper age liinit and even there is a provision for appointment of retired persons on contract basis which cannot be applied in the case of regular appointment.

27. In regard to competitive written examination, learned counsel appearing for the State subniitted that Entiy 66 of the Union List provides for co-ordination and determination of standards in higher education but it does not say about modes of appointment in the higher education or about terms and conditions of appointment. The statement of object and reasons of the University Grants Commission Act 1956 provides that the UGC can advice and recorainend the Central Govemment and the Universities the measures necessaiy for the reform and improvement of University education. Section 26 (e) provides for making regulation for defining the qualification that should ordinarily be required of any person to be appointed to the teaching staff of the university. The Act, 1956 nowhere provides for making regulations by the UGC providing for the inode of selection of any person to be appointed to the teaching staff of the university or its affiliated college. Clause 5.0.0 of the UGC Regulations 2009 provides for constitution of Selection Committees and specified selection procedure. Clause 5.1.4 provides for appointment of Assistant Professors in College that the State PS& must invite three subject experts and in the instant case, three subject experts were the members of the interview coinmittee. The UGC regulation is silent about written exaniinations rather it does not impose any bar in conducting written exaraination for 19 screening of candidates. The provision for written test appointment of teachers in college does not violate Entry 66 of List I or the UGC Regulations and the same is neither irrational nor arbitrary.

28. In regard to ultra vires it has been submitted by leamed counsel appearing for the State that an Act or Rule or a provision of an Act or Rule is declared to be ultra vires if it violates any of the Article of the Consdt-ition; any of the provisions of the parent Act, beyond the legislative competence of the authority legislating it; and it is irrational to an extent that it amounts to total absurdity or it is totally unworkable or not possible to be implemented. No such grounds have been raised in any of the writ petitions challenging the vires of the provisions of Rule 8 (1) (e) and Rule 11 and Schedule III of the Rules, 1990. The State under Article309 of the Constitution can frame rules for appointment of its eraployees. The UGC Act 1956 does not provide for framing of regulation for procedure of appointment for college teachers and selection procedure.

29. Learned counsel appearing for the respondents vehemently opposes the writ petitions filed by the unsuccessful candidates submitting the candidates who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. To substantiate their argument on this point learned counsel relied on various decisions of HonTsle Supreme Court, wherein it has been held that the candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in 20 \,- ^ interview could not turn around and challenge that the said provision of minimuin marks was improper, said challenge is liable to be dismissed on the ground of estoppel.

30. In Dr Preeti Shrivastava and another Vs. State of M.P. and others (1999) 7 SCC 120, wherein the consideratibn before the Constitution Bench, hearing the matters was "whether apart from providing reservation for admission to the postgraduate courses in Engineering and Medicine for special category candidates, it is open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special categoiy candidates seeking admission under the reserved category"; Hon'ble Supreme Court has held as under: "35. The legislative competence of legislatures of the States to make laws under Article 246 is the Pariiament and the regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List-II gave to the States an exclusive power to legislate on "education including universities subject to the provisions of Entries 63, 64, 65 and 66 of List-I and Entry 25 of List- III." Entiy 11 of List-II was deleted and Entry 25 of List-III was amended with effect Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows: from 3.1.1976 as a result of "Entry 25, List educatfon, medical'education and universities, subject to including technical Education, III: >the provisions of entries 63, 64, 65 and 66 of List vocational and technical training oflabour." I: Entry 25 is subject, inter alia, to Entiy 66 of List-I. Entry 66 of List-I is as follows:- 21 ^ "Entry 66, List I: Co-ordination and determination of standards in institutions for high.er education or research and scientific and technical institutions." Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entiy 66 of List-I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also co-ordination standards. A State has, therefore, to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of Therefore, while prescribing the criteria for admission to the insdtutions for higher education including higher medical the Union Government. education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List-I. Secondly, while considering the cases on the subject it is also necessaiy to remember from 1977 education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254." "36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct irapact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-I. For example, a State may, fpr admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 This would be consistent with promoting higher of List-I. standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an 22 L ^ adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are: (1) The caliber of the teaching staff; (2) A proper syllabus designed to achieve a high level of education in the given span of time; (3) The student-teacher ratio; (4) The ratio between the students and the hospital beds available to each student; (5) The caliber of the students admitted to the institution; (6) Equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) Adequate accommodation for attached hospital; and the college and the (8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged. "41. In the State ofAndhra Pradesh & Ors. v. Lavu Narendranath 8s Ors. ete. ([1971] 3 SCR 699), this Court considered the validity of a test held by the State Government for admission to medical colleges in the State of Andhra Pradesh. The Andhra University Act, 1926 prescribed the minimum qualification of passing HSC, PUC, I.S.C. etc. examinations for entry into a higher course of study. The Act, however, did not make it incumbent upon the Govemment to inake their selection on the basis of the marks obtained by the candidates at these qualifying examinations. Since the seats for the MBBS course were limited, the Government, which ran the medical colleges, had a right to make a selection out of the large number of candidates who had passed the HSC, PUC or other prescribed examinations. Fpr this purpose the State Government prescribed an entrance test of its own and also prescribed a minimuifa 50% of marks at the qualiiying examination of HSC, ISC, PUC etc. for eligibility to appear at the entrance test. The Court said fhat merely because the Government supplemented the eligibility rules by a written test in the subjects with which the candidates were already familiar, there was nothing unfair in the test prescribed. Nor did the test militate against the powers of 23 ^ Parliament under Entry 66 of List-I. Entiy 66 List-I is not relatable to a screening test prescribed by the Government or by a university for selection of students from out of a large number applying for admission to a particular course of study." "45. In Dr. Ambesh Kumar v. Principal, L.L.R.M. Medical College, Meerut and Ors. ([1986] Supp. SCC 543), a State-order prescribed 55% as minimum marks for admission to post-graduate medical courses. The Court considered the question whether theState can to those laid down by the impose in addition qualifications Medical Council of India and the Regulations framed by the Central Governinent. The Court that any additional or further qualifications which the State may lay down would not be contrary to Entiy 66 of List-I since additional qualifications are not in conflict with the Central Regulations but are designed to further the objective of the Central Regulation which is to promote proper standards. The Court said, (at page 552) "The State Government by laying down the eligibility qualification, namely, the obtaining of certain mininium marks in the M.B.B.S. examination by fhe candidates has not in any way encroached upon the Regulations made under the Indian Medical Council Act nor does it infringe the central power provided in the Entry 66 of List-I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification." None of these judgments lays down that any reduction in the eligibility criteria would not impinge on the standards covered by of List-I. All these judgments dealt with additional Entry 66 qualifications? qualifications in addition to what was prescribed by the Central Regulations or Statutes."

31. In Union of India Vs. Anil Chanana and another (2008) 4 SCC 175 an advertisement was issued on 24.6.2002 for Garhwal Region the selection and appointment of the Physical Education Teachers (L.T.Grade). The requisite qualification indicated in the advertisement was B.P.E. or Graduate with Diploma in Physical 24 Education. The unsuccessful candidates in the interview challenged the selected candidates on various grounds. One of the grounds was that the advertisement and selection were not based in accordance with the Rules called U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983. The writ petitions filed by the unsuccessful candidates were dismissed by the Single Judge. On appeal, the order of the Single Judge was reversed and the appeals were allowed. On further appeals, Hon'ble Supreme Court dismissed the appeals of unsuccessful candidates holding In a recent judgment in the case of Marripati Nagaraja vs. The Govemment of Andhra Pradesh, (2007) 11 SCR 506 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process. We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the leamed Single Judge." Hon'ble Supreme Court in paragraphs 12,14 and 15 held as under: "12. The next question that arises for consideration is as to the Government can, by way of administrative whether instructions, issue instructions not fill up the gaps and supplement the rules and inconsistent with the rules already framed, if rules are silent on any particular point?

14. .A Constitution Bench of this Court in the case of Sant Ram Sharma vs. State of Rajasthan, AIR 1967 SC 1910, has pointed out at p.1914 SC that the Govemment cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Governmenty 25 can fill up the gaps and supplement instructions not inconsistent with the rules already framed. the rules and issue

15. The aforesaid ruling has been reiterated in paragraph 9 of the judgment by a three Judge Bench of this Court in the case ofUnion oflndia vs. K. P. Joseph, (1973) 1 SCC 194, as under: "Generally speaking, an administrative Qrder confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan and Another, AIR 1967 SC 1910, supersede statutory rules by adrainistrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already fraraed and these instructions will govern the conditions of service." that although Government cannot

32. In view of the foregoing discussions we are of the opinion that the State can impose qualifications in addition to those laid down by the U.G.C. Regulations. In this regard we are fortified with the decisions of Hon'ble Supreme Court that any additional or further qualifications which the State may lay down would not be contrary to Entry 66 of List-I since additional qualifications are not conflict with the Central Regulations but are designed to further the objective of the Central Regulation which is to promote proper standards. The State Government by laying down the eligibility qualification, namely, prescribing for written test followed by interview has not in any way encroached upon the U.G.C. Reguladons nor does it infringe the central power provided in the Entiy 66 of List-I of the Seventh Schedule to the Constitution. The Rules merely provides an additional eligibility qualification for undergoing.'written test' for selection ofAssistant Professors as has / been required in the impugned advertisement. / l^ 26

33. Therefore, we do not find any fault in prescribing for "written exaraination' followed by an 'interview, as has been advertised by the PSC for selection of Assistant Professors in the Higher Education Department.

34. Article 14 of the Constitution of India provides equality before law - "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Article 16 of the Constitution of India provides equality of opportunity in matters of public employment. Article 16 (1) provides that "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State."

35. On perusal of the record it is clear that the minimum educational qualification for appointment on the post of contract Assistant Professor is (a) graduation with 50%; (b) post graduation with 55%; NET or SET and in addition to that (a) Ph.D. (b) M.Phil (c) teaching experience in graduation/post graduation classes. The minimum educational qualification for appointment on the post of Assistant Professor on regular basis is (a) post graduation with 55%; (b) NET or SET and in addition to that (a) Ph.D. (b) M.Phil. Thus, it is evident that the ininimum qualification for appointment on contract basis as well as on regular basis for the post of Assistant Professor in Higher Education Department is more or less the same. However, the minimum educational qualification for appointment on the post of Shiksha Karmi Grade -III is Class 12th pass, for Shiksh^ Karmi Grade -II is Graduation and for Shiksha Karmi Grade-I is Post Graduation with B.Ed./D.Ed.

36. In the impugned advertiseraent as per clause 4.1.6 Shiksha Karrais have been extended the benefit of age relaxation in accordance with <», 27 theNotification No. F 1-2/2002/1/3 dated 2nd June, 2004, issued by the General Administration Department, which prescribes that in Government Services on various posts Shiksha Karmis would be provided with the benefit of relaxation in upper age limit up to the period for which they have served on their respecfive posts, up to a maximum of 45 years.

37. A coraparison ininimum qualification required appointment on the post of contract Assistant Professor and Shiksha Karmi Grade-I shows that the minimum qualificadon required for appointment on the post of contract Assistant Professor is higher than is required for the post of Shiksha Karmi Grade -I and on the other hand the minimum required qualification for appointment on the post of contract as well as regular Assistant Professor is more or l' ss the sanie. The contract Assistant Professors vrere recruitei to serve in the Higher Education Department, whereas Shil^sha Karmis have been recruited to serve in the schools comes under various Panchayats of the State of Chhatdsgarh and in fact they are not Government servants but the employees of the Panchayats.

38. On 20.4.2011 during the course of hearing it was observed that in Government services, relaxation in age has been made but for certain posts under cei ;ain policy, therefore, learned Deputy Advocate Geiieral appearii ig for the State was granted time to show in couniter affidavit or ir the supplementary affidavit about the nexus in giving relaxation in certain posts like Shiksha Karrais and not in the post i.e. contract Teachers/Assistant Professors and what is the object in the same sought to be achieved. It was also directed that the relevant records in this regard shall also be 28 produced on the next date of hearing. Thereafter, the matter was listed on various dates i.e. 9.5.2011, 30.6.2011, 26.7.2011,

1.8.2011, 2.8.2011, 7.9.2011,

12.9.2011 & 13.12.2011 and arguments were heard but no response has come from the side of the State in regard to the above direction. Virtually, the State has failed to reply despite adequate opportunities granted in this regard to explain as to what was the nexus in giving age relaxation to certain class of posts and scs to what is the object sought to be achieved in giving relaxation to Shiksha Karmis, who are not even the employees of the State Government and are employees of Panchayats and their minimuin qualification is less than the qualification of contract Teachers/Assistant Professors.

39. Therefore, this Court is of the opinion that not providing age relaxation to the petitioners, who had been working on the post of contract Teachers/Assistant Professors and at the same time providing age relaxation to Shiksha Karniis, who even do not belong to Govt. service but belong to Panchayat seryice and the minimum requisite qualification prescribed for them is lesser than contract Teachers/Assistant Professors, ainounts to discrimination and it is violative of Articles 14 and 16 of the Constitution of India. Looking to the facts situation, as noticed above, wherein Shiksha Karmis have been granted relaxation in age for serving in the schools run by the Panchayats but the petitioners, who had been rendering their services, in the schools come under the Higher Education Department, have been ignored, we are of the opinion that the petitioners are entitled to get similar benefit in age relaxation akin to Shiksha Karmis, otherwise, it would amount to discrimination in an arbitrary manner. 29

40. This Court is conscious about the situation that the advertisement was published on 15.5.2009, the last date for submission of the application forms was 22.6.2009 and the examination was conducted on 29th November, 2009. Thereafter, the result was declared and interviews have been held. By way of interim order the petitioners were permitted to appear in the examination.

41. Therefore, we are of the opinion that at this juncture it would be just and proper to direct the respondents i.e. State Government and Public Service Commission to take interview of the petitioners granting thera age relaxation, akin to Shiksha Karmis and then to complete the selection and appointment process.

42. According to the legal maxim 'invito beneficium non datur' a benefit is not to be conferred upon one who is unwilling and no one can be compelled accept a benefit. Further, legal maxim 'vigilantibus, non dormientibus, aequitas subcenit' denotes that equity assists those who are vigilant and not those Who are sleeping. Likewise, there is a legal maxim currit tempus contra desides et sui juris contemptores' to the effect time runs against the slothful and those who slight their own rights. It is also a principle that a person, who under his coinfort and slumber does not choose to approach the court to get beneHt, should not get any benefit. Therefore, the persons who are not petitioners before us would not be entitled to get any benefit arising out of judgment.

43. Accordingly, we direct that the case of the petitioners only would be considered for relaxation of age in the light of the observations made above by the State Government and the State Government would inform the Public Service Commission about the decision 30 c}Ai taken by it. In turn, the Public Service Commission would take necessary steps in that regard after receiving the intimation from the State Government and thereafter, the Public Service Commission would be free to declare and publish the result of the selection, in accordance with law.

44. With the above observations and the direction all the writ petitions are partly allowed.

45. There shall be no order as to costs. Sd/- Dr. LM. Quddusi Judge Sd/- N. K. Agarwal Judge Thakur h»»»N