Dr.S.Arulmani v. The Secretary

4. Madurai Kamraj Manonmaniam Sundaranar University Teacher's Association (MUTA), rep. By its President, Registered Office at No.6 Kakka Thope, Madurai.5. Association of universityteachers Tamilnadurep by its General Secretary134 Ramlane , Nungambakkam, Chennai-34.R5 impleaded as party respondent vide order of Court dated 11.9.2007 made in M.P.No.2/2006 ... Respondents./ Respondents Prayer:- Writ Appeal Nos.585 and 1305 of 2006 filed against theOrder dated 10.03.2006 made in W.P.No.17630 of 2005W.P.NO.17630/05:- Writ Petition filed under Article 226 of theConstitution of India seeking for issue a nature of writ ofcertiorarified mandamus calling for the records of the 5threspondent pertaining to Ref. 31/2005 dated 21.04.2005, quash thesame and direct the 5th respondent to promote the petitioner asPrincipal and W.A.No.1322 of 2006 filed against the Order dated12.09.2006 in W.P.No.25433 of 2006 Writ Petition filed underArticle 226 of the Constitution of India seeking for issue a writ ofcertirarified mandamus calling for the records relating to (i)The Communication No.A-II/ASO-1/PRES.QLN/2004/1924 dated 23.11.2004of the 2nd respondent university and (ii) Communication dated3.7.2006 by the Letter No. MSU/CD/OA/Gen/2002 issued by the 3rdrespondent herein viz., the registrar, Manonmaniam SundaranarUniversity, Tirunelveli, pursuant to (iii) UGC Letter No. F. No. 3-1(2000) (PS) dated 5.12.2005 and (iv) UGC Letter No. F.3-1/2000 (PS)dated 12.10.2004 (v) D.O.No.F3-1/2000 (PS) dated 4.4.2000 moreparticularly. 3-1-0 and 3.5.0 of the above said notification andquash the same and consequently direct the respondents herein toapprove the appointment of teachers principals, professors andreaders as hitherto done before. For Appellant in Mr.Vijay Narayan, S.C., forW.A.No.585/06: M/s.M.Rathina AsokanFor Appellant in W.A.No.1305/06: Mr.K.Shakespere for K. VenkateswaranFor Appellant in Mr.A.L.Somayaji, S.C. Assisted by K. Shakespere for W.A.No.1322/06: M/s.K.S.Govinda Prasad. Mr.B.Ravi appearing forFor Respondents in Mr.R.Subramanian for R1W.A.No.585/06: Mr.G.Sankaran, Spl.G.P., Education for R2, R3 and R5. https://hcservices.ecourts.gov.in/hcservices/ Mr.C.K.Chandrasekaran for M/s. Row and Reddyfor R4 Mr.K.Venkateswaran for R6. Mr.B.Ravi appearing forFor Respondents in Mr.R.Subramanian for R1W.A.No.1305/06: Mr.G.Sankaran, Spl.G.P. Education for R2, R3 and R5. Mr.C.K.Chandrasekaran for M/s. Row and Reddy for R4.No appearance for R6For Respondents Mr.R.Krishnamoorthy, S.C., forW.A.No.1322/06: M/s.P.R.Gopinath, for R1. Mr.Kandavadivel Doraisamy for R2 Mr.C.K.Chandrasekaran for M/s Row and Reddy for R3 Mr.R.Subramanian for R4 Mr.D.Hariparanthaman, for R5.J U D G M E N TV.RAMASUBRAMANIAN,J.In exercise of the powers conferred by Clauses (e) and (g) ofsub section (1) of section 26 read with section 14 of the UniversityGrants Commission Act, 1956, the University Grants Commission framedRegulations known as, "University Grants Commission (minimumqualifications required for the appointment and career advancementof teachers in Universities and Institutions affiliated to it)Regulations, 2000". These Regulations (hereinafter referred to asU.G.C. Regulations) prescribed (i) the qualifications for directrecruitment to the posts of Principal (Professors Grade and ReadersGrade), Professor, Reader and Lecturer, (ii) career advancement tothe Lecturers and (iii) the constitution of Selection Committees forselection to these posts. 2. The U.G.C. Regulations were forwarded to the ViceChancellors of all the Universities and to the Education Secretariesof all State Governments in April, 2000. Since it came to thenotice of the Commission that some Universities were not followingthe procedure prescribed under the Regulations, for the constitutionof Selection Committees, the Commission sent a letter dated12.10.2004 to all Vice Chancellors and State Governments. Based onthese communications, the Syndicate of the University of Madraspassed a Resolution on 08.11.2004 to strictly adhere to the U.G.C.Regulations and issued a circular dated 23.11.2004 to all theaffiliated Colleges informing them of the same. 3. Similarly, the Manonmaniam Sundaranar University also issueda circular dated 03.07.2006 informing all affiliated Colleges that aSelection Committee as prescribed by U.G.C. Regulations, should beconstituted. https://hcservices.ecourts.gov.in/hcservices/

4. Challenging the aforesaid circular issued by the Universityof Madras dated 23.11.2004 and the circular of the ManonmaniamSundaranar University dated 03.07.2006 and also challengingparagraph No.3.1.0 and 3.5.0 of the U.G.C. Regulations (whichprescribe the constitution of Selection Committees for Lecturers andPrincipals in Private Colleges), the Association of Management ofPrivate Colleges, came up with a writ petition in W.P.No. 25433 of2006. 5. In the meantime, a person, by name, Dr.M.S.Arulmani,working as Reader and Head of the Department of Tamil in a Privateaided College, by name, Kamaraj College, Tuticorin, challenged hisnon selection to the post of Principal of the College, in a writpetition in W.P.No.17630/05. His challenge, among other things, wason the basis that the selection was made by a Committee notconstituted in accordance with the U.G.C. Regulations, 2000. 6. By an order dated 10.03.2006, the said writ petitionW.P.No.17630 of 2005 filed by Dr.M.S.Arulmani against his nonselection to the post of Principal, was allowed by a learned Judge,accepting his contention that the selection ought to have been madeonly by a Committee constituted in accordance with the U.G.C.Regulations, 2000. 7. As against the said order in W.P.No.17630 of 2005, theKamaraj College, Tuticorin, filed an appeal in W.A.No.585 of 2006.Similarly, the candidate selected for the post of Principal, byname, Dr.J.Mohanraj, (whose selection was set aside at the instanceof Dr.M.S.Arulmani) also filed an appeal in W.A.No.1305 of 2006. 8. In the meantime, the writ petition filed by the Associationof Managements of Private Colleges, W.P.No.25433 of 2006,challenging the validity of the U.G.C. Regulations, 2000 wasdismissed by another learned Judge, by an order dated 12.09.2006,following the ratio laid down in W.P.No.17630 of 2005 (in the caseof Dr.M.S.Arulmani). Therefore, the Association filed an appeal inW.A.No.1322 of 2006 against the order in W.P.No.25433 of 2006. 9. Since one writ appeal arises out of a challenge to theU.G.C. Regulations and the other two writ appeals arise out of achallenge to the selection to the post of Principal in a Privateaided College, in violation of the U.G.C. Regulations, all thethree writ appeals were taken up together for disposal.10. We have heard Mr.A.L.Somayaji, learned Senior Counselappearing for the Association of Managements of Private Colleges(appellant in W.A.No.1322 of 2006), Mr.Vijay Narayan, learned SeniorCounsel appearing for Kamaraj College, Tuticorin (appellant inW.A.No.585 of 2006), Mr.K.Shakespere, learned Counsel appearing forthe candidate selected for the post of Principal (appellant inW.A.No.1305 of 2006), Mr.R.Krishnamurthy, learned Senior Counselappearing for University Grants Commission, Mr.KandavadivelDoraisamy, learned counsel appearing for the Madras University,Mr.C.K.Chandrasekaran, learned counsel for Manonmaniam Sundaranar https://hcservices.ecourts.gov.in/hcservices/ University, Mr.B.Ravi, learned counsel for R-1 in W.A.Nos.585 and1305 of 2006, Mr.R.Subramanian, learned counsel appearing for theTeachers' Association (R4 in W.A.No.1322 of 2006), Mr.D.HariParanthaman, learned counsel for the Association of UniversityTeachers and Mr.G.Sankaran, learned Special Government Pleader(Education).11. Since the dispute raised in these writ appeals revolvearound the validity of only one particular portion of the U.G.C.Regulations, 2000, it is necessary to look into the source and thebroad framework of these Regulations, to understand their scope andreach. As stated earlier, these Regulations were issued by theCommission in exercise of the power conferred under Clauses (e) and(g) of sub section (1) of section 26 read with section 14 of theUniversity Grants Commission Act, 1956. Section 26(1)(e) and (g) ofU.G.C. Act, 1956, reads as follows:-26. Power to make regulations.-(1) The Commission may, by notification inthe Official Gazette, make regulations consistentwith this Act and the rules made thereunder.- (a) .......... (b)........... (c)........... (d)...........(e) defining the qualifications thatshould ordinarily be required of any personto be appointed to the teaching staff of theUniversity having regard to the branch ofeducation in which he is expected to giveinstructions; and(g) regulating the maintenance ofstandards and the co-ordination of work orfacilities in Universities."12. Since the Regulations under challenge were framed withreference to Clauses (e) and (g) of section 26(1), they werecompartmentalised, to cover three areas, viz., (a) thequalifications prescribed for direct recruitment to various posts,(b) career advancement and (c) the constitution of SelectionCommittees for appointments to various posts. While paragraphNo.1.0.0 deals with the qualifications, paragraph No.2.0.0 dealswith career advancement and paragraph No.3.0.0 deals with theconstitution of Selection Committees. 13. The objections of the appellants in these writ appeals,are not with reference to the educational qualifications prescribedunder paragraph No.1.0.0 of these Regulations nor to the careeradvancement prescribed under paragraph No.2.0.0. Their objection isonly with reference to the mandate for the constitution of SelectionCommittees, spelt out in paragraph No.3.0.0. Even here, the https://hcservices.ecourts.gov.in/hcservices/ challenge of the appellants, is not to the contents of paragraphNo.3.0.0 in entirety. Their challenge is restricted only to aportion of paragraph No.3.0.0, viz., paragraph No.3.1.0 (dealingwith the post of Lecturers in Colleges) and paragraph No.3.5.0(dealing with the post of Principal).14. The learned Senior Counsel appearing for the appellants inall these appeals, conceded the position that there cannot be achallenge to paragraph No.1.0.0 of these Regulations, since itprescribes the minimum educational qualifications for appointment tovarious posts and also since the prescription of qualifications,fell entirely within the purview of the U.G.C. under Section 26(1)(e)(g) of the U.G.C. Act, 1956. Therefore, the appellants confinedtheir challenge only to paragraph Nos.3.1.0 and 3.5.0 of the U.G.C.Regulations, which provide for the constitution of the SelectionCommittees as follows:-3.0.0 Selection Committees recommended by the U.G.C. 3.1.0. Lecturer in a Private College.1.Chairperson of the Governing Body of the Collegeor his/her nominee to be the Chairperson of theSelection Committee.2.The principal of the concerned College.3.One Senior teacher/Head of the Department (ofthe concerned subject) preferably having notless than 10 years of services as a teacher.4.Two nominees of the Vice Chancellor of theaffiliating University of whom one should be asubject expert.5.Two subject-experts not connected with thecollege to be nominated by the Chairperson ofthe governing body out of a panel of namesapproved by the Vice Chancellor. For Government Colleges, the State Public ServiceCommissions must invite three subject experts forwhich the State Public Service Commissions willinvolve the University in the selection. ThePrincipal and Head of the Department should benecessarily included in the Selection Committee. The quorum for the meeting should be five ofwhich at least two must be from out of the threesubject experts.3.5.0 For the Post of Principal1.Chairperson of the Governing Board as Chairperson.2.One member of the Governing Board to be nominated bythe Chairperson.3.Two Vice Chancellor's nominees, out of whom oneshould be an expert.4.Three experts consisting of the Principal of a https://hcservices.ecourts.gov.in/hcservices/ College, a Professor and an accomplished educationistnot below the rank of a professor (to be nominated bythe Governing Board) out of a panel of expertsapproved by the Vice Chancellor.At least four members, including two experts, shouldconstitute the quorum.The process of selection should involve thefollowing:-(a)Assessment of aptitude for teaching and research(b)Ability to communicate clearly and effectively(c)Ability to analyse and discuss.(d)Optional: Ability to communicate may be assessedby requiring the candidate to participate in agroup discussion or by exposure to a class roomsituation/ lecture, wherever it is possible.15. Though the aforesaid Regulations were notified in April,2000, it took four years for the University of Madras to pass aResolution in a meeting of the Syndicate on 08.11.2004 and the samewas communicated to all Colleges, by a letter dated 23.11.2004.Similarly, the response of the Manonmaniam Sundaranar University,was also very slow and they communicated this requirement only byletter dated 03.07.2006 to all the Colleges.16. But even before the Universities started acting on theseRegulations, the Government of Tamil Nadu had issued G.O.Ms.No.111,Higher Education (H-1) Department, dated 24.03.1999, directing allaided Colleges to constitute similar Committees for appointment tothe posts of Lecturers and Principals in aided Colleges. This wasdone by the Government of Tamil Nadu, while accepting therecommendations of the University Grants Commission, for revisingthe scales of pay of teachers in Government and aided Colleges witheffect from 01.01.1996. The revision of pay scales of Collegereachers, the minimum qualifications for appointment and othermeasures for the maintenance of standards, were notified by the UGC,by a U.G.C. Notification bearing No.F.3-1/94 (PS) dated 24-12-1998.In Appendix-V to the said notification, UGC issued guidelines forthe constitution of selection committees. Though it was only anotification of the UGC, the Government of Tamilnadu accepted thesame as part of the requirement for the implementation of therevised pay scales and hence issued G.O.Ms.No.111, dated 24.03.1999.In other words, at the time, when G.O.Ms.No.111 dated 24.03.1999 wasissued, the U.G.C. Regulations had not been issued, but a UGCnotification had come into force. Therefore, a challenge was made toG.O.Ms.No.111, dated 24.03.1999 in W.P.No.17042 of 1999 and thechallenge was upheld by a single Judge, by an order dated11.09.2001. It was held in the said judgment that the directionissued under the said Government Order for the constitution ofCommittees for selection of candidates for appointment as Lecturersand Principals in Private aided Colleges, was ultra vires theprovisions of the Tamil Nadu Private Colleges (Regulation) Act and https://hcservices.ecourts.gov.in/hcservices/ the Rules issued thereunder. But as stated earlier, U.G.C.Regulations, 2000, had not been issued at the time whenG.O.Ms.No.111, dated 24.03.1999 was issued. However the Regulationswere issued and notified during the pendency of the said writpetition, but the issue of the Regulations, was not brought to thenotice of the learned Judge. Therefore, the learned Judge held theGovernment order G.O.Ms.No.111 to be ultra vires the TamilnaduPrivate Colleges Act. It is perhaps on account of the said judgmentstriking down G.O.Ms.No.111, that the Universities took their owntime to implement the U.G.C. Regulations. 17. In the backdrop of the above facts, the challenge of theappellants, to the requirements of paragraph Nos. 3.1.0 and 3.5.0 ofthe U.G.C. Regulations, 2000, are as follows:-(a)that the direction to constitute Selection Committees, issued inthe impugned paragraphs of the U.G.C. Regulations, is beyond theLegislative competence of the University Grants Commission, in thelight of the clear dichotomy between the respective fieldsoccupied by Entry 66 of List I (Union List) and Entry 25 of ListIII (Concurrent List) and the Provisions of the Tamil Nadu PrivateColleges (Regulation) Act;(b)that the selection and appointment of Lecturers and Principals inPrivate aided Colleges in the State of Tamilnadu, has to be madeby a Committee known as, "College Committee", by virtue of theProvisions of Section 14 (1)(b) of the Tamil Nadu PrivateColleges (Regulation) Act, 1976 and that such a Committee has tobe constituted only in accordance with Section 11 of the said Actand hence, a direction to constitute a different Committee wouldbe an encroachment into an occupied field;(c)that since Tamil Nadu Private Colleges (Regulation) Act receivedthe assent of the President, it would prevail over the U.G.C.Regulations;(d)that in any case, the Regulations being a subordinate centralLegislation, cannot have overriding effect upon a superior StateLegislation (viz., an Act passed by the Legislature);(e)that the requirement to constitute a Committee as prescribed bythe Regulations, tends to interfere with the fundamental right ofthe Private Colleges guaranteed under Article 19(1)(g) of theConstitution of India; and(f)that at any rate, the impugned paragraphs of the Regulations,contain only a "recommendation" and not an enforceable mandate.Now let us deal with these objections, one after another.Legislative Competence and Occupied Field. 18. At the outset, the appellants contend that the impugnedparagraphs of the UGC Regulations, would not fall within the ambitof Entry 66 of List I, but would fall within that of Entry 25 ofList III and that therefore, it is nothing but an encroachment intoa field reserved for the State to legislate. The State has alreadymade a law, namely, the Tamil Nadu Private Colleges (Regulations)Act, 1976. Therefore, according to the appellants, the impugnedRegulations are ultra vires to the extent that they encroach into anoccupied territory. https://hcservices.ecourts.gov.in/hcservices/

19. To test the correctness of the said contention, it isnecessary to see the relevant Entries and the respective objects andreasons of the U.G.C. Act and Regulations vis-a-vis the Tamil NaduPrivate Colleges (Regulations) Act, 1976. Entry 66 of List I (UnionList) reads as follows:-"Co-ordination and determination ofstandards in institutions for higher educationor research and scientific and technicalinstitutions."Entry 25 of List III (Concurrent List) reads as follows:-"Education, including technical education,medical education and universities, subject tothe provisions of Entries 63, 64, 65 and 66 ofList I; vocational and technical training oflabour."The preamble to the University Grants Commission Act, 1956, reads asfollows:-"An Act to make provision for the co-ordination and determination of standards inUniversities and for that purpose, to establish aUniversity Grants Commission."Section 12 of the U.G.C. Act imposes a duty upon the Commission "totake, in consultation with the Universities or other bodiesconcerned, all such steps as it may think fit for the promotion andco-ordination of University education and for the determination andmaintenance of standards of teaching, examination and research inUniversities." Section 13 of the U.G.C. Act enables the Commissionto cause an inspection of any department of the University for thepurpose of ascertaining "its standards of teaching, examination andresearch". Section 26 of the Act empowers the Commission to makeRegulations, with regard to various matters that include thequalifications required of a person to be appointed as a teachingstaff and the maintenance of standards and co-ordination of work orfacilities in Universities. 20. Thus the entire scheme of University Grants CommissionAct, 1956, right from its preamble up to the provision relating toconferment of power to issue regulations, focuses attention on the"co-ordination and determination of standards in Universities", aphrase borrowed only from Entry 66 of List I of the Seventh Scheduleof the Constitution. 21. On the contrary, the statement of objects and reasons ofthe Tamil Nadu Private Colleges (Regulations) Act, 1976 and theScheme of the Act, focus attention on "regulation of privatecolleges and the conditions of service of teachers". The statementof objects and reasons of the Act, reads as follows:-"STATEMENT OF OBJECTS AND REASONS:-The Government of Tamil Nadu decided toregulate the conditions of service of teachersemployed in private colleges and to make the rulesrelating to managing bodies and payment of grantsto such colleges statutory. As the Legislature ofthe State of Tamil Nadu was not in session, the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Private Colleges (Regulation)Ordinance, 1975 was promulgated on the 21stNovember, 1975.2. The President issued a Proclamation on the31st January, 1976 under Article 256 of theConstitution, in relation to the State of TamilNadu, declaring inter alia that the powers of theLegislature of the State shall be exercisable byor under the authority of Parliament. Hence, byvirtue of the powers delegated to the Governor ofTamil Nadu by the President, the Tamil NaduPrivate Colleges (Regulation) Ordinance, 1976(Tamil Nadu Ordinance 11 of 1976) was promulgatedwith some modifications to make certain provisionsof the Ordinance inapplicable to minoritycolleges.3. It is proposed to replace this Ordinanceby a President's Act with additional provisions tothe effect that no private college shall beestablished without affiliation to a University,that the non-teaching staff of private collegeswould also come within the scope of the measureand that a University may make regulations,statutes and ordinances specifying thequalifications for appointment of teachers andother persons employed in private colleges.22. As seen from the above, the Tamil Nadu Act was enacted bythe President of India. Its legislative history was summed up by theSupreme Court in paragraph No.2 of the judgment in P.Kasilingam -vs-P.S.G. College of Technology and others [1995 Supp. (2) SCC 348], asfollows:-"On 31.01.1976 the President of India issued aProclamation under Article 356 of the Constitutionof India, in relation to the State of Tamil Nadu,declaring inter alia that the powers of theLegislature of the State shall be exercisable byor under the authority of Parliament. Parliamentunder Article 357(1)(a) of the Constitutionenacted the Tamil Nadu State Legislature(Delegation of Powers) Act, 1976 whereby itconferred on the President of India the powers ofthe Legislature of the State of Tamil Nadu to makelaws in relation to State of Tamil Nadu. Inexercise of the said powers the President of Indiaenacted the Act to provide for the regulation ofprivate colleges in the State of Tamil Nadu.Chapter II (Sections 3 to 10) makes provisions forestablishment, permission for establishment andmanagement of private colleges. In Chapter III(Sections 11 to 14) provision is made for collegecommittee and its constitution and functions.Chapter IV (Sections 15 to 24) deals with the https://hcservices.ecourts.gov.in/hcservices/ terms and conditions of service of teachers andother persons employed in private colleges.Chapter V (Sections 25 to 32) relates to controlof private colleges. Other provisions arecontained in Chapter VI (Accounts, Audit,Inspection and Furniture), Chapter VII (GeneralProvisions regarding Appeal and Revision), ChapterVIII (Penalties and Procedure) and Chapter IX(Miscellaneous)."23. The preamble of the Act states that it is an "Act toprovide for the regulation of private colleges in the State of TamilNadu". Section 11 of the Act requires every Private College (otherthan a minority College) to constitute a College Committee; Section14(1)(b) assigns the function of appointment of teachers, to theCollege Committee; Section 15 vests the University with the power tomake regulations specifying the qualifications; and Section 17 veststhe Government with the power to make rules (in consultation withthe University) regulating the number and conditions of service ofteachers employed in a Private College. These provisions areextracted as follows:-"11. Constitution of College Committee.-Every private college, not being aminority college, shall have a College Committeewhich shall include the following persons employedin the private college, namely:-(a) the Principal;(b) the senior-most Selection Grade Lectureror Reader;(c) one other Selection Grade Lecturer; and(d) the senior-most Superintendent:"14. Functions of the College Committee andresponsibility of educational agency under thisAct.- (1) Subject to the provisions of this Actand the rules made thereunder, the CollegeCommittee shall have the following functions,namely:-(a) to carry on the general administration ofthe private college excluding the properties andfunds of the private college;(b) to appoint teachers and other persons ofthe private college, fix their pay and allowancesand define their duties and the conditions oftheir service; and(c) to take disciplinary action againstteachers and other persons of the private college."15. Qualifications of teachers and other personsemployed in private colleges.- https://hcservices.ecourts.gov.in/hcservices/ (1) The University may make regulations,statutes or ordinances specifying thequalifications required for the appointment ofteachers employed in any private college.(2) The Government may make rules specifyingthe qualifications required for appointment to anypost, other than teachers, in any private college.17. Conditions of service, etc. of teachers andother persons employed in private colleges.-The Government may make rules in consultationwith the University regulating the number andconditions of service (including promotion, pay,allowances, leave pension, provident fund,insurance and age of retirement and rights asrespects disciplinary matters but excludingqualifications) of the teachers and other personsemployed in any private college. 24. Thus, the Tamil Nadu Act is primarily intended to regulate(i) the establishment of Private Colleges and (ii) the managementand administration of the affairs of the private colleges.Therefore, all the provisions of the Tamilnadu Act will have to beread, interpreted and understood only in the context in which theyhave been made and the purpose they seek to achieve. 25. If that is so, then the next question that arises forconsideration is as to whether the constitution of SelectionCommittees in a particular manner, is a matter that could be tracedto the "co-ordination and determination of standards" (relating toEntry 66 of List I) or to the "establishment and management ofeducational institutions" (relating to Entry 25 of List III). Thecontention of the appellants is that while the prescription ofqualifications for teachers, would fall within the ambit of "co-ordination and determination of standards", the constitution ofSelection Committees in a particular manner, has nothing to do with"co-ordination and determination of standards". 26. But we are unable to countenance such a contention. Thequalifications prescribed by the impugned Regulations, indicate onlythe bench mark or bottom line, viz., the eligibility criteria forselection. All candidates, who fulfil the eligibility criteria,cannot stake a claim for automatic appointment to any post.Candidates, who satisfy the eligibility criteria, can only lay aclaim for consideration for appointment and the purpose ofconstitution of a Selection Committee, is to enable the appointingauthority to select the best out of all those eligible forappointment. If selection of a candidate from among the list ofeligible persons, infringes the right of the management, then eventhe Tamil Nadu Act would not have prescribed the constitution of a"College Committee", to select candidates for appointment. As amatter of fact, even the Tamil Nadu Private Colleges (Regulation)Rules lay emphasis on "merit and ability", when it deals with the https://hcservices.ecourts.gov.in/hcservices/ selection of a candidate for promotion to teaching posts. Rule 11(4)of the said Rules, makes it clear that promotions in respect ofteaching staff shall be made on grounds of merit and ability,seniority being considered only where merit and ability areapproximately equal. Therefore, a fair, equitable and transparentprocess of selection, with a view to have the best of talents, isdirectly correlated to "co-ordination and maintenance of standards"and hence the constitution of a Selection Committee, for the purposeof selecting the best material, is certainly intended to achievehigher standards in educational institutions. 27. It is seen from paragraph Nos.3.1.0 and 3.5.0 of theimpugned Regulations that the intention of the UGC, is to pack theSelection Committee, with as many academicians and subject expertsas possible, so that the best of talents is selected forappointment. A comparative chart between the composition of theSelection Committee under the impugned Regulations and thecomposition of the College Committee under the Tamil Nadu Act, wouldamply demonstrate this point. This chart is given below:---------------------------------------------------------------------Selection CommitteeCollege Committee underunder U.G.C. Regulations.the Tamil Nadu Act.--------------------------------------------------------------------For LecturerFor all posts.Chairperson of the GoverningNominees of EducationalBody of the College or hisAgency (Number notnominee.Prescribed).Principal of the College.Principal of the College.One Senior Teacher/Head ofOne Senior most Selectionthe Department (of the Grade Lecturer (or Seniorconcerned subject) with tenmost Lecturer if there is noyears experience.Selection Grade Lecturer).Two nominees of Vice ChancellorOne Selection Grade Lecturerof whom one should be a (or Lecturer if there is nosubject expert.Selection Grade Lecturer).Two subject experts not The Senior most connected with the College,Superintendent (non teachingnominated by the ChairpersonStaff)of the Governing Body fromout of a Panel approved byVice Chancellor.One member nominated byUniversity.For PrincipalChairperson of the Governing https://hcservices.ecourts.gov.in/hcservices/ Body of the College.One member of the GoverningBody of the College.Two Vice Chancellor's nomineesof whom one should be an expert.Three experts consisting of thePrincipal of a College, a Professorand an accomplished Educationist,nominated by the Governing Bodyfrom out of a Panel approved bythe Vice Chancellor.--------------------------------------------------------------------28. Thus it is seen that the Selection Committee contemplatedby the impugned Regulations, is a committee of academicians andsubject experts, in contra distinction to the College Committeewhich is packed more with non academics. It is relevant to pointout here that the constitution of the College Committee prescribedby section 11 of the Tamil Nadu Act, is actually different from theone prescribed by Rule 8 of the Rules. Section 11 of the Act ismerely an inclusive provision, which lists out four persons whoshall be included in the College Committee, viz.,(a) the Principal ;(b) the senior-most Selection Grade Lecturer or Reader;(c) one other Selection Grade Lecturer; and(d) the senior-most Superintendent:But, Rule 8(3) of the Tamil Nadu Private Colleges (Regulation)Rules, goes further and mandates that the College Committee shallconsist of -(a) the representatives of the Educational Agency;(b) the Principal of the College;(c) two senior-most Professors; and(d) one member nominated by the University.Thus, there appears to be an apparent conflict even between theTamilnadu Act and the Rules, though we are not now concerned withthe same in the present appeals. Therefore, the Selection Committeeprescribed by the impugned UGC Regulations, commands morecredibility and it would certainly ensure co-ordination,determination and maintenance of high academic standards in highereducational institutions. Consequently, the impugned regulationssquarely fall within Entry 66 of List I and hence, it is within thelegislative competence of the University Grants Commission. 29. The Supreme court considered in extenso, as to whatconnotes "coordination" and what constitutes "standard of education"in Bharati Vidyapeeth and others -vs- State of Maharashtra andanother [(2004) 11 Supreme Court Cases 755] and held as follows"-"11. The expression "coordination" has beenexplained by this Court in more than one decision. https://hcservices.ecourts.gov.in/hcservices/ Firstly, in Gujarat University -vs- KrishnaRanganath Mudholkar (AIR 1963 SC 703 : 1963 Supp(1) SCR 112) and recently in State of T.N. -vs-Adhiyaman Educational & Research Institute [(19954 SCC 104]. In these two decisions it is statedthat the expression "coordination" used in Entry66 of List I of the Seventh Schedule to theConstitution does not merely mean evaluation. Itmeans harmonisation with a view to forge a uniformpattern for a concerted action according to acertain design, scheme or plan of development.It, therefore, includes action not only forremoval of disparities in standards but also forpreventing the occurrence of such disparities. Itwill include power to do all things, which arenecessary to prevent what would make"coordination" either impossible or difficult.This power is absolute and unconditional and inthe absence of any valid compelling reasons, itmust be given its full effect according to itsplain and express intention.12. So far as standard of education is concerned,this Court in Preeti Srivastava (Dr.) -vs- Stateof M.P. [(1999) 7 SCC 120 has explained that theprocess of admission falls within the scope ofdetermining standards and held as follows:-"36. It would not be correct to say that thenorms for admission have no connection with thestandard of education, or that the rules foradmission are covered only by Entry 25 of ListIII. Norms of admission can have a direct impacton the standards of admission. Of course, therecan be rules for admission which are consistentwith or do not affect adversely the standards ofeducation prescribed by the Union in exercise ofpowers under Entry 66 of List I. For example, aState may, for admission to the postgraduatemedical course, lay down qualifications inaddition to those prescribed under Entry 66 ofList I. This would be consistent with promotinghigher standards for admission to the highereducational courses. But any lowering of thenorms laid down can and does have an adverseeffect on the standards of education in theinstitutes of higher education."13. After specifically adverting to the decisionsin State of M.P. -vs- Nivedita Jain [(1981) 4 SCC296: (1982) 1 SCR 759] and Ajay Kumar Singh -vs-State of Bihar [(1994) 4 SCC 401] this Courtdisagreed with the proposition that standards comeinto picture after admissions are made and held asfollows:" It is the result of a sum total of all theinputs-calibre of students, calibre of teachers, https://hcservices.ecourts.gov.in/hcservices/ teaching facilities, hospital facilities, standardof examinations etc. That will guarantee properstandards at the stage of exit. We, therefore,disagree with the reasoning and conclusion in AjaiKumar Singh -vs- State of Bihar [(1994) 4 SCC401] and Post Graduate Institute of MedicalEducation and Research -vs- K.L.Narasinhan [(1997)6 SCC 283 : 1997 SCC (L&S) 1449] ."52. Mr.Salve, learned counsel appearing for theMedical Council of India has, therefore, rightlysubmitted that under the Indian Medical CouncilAct of 1956 the Indian Medical Council isempowered to prescribe, inter alia, standards ofpostgraduate medical education. In the exerciseof its powers under Section 20 read with Section33 the Indian Medical Council has framedregulations which govern postgraduate medicaleducation. These regulations, therefore, arebinding and the States cannot, in the exercise ofpower under Entry 25 of List III, make rules andregulations which are in conflict with oradversely impinge upon the regulations framed bythe Medical Council of India for postgraduatemedical education. Since the standards laid downare in the exercise of the power conferred underEntry 66 of List I, the exercise of that power isexclusively within the domain of the UnionGovernment. The power of the States under Entry25 of List III is subject to Entry 66 of List I.Thus it was clarified by the Supreme court, beyond any pale of doubtthat all inputs including the "calibre of teachers" which wouldguarantee proper standards at the stage of exit, would come withinthe purview of maintenance of standards. Therefore, the direction toconstitute appropriate Selection Committees for the selection andappointment of teachers, aimed at enhancing the quality and calibreof teachers selected for appointment would certainly fall within theambit of "coordination and maintenance of standards in highereducational institutions". 30. In University of Delhi -vs- Raj Singh and others {1994 Supp(3) Supreme Court Cases 516}, the Supreme Court held that the dutycast upon the University Grants Commission under Section 12 of theU.G.C. Act, to take all possible steps for the determination andmaintenance of standards of teaching, examination and research andthe powers conferred upon the U.G.C. for the said purpose, are wideranging. The said case arose out of a set of regulations issued bythe University Grants Commission in the year 1991, prescribing thequalifications for appointment of teaching staff of a University,which was ignored by the University of Delhi, while makingappointments. When an aspiring candidate, who was not called forinterview, challenged the action of the University of Delhi, theUniversity contended that the Regulations were beyond the competenceof the U.G.C. and that they were only directory and not mandatory.Since Delhi University traced its establishment to Entry 63 of List https://hcservices.ecourts.gov.in/hcservices/ I of the VII Schedule to the Constitution and the Delhi UniversityAct was an "existing law" for the purposes of the Constitution, itwas contended that the Regulations issued in exercise of the powersconferred by the U.G.C. Act, which could be traced to Entry 66,could not prevail over the Delhi University Act. Dealing with thosecontentions, the Supreme Court held in the said case as follows:-"19. The Delhi University Act was on thestatute book when the UGC Act was enacted byParliament under Entry 66 of List I. It must beassumed that Parliament was aware of theprovisions of the Delhi University Act when itenacted the UGC Act, particularly because thepower to enact legislation concerning the DelhiUniversity lay with Parliament under Entry 63 ofList I....20. The ambit of Entry 66 has already beenthe subject of the decisions of this Court in thecases of the Gujarat University -vs- KrishnaRanganath Mudholkar (1963 Supp. 1 SCR 112: AIR1963 SC 703) and the Osmania University Teachers'Assn. -vs- State of A.P. {2 (1987) 4 SCC 671 :(1987) 3 SCR 949. The UGC Act is enacted underthe provisions of Entry 66 to carry out theobjective thereof. Its short title, in fact,reproduces the words of Entry 66. The principalfunction of the UGC is set out in the openingwords of Section 12, thus:"It shall be the general duty of theCommission to take ... all such steps asit may think fit for the promotion andcoordination of University education andfor the determination and maintenance ofstandards of teaching, examination andresearch in Universities...." It is very important to note that a duty is castupon the Commission to take "all such steps as itmay think fit ... for the determination andmaintenance of standards of teaching". These arevery wide-ranging powers. Such powers, in ourview, would comprehend the power to require thosewho possess the educational qualificationsrequired for holding the post of lecturer inUniversities and colleges to appear for a writtentest, the passing of which would establish thatthey possess the minimal proficiency for holdingsuch post. The need for such test is demonstratedby the reports of the commissions and committeesof educationists referred to above which take noteof the disparities in the standards of educationin the various Universities in the country. It ispatent that the holder of a postgraduate degree https://hcservices.ecourts.gov.in/hcservices/ from one University is not necessarily of the samestandard as the holder of the same postgraduatedegree from another University. That is therationale of the test prescribed by the saidRegulations. It falls squarely within the scopeof Entry 66 and the UGC Act inasmuch as it isintended to co-ordinate standards and the UGC isarmed with the power to take all such steps as itmay think fit in this behalf. For performing itsgeneral duty and its other functions under the UGCAct, the UGC is invested with the powers specifiedin the various clauses of Section 12. Theseinclude the power to recommend to a University themeasures necessary for the improvement ofUniversity education and to advise in respect ofthe action to be taken for the purpose ofimplementing such recommendation [clause (d)]. TheUGC is also invested with the power to performsuch other functions as may be prescribed or asmay be deemed necessary by it for advancing thecause of higher education in India or as may beincidental or conducive to the discharge of suchfunctions [clause (j)]. These two clauses are alsowide enough to empower the UGC to frame the saidRegulations...."Therefore, the phrase "co-ordination and determination ofstandards" cannot be given a restrictive meaning, so as to includewithin its purview, only "the power to prescribe qualifications" andnot "the power to prescribe the constitution of a SelectionCommittee".31. Once it is found that the impugned Regulations could betraced only to the law making power under Entry 66 of List I andthat the constitution of the Selection Committee prescribed by theRegulations, is wholly with a view to maintain standards ininstitutions, then the question of repugnancy and the question ofencroachment into occupied field does not arise. A situationconverse to the one on hand was considered by the Supreme court inState of Andhra Pradesh -vs- K.Purushotham Reddy [(2003) 9 SupremeCourt Cases 564], and the Apex court held as follows:- "19. The conflict in legislative competenceof Parliament and the State Legislatures havingregard to Article 246 of the Constitution of Indiamust be viewed in the light of the decisions ofthis Court which in no uncertain terms state thateach entry has to be interpreted in a broadmanner. Both the parliamentary legislation asalso the State legislation must be considered insuch a manner so as to uphold both of them andonly in a case where it is found that both cannotcoexist, the State Act may be declared ultravires. Clause (1) of Article 246 of theConstitution of India does not provide for the https://hcservices.ecourts.gov.in/hcservices/ competence of Parliament or the State Legislaturesas is ordinarily understood but merely providesfor the respective legislative fields.Furthermore, the courts should proceed to construea statute with a view to uphold itsconstitutionality.25. In R.Chitralekha -vs- State of Mysore (AIR1964 SC 1823: {1964} 6 SCR 368), Subba Rao, J.categorically held that the question as regardsthe impact of Entry 66 List I and Entry 25 ListIII must be determined by reading the Central Actas well as the State Act conjointly. A State lawproviding for such standards having regard toEntry 66 of List I would be struck down asunconstitutional only in the event the same isfound so heavy or devastating so as to wipe out orappreciably abridge the Central field and nototherwise. Once the powers and functions of theCouncil are found to be subject to the guidelinesissued by UGC and the perspective plan prepared byit would be subject to its approval, the questionof standard of education set up by the State Actcannot be said to be leading to wipe out orappreciably abridge the Central field."Therefore the real endeavour of the Court in such circumstancesshould be to save both the legislations and to see if they could co-exist. In the present case, the "College Committee" prescribed bythe Tamil Nadu Private Colleges (Regulation) Act is different fromthe "Selection Committee" prescribed by the impugned U.G.C.Regulations. Both of them cannot co-exist and hence, the State Act(relating to Entry 25 of List III) has necessarily to give way forthe impugned U.G.C. Regulations (relating to Entry 66 of List I). Presidential Assent to the State Act32. As a rider to the first contention that the impugnedRegulations also fall under Entry 25 in the Concurrent List, thelearned counsel for the appellants contended that since the StateAct received the assent of the President (it was in fact aPresidential Enactment at the time when proclamation under Article356 was in force in the State), the State Act will prevail over theCentral Legislation, in view of Article 254(2) of the Constitution.But even if the first contention of the appellants that both fallunder Entry 25 is accepted, the rider to the same cannot beaccepted. The Tamil Nadu Act received the assent of the Presidenton 16.04.1976. But the impugned Regulations, is later in point oftime and of recent origin. Therefore, the State Act, despite havingreceived Presidential assent, cannot prevail over the CentralLegislation, of a later origin. This issue is now fairly wellsettled. In P T. Rishikesh and another -vs- Salma Begum (1995) 4SCC 718, the validity of Order XV Rule 5 of the Code of CivilProcedure, as amended by U.P. Civil Laws (Reforms and Amendment)Act, 1976, was challenged on the ground that it was inconsistent https://hcservices.ecourts.gov.in/hcservices/ with the C.P.C. Central (Amendment) Act, 104 of 1976 andconsequently, void under Article 254(1) of the Constitution. TheState Amendment in the said case actually received the assent of thePresident and hence, Clause (2) of Article 254 was pressed intoservice. Dealing with the scope of Clause (2) of Article 254, theSupreme Court held in paragraph No.15 and 21 of the said judgment,as follows:-"15. Clause (2) of Article 254 is anexception to clause (1). If law made by the StateLegislature is reserved for consideration andreceives assent of the President though the Statelaw is inconsistent with the Central Act, the lawmade by the Legislature of the State prevails overthe Central law and operates in that State asvalid law. If Parliament amends the law, afterthe amendment made by the State Legislature hasreceived the assent of the President, the earlieramendement made by the State Legislature, if foundinconsistent with the Central amended law, bothCentral law and the State law cannot coexistwithout colliding with each other. Repugnancythereby arises and to the extent of the repugnancythe State law becomes void under Article 254(1)unless the State Legislature again makes lawreserved for the consideration of the Presidentand receives the assent of the President....21. .... We may clarify at once that if theCentral law and the State law or a provision madeby the High Court occupy the same field andoperate in collision course, the State Act or theprovision made in the Order by a High Court beinginconsistent with or in other words beingincompatible with the Central Act, it becomes voidunless it is re-enacted, reserved forconsideration and receives the assent of thePresident after the Central Act was made byParliament, i.e. 10.09.1976."Therefore, the mere fact that the Tamil Nadu Act had received theassent of the President, is not sufficient to hold that it willprevail over the impugned U.G.C. Regulations, since the Regulationshave come to be issued much later.33. As a matter of fact, in Kaiser-I-Hind Private Ltd. andanother -vs- National Textile Corporation (Maharashtra North) Ltd.And others {(2002) 8 Supreme Court Cases 182}, a Constitution Benchof the Supreme Court went to the extent of holding that even if theState Act receives the assent of the President subsequent to aCentral Legislation, in respect of a matter falling in theConcurrent List, there must be indications to show that therepugnancy was specifically considered before the assent wasgranted. In the said case, the Supreme Court considered the effectof the Presidential assent to the Bombay Rents, Hotel and LodgingHouses Rates Control Act, 1947, on the parliamentary enactment,viz., the Public Premises (Eviction of Unauthorised Occupants) Act, https://hcservices.ecourts.gov.in/hcservices/

1971. By a majority, the Apex Court held (in paragraph No.65) thatArticle 254(2) of the Constitution contemplates both "reservationfor consideration of the President" and also the "assent" and thatpointed attention of the President is required to be drawn to therepugnancy between the earlier law made by Parliament and thecontemplated State Legislation and the reasons for having such lawdespite the enactment by Parliament. The Apex Court further heldthat there must be an express agreement of mind to what is proposedby the State and that it must be indicated that the "assent" is quaa particular law made by the Parliament. Therefore, the contentionthat the Presidential assent to the Tamil Nadu Act changed thecomplexion of the case, cannot be accepted, even if the Tamil NaduAct and the impugned U.G.C. Regulations are presumed for the sake ofargument, to cover the field specified in Entry 25 of the ConcurrentList. In fact, we have held in the previous paragraphs that theimpugned U.G.C. Regulations fall within the purview of Entry 66 ofList I and not under Entry 25 of List III, but we have merely testedthe veracity of the other argument, as to what would happen if bothare presumed to fall under Entry 25. Superior State Legislation -vs- Subordinate Central Legislation34. An interesting argument was advanced on behalf of theappellants that the impugned U.G.C. Regulations, being a delegatedsubordinate legislation, cannot over ride an Act of a StateLegislature, which is a superior Legislation. This argument isbased upon what is known as Kelsen's Theory of Hierarchy of Laws,relied upon by a Division Bench of this Court in Priyadarshini, N.-vs- The Secretary to Government, Education Department (DB) [2005(3) CTC 449]. The Supreme Court also considered the hierarchy oflaws and held in Ispat Industries Ltd. -vs- Commissioner of Customs,Mumbai [2006(137) ECR 0495 (SC) 2006(111) ECC 0495], as follows:-"14. In this connection, it may be mentionedthat according to the theory of the eminentpositivist jurist Kelsen (The Pure Theory of Law)in every legal system there is a hierarchy oflaws, and whenever there is conflict between anorm in a higher layer in this hierarchy and anorm in a lower layer the norm in the higher layerwill prevail (see Kelsen's "The General Theory ofLaw and State').In our Country this hierarchy is as follows:1)The Constitution of India;3)The Statutory Law, which may be eitherParliamentary law or Law made by the StateLegislature;5)Delegated or subordinate legislation,which may be in the form of rules madeunder the Act, regulations made under theAct, etc.,; https://hcservices.ecourts.gov.in/hcservices/ 7)Administrative orders or executiveinstructions without any statutorybacking."35. Drawing inspiration from the aforesaid decisions, it wascontended on behalf of the appellants that the Tamil Nadu PrivateColleges (Regulation) Act being a superior State Legislation, wouldprevail over the impugned Regulations, which happen to be asubordinate/delegated Central Legislation. But we are unable tocountenance the said contention. In Priyadarshini's Case, theDivision Bench of this Court was dealing with a Government Order,G.O.Ms.No.184, Higher Education Department, dated 09.06.2005, bywhich, the Professional Courses Common Entrance Examination, 2005,was abolished. Upon finding that the said Government Order was inconflict with the Regulations framed by the Medical Council of Indiaas well as the All India Council for Technical Education and DentalCouncil, this Court held that the Government Order was not valid.The relevant portion of paragraph No.27 of the judgment of theDivision Bench in Priyadarshini's case, reads as follows:- "The 1997 Regulations framed by the MedicalCouncil of India (as also those framed by the AllIndia Council for Technical Education and theDental Council) are norms in the third layer inthis hierarchy. On the other hand, the impugnedG.O.Ms.No.184, Higher Education (J2) Department,dated 9.6.2005 is in the 4th layer of thehierarchy. Hence, if there is a conflict betweenthe two, the Regulations will prevail." Thus the Division Bench was not examining the validity of a Stateenactment in the light of the Regulations issued under a Centralenactment. It was examining a Government Order vis-a-vis a centrallegislation. But even while holding so, the Division Bench made itclear in more than one place that the Regulations form part of theStatute itself. The relevant portion of paragraph No.20 of the saidjudgment is as follows:-"20. .............In Andhra Bank -vs-B.Satyanarayan, 2004 (2) SCC 657 (vide paragraph10) it was held by the Supreme Court that a validregulation once framed would be part of theStatute. Similarly, in St.Johns Teachers TrainingInstitute -vs- Regional Director, 2003 (1) CTC776: 2003 (3) SCC 321 (vide paragraph 10), theSupreme Court observed:"The regulations made under powerconferred by the statute are supportinglegislation and have the force andeffect, if validly made, as an Actpassed by the competent legislature see https://hcservices.ecourts.gov.in/hcservices/ Sukhdev Singh -vs- Bhagatram, AIR 1975SC 1331."It is not disputed by the respondents that theRegulations in question have been validly madeunder power conferred by the statute. Hence theyhave to be treated as part of the relevant Actitself."Again, in paragraph No.24, the Division Bench made it clear that the1997 Medical Council Regulations are to be treated as part of theMedical Council Act. Therefore, it has to be held that the impugnedU.G.C. Regulations, formed part of the U.G.C. Act itself. Once itis held so, the Central Legislation, which falls under an Entry inthe Union List, would naturally occupy a higher place in thehierarchy, than a State Legislation that falls under an Entry in theConcurrent List. Therefore, the theory of hierarchy of laws doesnot get offended by holding that the impugned U.G.C. Regulations,would over ride the Tamil Nadu Private Colleges (Regulation) Act. 36. In Ispat Industries Limited Case, the Supreme Court wasconcerned with the impact of Section 14 of the Customs Act, 1962,upon Rule 9 of the Customs Valuation (Determination of Price ofImported Goods) Rules, 1988. It is in that context that the SupremeCourt invoked the theory of hierarchy of laws and held that theRules are subservient to the Act and cannot deviate from theprovisions of the Act. Therefore, the contention that the TamilNadu Act, being a superior State Legislation, will prevail over theimpugned Regulations (a subordinate Central Legislation) cannot beaccepted.37. In fact, in paragraph No.41 of its judgment in State ofT.N. and another -vs- Adhiyaman Educational and Research Instituteand others, the Supreme Court clearly held as follows:- "41 (ii) To the extent that the Statelegislation is in conflict with the Centrallegislation though the former is purported to havebeen made under Entry 25 of the Concurrent Listbut in effect encroaches upon legislationincluding subordinate legislation made by theCentre under Entry 25 of the Concurrent List or togive effect to Entry 66 of the Union List, itwould be void and inoperative."The expression used in the above paragraph, viz., "includingsubordinate legislation made by the Centre", steers clear of anydoubt. Therefore, we have no hesitation to conclude that theimpugned Regulations will get eclipsed by the Tamil Nadu PrivateColleges Act.The right under Article 19(1)(g)38. The sheet anchor of the case of the appellants is that the https://hcservices.ecourts.gov.in/hcservices/ requirement under the impugned Regulations, to constitute SelectionCommittees, for the selection of Lecturers and Principals inColleges, infringed upon the fundamental right of the private aidedinstitutions, guaranteed under Article 19(1)(g) of the Constitution.In support of the said contention, the learned counsel for theappellants, relied upon 2 decisions of the Supreme Court, the firstof which, is in N.Ammad -vs- The Manager, Emjay High School andothers (1992-2 L.W. 52). The relevant portion of the said judgmentis as follows:-"15.Selection and appointment of Headmasterin a school (or Principal of a college) are ofprime importance in administration of thateducational institution. Headmaster is the keypost in the running of the school. He is the hubon which all the spokes of the school are setaround whom they rotate to generate result. Aschool is personified through its Headmaster andhe is the focal point on which outsiders look atthe school. A bad Headmaster can spoil the entireinstitution, an efficient and honest Headmastercan improve it by leaps and bounds. Thefunctional efficacy of a school very much dependsupon the efficiency and dedication of itsHeadmaster. This pristine precept remainsunchanged despite many changes taking place in thestructural patterns of education over the years.16. How importance is the post of Headmasterof a school has been pithily stated by a FullBench of Kerala High Court in Aldo Maria Patronl-vs- E.C.Kesavan and others (1964 Kerala Law Time791). Chief Justice M.S.Menon has, in a stylewhich is inimitable, stated thus:"The post of the headmaster is of pivotalimportance in the file of a school. Around himwheels the tone and temper of the institution: onhim depends the continuity of its traditions, themaintenance of discipline and the efficiency ofits teaching. The right to choose the headmasteris perhaps the most important facet of the rightto administer a school, and we must hold that theimposition of any trammel thereon – except to theextent of prescribing the requisite qualificationsand experience – cannot but be considered as aviolation of the right guaranteed by Article 30(1)of the Constitution : To hold otherwise will be tomake the right 'a teasing illusion, a promise ofunreality'."17. The importance of the key role which aHeadmaster plays in the school cannot be betterdelineated than that. The Nine Judge Bench in theAhmedabad St. Xaviers College Society and anotheretc. -vs- State of Gujarat and another (1975 1 SCR https://hcservices.ecourts.gov.in/hcservices/ 173) has highlighted the importance of the roleof Principal of a college. In support of themajority view in that decision K.K.Mathew, J, hasobserved thus:"It is upon the principal and teachers of acollege that the tone and temper of an educationalinstitution depend. On them would depend itsreputation, the maintenance of discipline and itsefficiency in teaching. The right to choose theprincipal and to have the teaching conducted byteachers appointed by the management after anoverall assessment of their outlook and philosophyis perhaps the most important facet of the rightto administer an educational institution."18. H.R.Khanna, J. has adopted a stillbroader view that even selection of teachers is ofgrant importance in the right to manage a school.Learned Judge has stated thus:"The selection and appointment of teachersfor an educational institution is one of theessential ingredients of the right to manage aneducational institution and the minorities canplainly be not denied such right of selection andappointment without infringing Article 30(1),"19. Krishna Iyer, J. who dissented from themajority view in Gandhi Faizeam College,Shahajappur vs. University of Agra & another (19753 SCR 810) has, nevertheless, emphasised theimportance of the post of the Principal in thefollowing words:"An activist principal is an asset indischarging these duties which are inextricablyinterlaced with academic functions. The principalis an invaluable insider – the Management's ownchoice – not an outsider answerable to the Vice-Chancellor. He brings into the work of theManaging Committee that intimate acquaintance witheducational operations and that necessaryexpression of student-teacher aspirations andcomplaints which are so essential for the minorityinstitution to achieve a happy marriage betweenindividuality and excellence."20. Whatever is said about the importance ofthe post of Principal of a college vis-a-vis theadministration of the institution would in parimateria apply to the Headmaster of a school withequal force.21. If management of the school is not givenvery wide freedom to choose the personnel forholding such a key post subject of course to therestrictions regarding qualifications to beprescribed by the State, the right to administerthe school would get much diminished." https://hcservices.ecourts.gov.in/hcservices/ The next decision relied upon by the appellants, is the one inBrahmo Samaj Education Society -vs- State of West Bengal [(2004) 6Supreme Court Cases 224]. The relevant portions of the saidjudgment are as follows:-"6. The question now before us is to decidewhether the appointment of teachers in an aidedinstitution by the College Service Commission byrestricting the petitioners' right to appointmentis a reasonable restriction in the interest ofgeneral public or not. The petitioners have aright to establish and administer educationalinstitution. Merely because the petitioners arereceiving aid, their autonomy of administrationcannot be totally restricted and institutionscannot be treated as a government-owned one. Ofcourse the State can impose such conditions as arenecessary for the proper maintenance of standardsof education and to check maladministration. Itis stated in T.M.A. Pai Foundation -vs- State ofKarnataka [(2002) 8 SCC 481] that:"71. While giving aid to professionalinstitutions, it would be permissible for theauthority giving aid to prescribe by rules orregulations, the conditions on the basis ofwhich admission will be granted to differentaided colleges by virtue of merit, coupledwith the reservation policy of the State. Themerit may be determined either through acommon entrance test conducted by theuniversity or the Government followed bycounselling, or on the basis of an entrancetest conducted by individual institutions-themethod to be followed is for the university orthe Government to decide. The authority mayalso devise other means to ensure thatadmission is granted to an aided professionalinstitution on the basis of merit. In thecase of such institutions, it will bepermissible for the Government or theuniversity to provide that considerationshould be shown to the weaker sections of thesociety.72. Once aid is granted to a privateprofessional educational institution, theGovernment or the State agency, as a conditionof the grant of aid, can put fetters on thefreedom in the matter of administration andmanagement of the institution. The State,which gives aid to an educational institution,can impose such conditions as are necessaryfor the proper maintenance of the highstandards of education as the financial burden https://hcservices.ecourts.gov.in/hcservices/ is shared by the State. The State would alsobe under an obligation to protect the interestof the teaching and non teaching staff. Inmany States, there are various statutoryprovisions to regulate the functioning of sucheducational institutions where the Statesgive, as a grant or aid, a substantialproportion of the revenue expenditureincluding salary, pay and allowances ofteaching and non-teaching staff. It would beits responsibility to ensure that the teachersworking in those institutions are governed byproper service conditions. The State, in thecase of such aided institutions, has amplepower to regulate the method of selection andappointment of teachers after prescribingrequisite qualifications for the same. Eversince in Kerala Education Bill, 1957, Re AIR1958 SC 956 : 1959 SCR 995, this Court hasupheld, in the case of aided institutions,those regulations that served the interests ofstudents and teachers. Checks on theadministration may be necessary in order toensure that the administration is efficientand sound and will serve the academic needs ofthe institutions. In other words, rules andregulations that promote good administrationand prevent maladministration can beformulated so as to promote the efficiency ofteachers, discipline and fairness inadministration and to preserve harmony amongaffiliated institutions. At the same time ithas to be ensured that even an aidedinstitution does not become a government-ownedand controlled institution. Normally, the aidthat is granted is relatable to the pay andallowances of the teaching staff. Inaddition, the management of the private aidedinstitutions has to incur revenue and capitalexpenses. Such aided institutions cannotobtain that extent of autonomy in relation tomanagement and administration as would beavailable to a private unaided institution,but at the same time, it cannot also betreated as an educational institutiondepartmentally run by Government or as awholly owned and controlled governmentinstitution and interfere with constitution ofthe governing bodies or thrusting the staffwithout reference to management.73. There are a large number ofeducational institutions, like schools andnon-professional colleges, which cannotoperate without the support of aid from the https://hcservices.ecourts.gov.in/hcservices/ State. Although these institutions may havebeen established by philanthropists or otherpublic-spirited persons, it becomes necessary,in order to provide inexpensive education tothe students, to seek aid from the State. Insuch cases, as those of the professional aidedinstitutions referred to hereinabove, theGovernment would be entitled to makeregulations relating to the terms andconditions of employment of the teaching andnon-teaching staff whenever the aid for theposts is given by the State as well asadmission procedures. Such rules andregulations can also provide for the reasonsand the manner in which a teacher or any othermember of the staff can be removed. In otherwords, the autonomy of a private aidedinstitution would be less than that of anunaided institution."7. But that control cannot extend to the day-to-day administration of the institution. It iscategorically stated in T.M.A. Pai Foundationthat the State can regulate the method ofselection and appointment of teachers afterprescribing requisite qualification for the same.Independence for the selection of teachers amongthe qualified candidates is fundamental to themaintenance of the academic and administrativeautonomy of an aided institution. The State canvery well provide the basic qualification forteachers. Under the University Grants CommissionAct, 1956, the University Grants Commission (UGC)had laid down qualifications to a teaching post ina university by passing Regulations. As per theseRegulations UGC conducts National Eligibility Test(NET) for determining teaching eligibility ofcandidates. UGC has also authorised accreditedStates to conduct State-Level Eligibility Test(SLET). Only a person who has qualified NET orSLET will be eligible for appointment as a teacherin an aided institution. This is the requiredbasic qualification for a teacher. Thepetitioners' right to administer includes theright to appoint teachers of their choice amongthe NET/SLET qualified candidates.8. Argument on behalf of the State that theappointment through the College Service Commissionis to maintain the equal standard of education allthroughout the State of West Bengal, does notimpress us. The equal standard of teachers arealready maintained by NET/SLET. Similarly,receiving aid from State coffers can also not betreated as a justification for imposition of anyrestrictions that cannot be imposed otherwise." https://hcservices.ecourts.gov.in/hcservices/

39. We have carefully gone through the above 2 decisions, butwe find that they are distinguishable. It is seen from paragraphNo.1 read with paragraph No.5 of the decision of the Supreme Courtin N.Ammad's Case that it was a case relating to appointment to thepost of Headmaster of a Muslim minority educational institution.The very question taken up by the Supreme Court for consideration inthe said decision, was as to whether the management of a minorityschool was free to choose and appoint any qualified person asHeadmaster of the school and whether such management is hedged byany Legislative edict or Executive fiat in doing so. Therefore, thesaid decision is of no assistance to the appellants, since we arenot dealing with the right of the minority institutions, in thepresent case, but confined our scrutiny only to non minorityinstitutions. 40. The decision in Brahmo Samaj Education Society, merelyfollowed the ratio as found in paragraph Nos.71 to 73 of thedecision of the larger Bench of the Supreme Court in T.M.A.PaiFoundation case. Without going into the question as to whetherBrahmo Samaj Education Society is a minority institution or not, theSupreme Court merely relied upon those three paragraphs in thejudgment in T.M.A. Pai case and directed the State Government tomake suitable amendments to the Act and the Rules, so as to bringthem in conformity with the principles set out in T.M.A Pai case.As a matter of fact, the Supreme Court disposed of the said case onthe following lines:-"9. Both sides rely on the passages quotedabove from the judgment in T.M.A. Pai to projecttheir respective contentions.10. When a larger Bench consisting of elevenJudges of this Court in T.M.A. Pai has declaredwhat the law on the matter is, we do not want todilute the effect of the same by analysing variousstatements made therein or indulge in anydissection of the principles underlying it. Wewould rather state that the State Government shalltake note of the declarations of law made by thisCourt in this regard and make suitable amendmentsto their laws, rules and regulations to bring themin conformity with the principles set out therein.11. In this view of the matter, it isunnecessary to examine whether the present rulesare valid or not. Until such time as such rulesare framed in terms of the order made by us now,the interim orders made by this Court in theseproceedings will be operative."Therefore, the decision in Brahmo Samaj Education Society case willnot go to the rescue of the appellants, since the Supreme Court didnot declare the State Enactments by which a College ServiceCommission was set up by the State of West Bengal, to be violativeof their right under Article 19(1)(g) of the Constitution. 41. In any case, the West Bengal State Enactments, which were https://hcservices.ecourts.gov.in/hcservices/ under challenge in the said case, provided for the constitution of aCollege Service Commission, like any other Public ServiceCommission, for selection of teachers for appointment to allcolleges including private aided colleges. No leverage was given tothe managements of the private colleges, even to participate in theselection process, since the Service Commission was conceived of tobe an autonomous body. But in the case on hand, the impugnedRegulations merely provide for the constitution of a floating body,named as Selection Committee, which would comprise ofrepresentatives of the educational agency running the privatecollege. The impugned Regulations have not completely negated therole of the management of the private aided colleges, in the matterof selection of Lecturers and Principals. Apart from involving therepresentatives of the managements of the private colleges, theimpugned regulations require the inclusion of subject experts, inthe Selection Committee so that such a selection would actuallyenure to the benefit of the private college itself. 42. Moreover, even in T.M.A. Pai Foundation case, which isjust simply followed in Brahmo Samaj case, the Supreme Court held inparagraph No.107 that even the right under Article 30(1) was not soabsolute as to prevent the Government from making any Regulationwhatsoever. It was further held in the said paragraph that anyRegulation framed in the National interest must necessarily apply toall educational institutions and that the right under Article 30(1)cannot be such as to over ride the National interest. If the rightunder Article 30(1) itself is not absolute, it is needless to statethat the right guaranteed under Article 19(1)(g) is also of thesame nature since it is always subject to any reasonable restrictionimposed by law framed under Article 19(6). Therefore, we hold thatthe mandate issued under the impugned Regulations, to constituteSelection Committees for the appointment of Lecturers andPrincipals, is not violative of Article 19(1)(g) of theConstitution.Impugned Regulations whether merely recommendatory or mandatory.43. It was contended on behalf of the appellants that theimpugned Regulations could be construed only as recommendatory innature and not as mandatory. However, we are unable to accept thesaid contention. In Vidya Dhar Pande -vs- Vidyut Grih Siksha Samiti(AIR 1989 Supreme Court 341) it was held as follows:-"The question whether a regulation framedunder power conferred by the provisions of aStatute has got statutory power and whether anorder made in breach of the said Regulation willbe rendered illegal and invalid came up forconsideration before the Constitution Bench in thecase of Sukhdev Singh -vs- Bhagatram Sardar SinghRaghuvanshi [(1975) 3 SCR 619 : AIR 1975 SC 1331].In this case, it was held that:"There is no substantial difference between arule and a regulation inasmuch as both aresubordinate legislation under powers conferred by https://hcservices.ecourts.gov.in/hcservices/ the statute. A regulation framed under a statuteapplies uniform treatment to every one or to allmembers of some group or class. The Oil andNatural Gas Commission, the Life InsuranceCorporation and Industrial Finance Corporation areall required by the statute to frame regulationsinter alia for the purpose of the duties andconduct and conditions of service of officers andother employees. These regulations imposeobligation on the statutory authorities. Thestatutory authorities cannot deviate from theconditions of service. Any deviation will beenforced by legal sanction of declaration bycourts to invalidate actions in violations ofrules and regulations. The existence of rules andregulations under statute is to ensure regularconduct with a distinctive attitude to thatconduct as a standard. The statutory regulationsin the cases under consideration give the employeea statutory status and impose restriction on theemployer and the employee with no option to varythe conditions."10. There is therefore, no escape from theconclusion that regulations have force of law.The order of the High Court must therefore bereversed on this point unhesitatingly."Again in Medical Council of India -vs- State of Karnataka and others[(1998) 6 Supreme Court Cases 131], it was held as follows:-"24. .............. Regulations framed underSection 33 of the Medical Council Act with theprevious sanction of the Central Government arestatutory. These regulations are framed to carryout the purposes of the Medical Council Act andfor various purposes mentioned in Section 33. Ifa regulation falls within the purposes referredunder Section 33 of the Medical Council Act, itwill have mandatory force. Regulations have beenframed with reference to clauses (fa), (fb) and(fc) (which have been introduced by the AmendmentAct of 1993 w.e.f. 27.08.1992) and clauses (j),(k) and (l) of Section 33." In St. Johns Teachers Training Institute -vs- Regional Director,N.C.T.E. (2003 AIR SCW 894) it was held as follows:-"The main justification for delegated legislationis that the legislature being over burdened andthe needs of the modern day society being complexit cannot possibly foresee every administrativedifficulty that may arise after the Statute hasbegun to operate. Delegated legislation fillsthose needs. The Regulations made under powerconferred by the Statue are supporting legislationand have the force and effect, if validly made, asthe Act passed by the competent legislature. (see https://hcservices.ecourts.gov.in/hcservices/ Sukhdev Singh -vs- Bhagatram, AIR 1975 SC 133)." The above view was reiterated in Maharashtra University of HealthSciences -vs- Paryani Mukesh Jawaharlal and others [2007(3) ESC 467(SC)] on the following lines:-"MCI has been set up as an expert body tocontrol the minimum standards of medical educationand to regulate their observance. The regulationsframed by the MCI with the previous sanction ofthe Central Government, in regard to any of thematters referred to in Section 33 of the IndianMedical Council Act, 1956, will have statutoryforce and are mandatory. Universities mustnecessarily be guided by the MCI Regulations. Anyregulations made by the Universities which areinconsistent with the MCI Regulations, or whichdilute the criteria laid down by MCI will not bevalid to the extent of inconsistency or dilution."Therefore, the impugned Regulations have statutory force and theUniversities as well as the Colleges affiliated to the Universitiesare obliged to follow the same.44. Lastly, our attention was drawn by the learned counsel forthe respondents to the judgment of a Division Bench of the DelhiHigh Court in Jesus and Mary College, Delhi -vs- University of Delhidecided on 30.11.2006. The said case arose out of an amendment tothe Delhi University Statutes. Clause 7(4A) of Chapter XVIII of theDelhi University Statutes, was amended by an Ordinance, providingfor the Constitution of a Selection Committee in every Collegeaffiliated to the Delhi University, for appointment of Lecturers inColleges. The composition of the Selection Committee prescribed bythe said Ordinance, was almost akin to the prescription under theU.G.C. Regulations impugned in the present cases. The amendment waschallenged by an aided minority educational institution, asunconstitutional, before the Delhi High Court. The Division Benchof the Delhi High Court rejected the challenge to the amendment, bya judgment dated 30.11.2006. Though the situation before us issimilar to the one before the Delhi High Court in the said case, wedo not wish to go into details on the said judgment for two reasons,which are as follows:-(a) The challenge before the Delhi High Court, was confined only tothe rights of minority educational institutions guaranteed underArticles 29 and 30 of the Constitution. But in the case before us,the challenge to the U.G.C. Regulations, is by the Association ofPrivate Colleges, a majority of which are non minority colleges.Minority institutions have separately challenged the very sameU.G.C. Regulations in a separate batch and hence, we have not dealtwith the rights of minority institutions, vis-a-vis the impugnedU.G.C. Regulations, in this case. In other words, we have not, inthe present case, tested the validity of the impugned U.G.C.Regulations, on the touchstone of Articles 29 and 30 of theConstitution. (b) The Delhi High Court, after upholding the amendment to the Delhi https://hcservices.ecourts.gov.in/hcservices/ University Statutes, has issued a certificate under Article 133 readwith Article 134 A of the Constitution, of leave to appeal againstthe said judgment to the Supreme Court. Therefore, for the presentwe do not wish to take up the issue of the rights of minorityinstitutions, in the present batch of cases. Conclusion:- 45. In fine, we hold that the impugned U.G.C. Regulations,more particularly, paragraph Nos. 3.1.0 and 3.5.0 of the same, areperfectly valid and there are no valid and proper reasons to strikedown the same as unconstitutional and ultravires. The writ AppealNos.585 and 1305 of 2006 arising out of W.P.No. 17630 of 2005, aredevoid of merits. The selection of Dr.J.Mohanraj as the Principal ofKamaraj College, Tuticorin, (appellant in W.A.No.585 of 2006) by aCommittee other than the Selection Committee prescribed by theU.G.C. Regulations, 2000, has been rightly set at naught by a wellconsidered judgment of the learned Judge. We see no reason tointerfere with the said Judgement. Consequently, all the writappeals are dismissed. Connected M.Ps. are closed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.bs/To1. The Secretary to Government, Government of Tamil Nadu,Department of Higher Education, Fort St. George, Chennai-600 009.2. The Director of Collegiate Education, College Road, Chennai-600 008.3. The Registrar, Manonmaniam Sundaranar University, Tirunelveli.4. Regional Joint Director of Collegiate Education, Thirunelveli Region, Thirunelveli.5. The Secretary, University Grants Commission, Bahadursah Zafar Marg, New Delhi-110 002. https://hcservices.ecourts.gov.in/hcservices/

6. The Registrar, University of Madras, Chepauk, Chennai-600 005.7. The President, Madurai Kamraj Manonmaniam Sundaranar University Teacher's Association (MUTA), No.6 Kakka Thope, Madurai.1 cc t Mr. Rathina Asohan, Advocate, Sr. 27544 ccs to Mr.R. Subramanian, Advocate, Sr. 26881 cc to Mr.K. Venkateswaran, Advocate, SR. 25371 cc to Mr.D.Hariparanthaman, Advocate, Sr. 28801 cc to Mr. Kandavadivel Doraisami, Advocate, Sr. 29441 cc to Mr. Row and Reddy, Advocate, Sr. 26981 cc to Mr.R. Gopinathan, Advocate, Sr. 25331 cc to Mr.K. Shakespeare, Advocate, Sr. 2538W.A.Nos.585,1305 and 1322 of 2006PVR (CO)kk 31/1