ROOPAKALA PRASAD v. THE UNIVERSITY GRANTS COMMISSION

W.P.(C).No.22187/2012, etc.-4-Category Paper-I, Paper-II Paper-IIIGeneral 40 (40%) 40 (40%) 75 (50%)OBC(Non-creamy layer) 35 (35%) 35 (35%) 67.5 (45%)(rounded off to 68)PH/VH/SC/ST 35 (35%) 35 (35%) 60 (40%)The scheme of examination is contained in Ext.P2 and going by the same,for the Ist paper the total mark is 100, for the IInd paper also the same is 100and for IIIrd paper it is 150. For the first paper, out of 60 questions, 50questions will have to be attempted, for the second paper, there are 50questions and all of them are compulsory and for paper 3, there are 75questions and all are compulsory. The duration of hours of examination is 1½ hours each for papers 1 and 2 and 2 ½ hours for paper 3 which areconducted in sessions 1 and 2 respectively. 5. The test was conducted accordingly on 24.6.2012 and thepetitioner appeared for all the three papers. The carbon print out of OMRanswer sheets were allowed to be carried by the candidates which havebeen produced as Exts.P4 and P5. Answer key is published for all thepapers which are produced as Ext.P6 series.6. The writ petitions have been filed when, on 18.9.2012 theUniversity Grants Commission notified the minimum qualifying percentage W.P.(C).No.22187/2012, etc.-5-of marks. It is averred that the change was notified only after theevaluation of answer papers and immediately before the publication ofresults. The change notified is extracted in para 5 of the writ petition whichis as follows:Category Minimum Qualifying Percentage Paper-I, Paper-II Paper-III Aggregate of allthree papersGeneral 40% 40% 50% 65%OBC(Non-creamy layer) 35% 35% 45% 60%SC/ST/PWD35% 35% 40% 55% The copy of the notification is produced as Ext.P7. Therefore, thesubstantial change is that for general category candidates the UGC hasfixed 65% as the aggregate of all the three papers, to acquire NET. ForOBC the same is fixed as 60% and for SC/ST/PWD it is fixed as 55%. It isthe case of the petitioner that the first respondent was bound to publish theresults as per the minimum prescribed marks, as notified in Exts.P1 and P2.7. In the grounds of the writ petition, in W.P.(C) No.22187/2012the petitioner points out that the regulations have been framed by the UGCas per the terms of Section 26 of the UGC Act. For conducting test, theUGC is acting as an examining body and it is not conferring any degree to a W.P.(C).No.22187/2012, etc.-6-candidate. The U.G.C. is not preparing a select list for appointment to anypost. The clearance of NET is only an additional qualification for beingappointed as Lecturer in any University or affiliated colleges. Therefore,the relevant aspect is only the conditions in the notification. The changeeffected is not fair, reasonable and is clearly arbitrary and the body has tofunction in terms of the constitutional mandate. As far as NET qualificationis concerned, what is provided is only clearance of NET. UGC is not actingas a body conducting selection to a post. Thus, a qualifying criteria and itsfixation is out of the bounds of the UGC. It is therefore pointed out that ithas no power for laying down any new criteria or eligibility for particularpost. The prescriptions cannot be changed or altered after the conduct ofexamination and immediately before publication of the results. 8. Similar contentions have been raised by the petitioner in W.P.(C)No.22280/2012. Therein, the petitioner is a Post Graduate in Law and shepassed LL.M. Degree conducted by the Kerala University in the year 2010with 76% marks.9. In W.P.(C) No.26468/2012 the petitioners are similarly placed.They also contend that in fixing the aggregate as now fixed by the UGC,there are various infirmities. Before commencement of the examination no W.P.(C).No.22187/2012, etc.-7-aggregate was fixed and the fixation of the same after the examination,would result in great prejudice to the candidates. It is pointed out that theenhancement of the aggregate itself is irrational, as 40%/50% being fixedfor a pass in individual papers and later fixing it as 65% as an aggregatefor the very same paper. The same cannot be sustained. Therefore, actuallyit is enhancement of the minimum percentage required for individualpapers. Therefore, even if a candidate has the minimum percentage thepresent exercise will result in failure in the examination which cannot bejustified. It is also pointed out that the candidates have written theexamination in the light of the announcement made in the notification andas per the criteria fixed in the prospectus. They were expected to get onlya minimum and attempted only the most beneficial questions whileappearing. It is pointed out that in the first paper even though there are 60questions, the candidates need attempt 50 questions alone. Thus, actuallythe non announcement of the change/enhanced criteria beforecommencement of the examination has caused prejudice to the petitioners,as otherwise they could have prepared for maximum results and forattending the maximum number of questions. It is also pointed out that thedecision now taken by the officers of the UGC cannot be accepted at all and W.P.(C).No.22187/2012, etc.-8-is without jurisdiction. It is further pointed out that the change in thecriteria in the middle of a process and after the test is illegal andunsustainable in the light of the law declared by this Court and the ApexCourt in various cases. Herein, there is no power empowered on the UGCto change the criteria after the whole exercise is over and just before theannouncement of the results.10. With regard to the examination conducted, it is contended that itis not a competitive test for giving any employment and what is beingdecided is the only minimum eligibility. It is submitted that the UGC willhave to act fairly and responsibly.11. Heard Shri K. Gopalakrishna Kurup, learned Senior Counsel forthe petitioners, Shri K. Jaju Babu, Shri Kaleeswaram Raj, Shri K.B.Arunkumar and Shri Philip Mathew, Shri George VarghesePerumpilikuttiyil, Shri Basil Attipetty and other learned counsel whoappeared for the petitioners and Shri S. Krishnamoorthy, learned StandingCounsel for the UGC. Shri K. Gopalakrishna Kurup, learned Senior Counsel appearing forsome of the petitioners submitted that under Section 25 of the U.G.C. Actcertain powers have been conferred on the U.G.C. It is submitted that the W.P.(C).No.22187/2012, etc.-9-power to make rules and regulations should be carried out within the four corners of the said rules and regulations alone. It is submitted thatSection 26(1) of the Act gives power to the Commission to prescriberegulations consistent with the Act and the rules made thereunder. Goingby sub-section 1(e), the power is only to define the qualifications thatshould ordinarily be required of any person to be appointed to the teachingstaff of the University having regard to the branch of education in which heis expected to give instructions. Sub-section 1(f) will show that the powercan be exercised for defining the minimum standards of instruction for thegrant of any degree by any University. The regulations herein under para1.3.3. prescribes the qualification for the post of Lecturer. Apart from theacademic qualifications, the candidates are required to clear the eligibilitytest (NET). Herein, going by the present prescription, what is decided bythe UGC is an eligibility itself for lectureship before the declaration ofresults by adopting 65% aggregate for general category candidates and likestandards for other categories of candidates. In the absence of amendmentto the Regulations 2000, the same cannot be recognised. It is now beingtreated as a qualification for appointment to the post of Lecturer. By citingthe practice and tradition in the previous examination it is pointed out that W.P.(C).No.22187/2012, etc.-10-in the former years only 40% was fixed as minimum. In the absence of aregulation conferring power on the Commission, by prescribing the newyardstick, the UGC has clearly acted arbitrarily. Reliance is placed on thedecisions of the Apex Court in K. Manjusree v. State of Andhra Pradeshand another {(2008) 3 SCC 512}, Hemani Malhotra v. High Court ofDelhi {(2008) 7 SCC 11} and Central Board of Secondary Educationand another v., Aditya Bandopadhyay and others {(2011) 8 SCC 497} tocontend that the UGC is only an examining body and is not an appointingauthority or a body conducting selection to fill up the post of Lecturer. It iswell settled that the rules cannot be changed mid course. As the petitionershave secured the minimum marks, their results are thus to be declared.13. Shri K. Jaju Babu, learned counsel appearing for some of thepetitioners submitted that the position is well settled that there cannot beany change during mid course. Herein, there is no enabling power foradopting such a criteria. The test is not a competitive one and therefore newstandards cannot be fixed to scale down or reduce the number of candidates.The learned counsel also relied upon various decisions in support of thepleas.14. Learned counsel appearing for some of the petitioners, Shri W.P.(C).No.22187/2012, etc.-11-Kaleeswaram Raj submitted that actually there is no decision by acompetent body of the U.G.C. and the decision taken is by some officers.Under the provisions of Sections 25 and 26 of the UGC Act, no such poweris vested on any of the officers. By referring to Section 27 of the Act, it issubmitted that only under the said provision, that also by regulations, theCommission can delegate to its Chairman, Vice-Chairman or any of itsofficers, its power of general superintendence and direction over thebusiness transacted by, or in, the Commission, including the powers withregard to the expenditure incurred in connection with the maintenance of theoffice and internal administration of the Commission. It is submitted thatsub-section (2) is important which states that “no regulation shall be madeunder this section except with the previous approval of the CentralGovernment.” It is submitted that the absence of any such exercise here,makes the entire action ultra vires and illegal. Learned counsel also reliesupon various judgments of the Apex Court in that context. It is submittedthat there was no indication in the notification about the matter and even ifthere is any, it will be arbitrary. 15. Shri K.B. Arunkumar, Shri George Varghese Perumpillikuttiyil,Shri Philip Mathew and Shri Basil Attipetty, learned counsel appearing for W.P.(C).No.22187/2012, etc.-12-some of the petitioners also supported the arguments of the learned SeniorCounsel appearing for the petitioners and submitted that there cannot beany change of rules in the mid stream. Several decisions of the Apex Courthave been relied upon by them.16. The UGC has filed a counter affidavit wherein the action issought to be supported on various grounds. The counter affidavit is filed inW.P.(C) No.22280/2012. It is submitted that in the UGC notification,Ext.R1(a) itself, it is announced that final qualifying criteria for JuniorResearch Fellowship and eligibility for Lectureship shall be decided by theUGC, before declaration of results. In para 7 it is mentioned that only suchcandidates who have obtained the minimum required marks in each paperseparately as mentioned in para 5, will be considered for final preparationof results. It is therefore submitted that the candidates were put to notice ofthe same by the notification itself and there is no illegality in the matter.Thus, the final qualifying criteria has been decided perfectly as empoweredby the notification itself. The Moderation Committee constituted by theUGC consists of senior academicians was for finalisying the qualifyingcriteria for Lectureship Eligibility and Junior Research Fellowship held inJune, 2012. The meeting of the Committee took place on 17.9.2012. The W.P.(C).No.22187/2012, etc.-13-Committee recommended that the General, OBC (non-creamy layer) andSC/ST/PWD candidates would be required to obtain an aggregatepercentage of 65%, 60% and 55% respectively in addition to the paper-wiseminimum percentage as qualifying criteria. This is done in keeping thecustomary practice adopted for finalising the result of UGC-NET. Thebasic minimum benchmark is intimated to the candidates in the notificationannouncing UGC-NET.17. It is stated in para 9 that the final cut-off is decided by theCommission, before the declaration of the result. In the notificationpublished by the UGC, there is always a clause that the final cut-off shall bedecided by the Commission before declaration of the result. As such theremay be conflict in the minimum and qualifying marks prescribed in boththese notifications.18. The action taken by the UGC is sought to be supported bymaintaining that the mandate of the UGC includes determining andmaintaining standards of teaching, examination and research in Universities.Therefore, the said powers of the UGC to frame the criteria for anexamination that makes the candidates eligible for teaching, is well withinits jurisdiction. In fixing the said criteria, no court can interfere. It is W.P.(C).No.22187/2012, etc.-14-averred in para 11 that NET is a national level examination aimed toqualify the cream of the country for teaching and research in keeping withthe mandate of UGC as per UGC Act, 1956 which includes determining andmaintaining standards of teaching examination and research in Universities.In para 13, it is explained that nearly five lakh seventy thousand and oddnumber of candidates were participated in the test. Objective typequestions were introduced for the first time. Mainly it is stated in para 13thus:“The eligibility criteria have been decided by the committees,taking note of various aspects and also to protect the standards ofeducation. Comparing with the previous year's percentage of pass,even while prescribing 65% of marks aggregate, the number ofqualifying candidates is 3 times higher. The UGC, whileintroducing the objective mode, for the first time, has cautiouslypublished the notification, prescribing minimum marks and clearlymentioned therein that, the qualifying criteria and eligibilitycriteria shall be decided by the UGC, before the publication ofresult. The qualifying criteria prescribed by the UGC, is basingupon the primary duty of the UGC, to prescribe and maintaineducational standards for ;lectureship. There cannot be anyarbitrariness or discriminations for the same.”It is further pointed out in para 14 that since it is a national level W.P.(C).No.22187/2012, etc.-15-examination and as there is no ranking system, a cut off percentage is fixed,as a qualifying criteria. The notification/prospectus is only an invitation, toappear for the examination. Since it is an objective type examination,qualifying criteria can only be determined later. The same cannot beequated with a notification for any public appointment. The committee canevolve such procedure for determining the eligibility criteria. The wisdomof the committee cannot be called into question. The Apex Court hasdecided in various cases that in academic matters, the Court cannotinterfere.19. Shri S. Krishnamoorthy, learned Standing Counsel for the UGCtherefore submitted that the UGC is not simply an examining body.Attention was invited to Section 12 of the Act in particular and it iscontended that going by Section 12 which defines the powers and functionsof the Commission, the Commission is empowered to take such steps forthe promotion and co-ordination of University education and for thedetermination and maintenance of standards of teaching, examination andresearch. Section 26(1)(e) which confers power to define qualifications,was also relied upon, apart from the regulations of the year 2000 and it issubmitted that the regulation has got statutory force in the light of the W.P.(C).No.22187/2012, etc.-16-decisions of the Apex Court. As far as the aspect of clearance of NET underpara 1.3.3. is concerned, it is submitted that it will always be the subjectivesatisfaction of the U.G.C. It is pointed out that for this year all the papershave been prescribed in objective mode. The said body can fix up themarks required for qualifying the test itself. It is submitted that there wasno complaint against the prescription in the notification about therequirement whereby it was notified that final qualifying marks will befixed later. The UGC was entrusted with the task of conducting theexamination by the Government of India in 1988. Shri Krishnamoorthyexplained that after the initial results were available, they were analysed bythe committee on various aspects. The committee, after examining theanswer papers and the competence including the skill and aptitude, etc., hasmade a recommendation for fixing the standard on a higher aggregatemarks. Of course, the recommendation of the committee may not bebinding on the UGC but they can accept or reject it. The last year 5% markswas reduced and this year an increase was made. It is pointed out that thestandard in education is the sole aim which was undertaken by the UGC.It is submitted that there is no change in the rules of the game. Theminimum qualifying marks was never published and thus there is no W.P.(C).No.22187/2012, etc.-17-change from the said marks to come within the mischief in the rules of thegame. It is submitted that there is no prohibition in the regulation forputting the qualifying marks. Therefore, it is mainly contended that there isabsolute power under the regulations in prescribing the qualifying marks.Shri Krishnamoorthy relied upon the following decisions of the Apex Courtto contend that the UGC has got absolute power which aspect has beenconcluded by the Apex Court.: University of Delhi v. Raj Singh andothers (1994 Supp (3) SCC 516) and University Grants Commission etc.v. Sadhana Chaudhary & others (JT 1996 (8) SC 234). It is furtherpointed out that in academic matters this Court will be loathe to interfere.Certain decisions of the Apex Court are relied upon in that context also. Itis also stated that the precedents cited by the petitioners' counsel aredifferent on facts regarding the said aspect also. Such precedents will notapply where factual matrix is totally different. It is further pointed out thatthere is no compulsion for the UGC to announce the final qualifying marks,under the Act.20. In reply to the above arguments, Shri K. Gopalakrishna Kurup,learned Senior Counsel submitted that there is no power to fix a furthereligibility marks for lectureship, especially in the light of Section 26(1)(e) W.P.(C).No.22187/2012, etc.-18-and 1(g) of the Act. Such an eligibility criteria for lectureship cannot bemade in a notification. It can only be introduced by a regulation. TheNET clearance as provided in para 1.3.3 cannot be a source forempowerment. At any rate, it is contended that the UGC was bound todisclose about the same to the candidates well in time and in the absence ofthe same, serious prejudice has been caused to the candidates. LearnedSenior Counsel further submitted that the power is only to conduct theexamination and the requirement of a candidate is only to get the NETcleared to apply for the post. Shri Kaleeswaram Raj, learned counselsubmitted that the word “minimum” should be read along with the word“required” and the same will make the position clear. It is submitted thatthe committees who have deliberated are not statutory committees andtherefore their decision has no bearing on the issue. Shri Jaju Babusubmits that the well settled principle that rules of the game cannot bechanged in the midway should apply here, otherwise great prejudice will becaused to the candidates. It is submitted that the decision is taken by atotally incompetent body and any ratification will not help in such matters.21. Shri Krishnamoorthy, learned Standing Counsel explainedfurther that herein, the UGC has exercised the power under the said section W.P.(C).No.22187/2012, etc.-19-and the power to be exercised under Section 12 and those under theregulations are quite different. Here, what is prescribed is the maintenanceof standard envisaged in Section 12 and it is different from the regulationmaking power. The Chairman of the UGC can appoint committeesincluding important academicians in the field like the Vice Chancellor ofthe University and other members and they have recommended thestandards. The UGC necessarily will have to depend upon theacademicians to fix up the standards. But the only compulsion is that UGCneed not accept the same always. 22. The scheme of the test is clear from para 7 of Ext.R1(a). Afterproviding minimum marks, it is provided therein that such candidates willbe considered for final preparation of result. In the next paragraph it isexplained as follows:“However, the final qualifying criteria for JuniorResearch Fellowship (JRF) and Eligibility for Lectureship shallbe decided by UGC before declaration of result.”23.The crucial words in para 1.3.3 of the Regulations regardingNET qualification is that the candidate should have cleared “Eligibility test(NET) for lecturers” on which the entire arguments have been raised by W.P.(C).No.22187/2012, etc.-20-both sides.24.Before we come to the said point, it can be seen that under thevarious Circulars, the UGC has fixed a minimum qualification and what isprevalent now is regulation 2000. The same has been issued in supersession of the regulations issued in 1983, 1991 as well as a notification ofthe year 1985 and that of the year 1988. Para.1.3.3 and the Note havealready been noted in para 3 above.25.Apart from the academic qualification, wherein atleast 55% ofthe marks or an equivalent grade is fixed, that also at Masters Degree level,what is provided further is that “candidates should have cleared theeligibility test (NET)”. Going by the note, NET shall remain thecompulsory requirement for appointment as Lecturer even for candidateshaving Ph.D Degree and exemptions have been given therein. When wecome to the Scheme of the Act, Sections 12, 14, 25 and 26 are important.Section 25 confers power to make rules and Section 26 confers power tomake regulations. Section 2 defines Commission as the University GrantsCommission established under Section 4. Chapter III defines the powersand functions of the Commission under Section 12. Section 12 of coursemakes it a general duty on the Commission to take such steps in W.P.(C).No.22187/2012, etc.-21-consultation with the University and other bodies concerned as it may deemfit for the promotion and co-ordination of University education and for thedetermination and maintenance of “standards of teaching, examination andresearch” in Universities. The important limb under the regulation makingpower is evidently sub clauses (e), (f) and (g) of Section 26 (1) which aregiven below:“(e) defining the qualifications that should ordinarily berequired of any person to be appointed to the teaching staff ofthe University having regard to the branch of education inwhich he is expected to give instructions.(f) defining the minimum standards of instruction for the grantof any degree by any University.(g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities.”We have already seen Section 27 which confers power to delegate.26.The important point therefore is whether the exercise done bythe UGC as per the recommendation of the Moderation Committee to fixup eligibility for lectureship is supportable, in law. The aggregatepercentage on a much higher level from the minimum is fixed as aqualifying criteria. W.P.(C).No.22187/2012, etc.-22-27.Learned counsel for the petitioners relied upon the followingJudgments to show that there is difference between the functions of anexamining body and a selecting body:State of U.P. v. Rafiquddinand others [AIR 1988 SC 162 (para 12)] and Central Board ofSecondary Education and another v. Aditya Bandopadhyay and others{(2011) 8 SCC 497}. The decisions of the Apex Court in K.Manjusree v.State of Andhra Pradesh and another [(2008) 3 SCC 512] and HemaniMalhotra v. High Court of Delhi [(2008) 7 SCC 11] and that of this Courtin Jayachandran v. High Court of Kerala [2010 (4) KLT 49] and Vinodv. State of Kerala [2012 (2) KLT 683] are relied upon to contend that therecannot be any change in the standards during the midstream and the rulescannot be changed accordingly. The decision V.C. Banaras HinduUniversity and others v. Shrikant [(2006) 11 SCC 42] is relied upon tocontend that there is lack of authority for the committee since the statutenever contemplates such a committee. State of Himachal Pradesh andothers v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh[(2011) 6 SCC 597], Asha Sharma v. Chandigarh Administration andothers [(2011) 10 SCC 86] are relied upon in a context of principles underArticle 14 of the Constitution of India as well as power of Judicial Review W.P.(C).No.22187/2012, etc.-23-on policy decisions. These are the main decisions relied upon by thelearned counsel for the petitioners.28.Learned Standing Counsel Shri S.Krishnamoorthy relied uponHaryana Financial Corporation and another v. Jagdamba Oil Mills andAnother [(2002) 3 SCC 496], Delhi Administration (Now NCT of Delhi)v. Manohar Lal [(2002) 7 SCC 222], Bhavnagar University v. PalitanaSugar Mill (P) Ltd. and others [(2003) 2 SCC 111] to contend for theposition that this Court cannot act as an Appellate Authority by using thepower of judicial review and that precedents, unconnected with the factscannot be binding on this Court. The decisions of the Apex Court inDr.J.P.Kulshrestha and others v. Chancellor, Allahabad University andothers [(1980) 3 SCC 418], Maharashtra State Board of Secondary andHigher Secondary Education and another v. Paritosh BhupeshkumarSheth and others [(1984) 4 SCC 27] have been relied upon to contend thatin academic matters, there can be no interference by this Court. The same isthe dictum laid down in All India Council for Technical Education v.Surinder Kumar Dhawan and others [(2009) 11 SCC 726]. With regard tothe powers of UGC, the following decisions have been relied upon.University of Delhi v. Raj Singh and others [1994 Supplementary (3) W.P.(C).No.22187/2012, etc.-24-SCC 516], University Grants Commission etc. v. Sadhana Chaudharyand others [JT 1996 (8) SC 234], Annamalai University v. Secretary toGovernment, Information and Tourism Department and others [(2009)4 SCC 590]. The larger question that may arise for consideration is whetherthe UGC is acting only as an examining body and if so whether it can addanything to the prescriptions during the middle of the examination processby changing the rules of the game. The answer posed by the learnedStanding Counsel for the UGC Shri S.Krishnamoorthy is that the exercise ofthe power is in consonance with the powers conferred under Section 12 infixing standards.29.Even before going into such nice questions, it is only proper torefer to the principles stated in two decisions of the Supreme Court reliedupon by the learned Standing Counsel Shri S.Krishnamoorthy. They are,University of Delhi v. Raj Singh and others [1994 Supplementary (3)SCC 516] and University Grants Commission etc. v. SadhanaChaudhary and others [JT 1996 (8) SC 234].30.In the first of the decisions in University of Delhi v. Raj Singhand others [1994 Supplementary (3) SCC 516], the Apex Courtconsidered whether the regulations fixed by the UGC is only subsidiary to W.P.(C).No.22187/2012, etc.-25-the Delhi University Act in application to the said University and whetherthe same is binding on the said University. The entire scope of the UGCAct was examined in that context. The University contended that theregulations were beyond the competence of the UGC and were onlydirectory. The said regulation is the front runner to the regulation 2000namely the regulations 1991 prescribing the qualifications for appointmentof teaching staff. The Apex Court in that context examined Section 12 aswell as Section 26 (1) (e). In para.7 it was held as follows: “The said Regulation, that is to say, the UniversityGrants Commission (Qualifications required of a person to beappointed to the teaching staff of a University and institutionsaffiliated to it) Regulations 1991, were made in exercise of thepowers conferred by S.26(1)(e) reading with S.14of the U.G.C.Act and were notified on 19th September 1991 in the Gazetteof India.”References were made to clause 2 therein prescribing the qualifications andclause 3 the consequences of the failure of the Universities to abide by thesame. Their Lordships considered the genesis of the regulations in paras.8and 9 which will throw light on various important aspects, which areextracted below: W.P.(C).No.22187/2012, etc.-26-“8. The genesis of the said Regulations is to be found inrecommendations made by expert bodies of educationists fromtime to time. In the Report of the National Commission onTeachers-II, dated 23rd March, 1985, it was noted under thesub-title "evaluating academic achievements" that categoricalstatements had been made by various earlier committees andcommissions that examination results were neither reliable norvalid and comparable. It was recognised that the standards ofperformance varied from University, to University and thatUniversities which were a little more exacting were lessgenerous with their scores. A way had to be found to ensure notonly that justice was done but also that it appeared to be done.Thereafter, in considering an All India Merit Test, the Reportsaid that it had to be ensured that every citizen aspiring to be ateacher at the tertiary level, that is, a lecturer, qualified in termsof a national yardstick. Since the first appointment pre-supposed doctoral work and since the UGC as well as theCouncil of Scientific and Industrial Research (C.S.I.R.) held anAll-India test for fellowships at this stage, the grade secured bya candidate in this test could be utilised for drawing up a list ofcandidates eligible for lectureships in colleges and Universitiesof the country. If this proposal were to be implemented in sucha manner that the test became reliable, valid and comparablefrom the academic and the technical points of view, theproblem of regulating the induction of persons with high W.P.(C).No.22187/2012, etc.-27-calibre into the Universities and colleges of the country wouldbe largely taken care of and the dream of having a nationalcadre of academics with high Inter-regional mobility wouldhave been realised. The Report, therefore, recommended" thatthe U.G.C. should incorporate the passing of one of thenational tests at least in grade B+ on a seven-point scale in itsRegulation laying down the minimum qualifications of teachersand that this should come into force within two years". Underthe sub-title "Professional excellence", the Report reiteratedthat it was extremely important to make a rigorous merit-basedselection for the entry level into the teaching profession, andthis view corresponded with that of the vast majority ofteachers.9. In 1986 the U.G.C. appointed a committee of eminentmen in the field of education under the chairmanship of Prof.R.C. Mehrotra to examine the structure of emoluments andconditions of service of University and college teachers and tomake recommendations in this behalf "having regard tonecessity of attracting and retaining talented persons in theteaching profession and providing advancement andopportunities to teachers of Universities and colleges. "TheMehrotra Committee noted what the Sen Committee and theReview Committee of the U.G.C. 1977, had said in regard tothe need for improved qualifications of teachers and observedthat whereas high standards of M.Phil and Ph.D. continued to W.P.(C).No.22187/2012, etc.-28-be maintained in a number of Universities the standardsappeared to have been diluted at several places because ofunplanned growth, inadequate faculty and lack ofinfrastructural facilities. It was underlined that one very seriousconsequence of dilution of minimum standards for initialrecruitment had been that already existing disparities in thestandards of teaching between rural colleges, urban colleges,State Universities and Central Universities had tended to getfurther aggravated. The Mehrotra Committee recommendedthat the minimum qualification for eligibility to a lecturer'sposition should be a good M.A., M. Sc., M.Com., or equivalentdegree. While making this recommendation the committeeexpressed its full consciousness of the importance of researchexperience and capability as an essential input for efficiencyand quality of teaching in most disciplines at the tertiary(lecturer's) level. It, therefore, strongly recommended thecreation of much better research facilities for Universities andcolleges, particularly those dealing with post-graduateeducation to start with. This would enable brilliant lecturersrecruited without an M. Phil or Ph. D. degree to pursue courseand research work in their own institutions which could befollowed for the completion of their dissertation by morespecialised research for a limited period in a more advancedcentre of learning or research. In order to ensure the quality ofnew entrants to the teaching profession, the Mehrotra W.P.(C).No.22187/2012, etc.-29-Committee recommended that all aspirants for the post oflecturer in a University or college should have passed anational qualifying examination. This recommendation, it said,was in line with the recommendation of the NationalCommission on Teachers-II. Such a test would have the meritof removing disparities in standards of examination at theMaster's level between different Universities. The MehrotraCommittee hoped that by this step local influence would beminimised and the eligibility zone for recruitment wouldbecome wider. The proposed examination was to be aqualifying one in the sense that it determined only eligibilityand not selection. The Mehrotra Committee recommended thefollowing minimum qualification for the post of lecturer:'(i) Qualifying at the National Test conducted forthe purpose by the UGC or any other agencyapproved by the UGC.(ii) Master's degree with at least fifty five per centmarks or its equivalent grade and good academicrecord.The minimum qualification mentioned aboveshould not be relaxed even for candidatespossessing M. Phil, Ph.D. qualification at the timerecruitment.'"31. The evolution of the prescription of NET as a test is clear from W.P.(C).No.22187/2012, etc.-30-paras.8 and 10. The important thing to be noticed is that such a test wasprescribed in the light of the fact that the standards in various Universitiesmay vary. The matter was initially reported by the National Commission onTeachers II dated 22/03/1985 in its report. Therein, the Committee was ofthe view that the examination results under different Universities were notcomparable and that the standards of performance varied from University toUniversity. Therefore, an all India merit test was sought to be introduced.Again the matter was considered when the UGC appointed in 1986 aCommittee under the Chairmanship of Professor R.C. Mehrotra which wasprimarily to examine the structure of emoluments, conditions of service ofthe University and College Teachers. They found that there were disparitiesin the standards of teaching between the Rural Colleges, Urban Colleges,State Universities and Central Universities. Finally, they recommended thatin order to ensure the quality of new entrants to the teaching profession, allaspirants for the post of Lecturer in the University or College should havepassed a National qualifying examination. The nature of the examinationproposed is evident from the following sentence: “the proposed examinationwas to be a qualifying one in the sense that it determine only eligibility andnot selection” In the conference of Vice Chancellors held in the office of W.P.(C).No.22187/2012, etc.-31-the auspicious UGC 1999, major recommendations were finally made.Finally, going by para.11, the Government addressed UGC on these aspectson 17/06/1987. After considering various contentions and the Entry 66 ofList I, it was held in para 20 that the UGC Act is enacted under theprovisions of Entry 66 of List I of the Seventh Schedule to the Constitutionto carry out the objective thereof. After noting the same and Section 12 ofthe Act, the Apex Court in para.20 held as follows:“It is very important to note that a duty is cast upon theCommission to take "all such steps as it may think fit .... for thedetermination and maintenance of standards of teaching".These are very wide ranging powers. Such powers, in our view,would comprehend the power to require those who possess theeducational qualifications required for holding the post oflecturer in Universities and colleges to appear for a written test,the passing of which would establish that they possess theminimal proficiency for holding such post. The need for suchtest is demonstrated by the reports of the commissions andcommittees of educationists referred to above which take noteof the disparities in the standards of education in the variousUniversities in the country. It is patent that the holder of a post-graduate degree from one University is not necessarily of thesame standard as the holder of the same postgraduate degreefrom another University. That is the rationale of the test W.P.(C).No.22187/2012, etc.-32-prescribed by the said Regulations. It falls squarely within thescope of Entry 66 and the U.G.C. Act inasmuch as it isintended to co-ordinate standards and the U.G.C. Act is armedwith the power to take all such steps as it may think fit in thisbehalf. For performing its general duty and its other functionsunder the U.G.C. Act, the U.G.C. is invested with the powersspecified in the various clauses of S.12. These include thepower to recommend to a University the measures necessaryfor the improvement of University education and to advise inrespect of the action to be taken for the purpose ofimplementing such recommendation (clause (d).The U.G.C. isalso invested with the power to perform such other functions asmay be prescribed or as may be deemed necessary by it foradvancing the cause of higher education in India or as may beincidental or conducive to the discharge of such functions(clause (j). These two clauses are also wide enough to empowerthe U.G.C. to frame the said Regulations. By reason of S.14,the U.G.C. is authorised to withhold from a University its grantif the University fails within a reasonable time to comply withits recommendation,but it is required to do so only after takinginto consideration the cause, if any, shown by the Universityfor such failure. Section 26 authorises the U.G.C. to makeregulations consistent with the U.G.C. Act and the rules madethereunder, inter alia, defining the qualifications that shouldordinarily be required for any person to be appointed to the W.P.(C).No.22187/2012, etc.-33-teaching staff of a University, having regard to the branch ofeducation in which he is expected to give instruction (clause(e)of sub-sec.(1)); and regulating the maintenance of standardsand the co-ordination of work or facilities in Universities (cl.(g)). We have no doubt that the word 'defining' means settingout precisely or specifically. The word 'qualifications' as usedin clause (e), is of wide amplitude and would include therequirement of passing a basic eligibility test prescribed by theU.G.C. The word 'qualifications' in clause (e) is certainly widerthan the word 'qualification' defined in S.12A(2)(d), which inexpressly stated terms is a definition that applies only to theprovisions of S 12A. Were this definition of qualification, asmeaning a degree or another qualification awarded by aUniversity, to have been intended to apply throughout the Act,it would have found place in definition section, namely,Section 2.”The said paragraph will show that what is envisaged is a “passing a basiceligibility test prescribed by the UGC” to establish that they possess theminimal proficiency for holding the post. The regulations were examined inpara.21 and finally, it was held thus: “The said Regulations do not impinge upon the power ofthe University to select its teachers. The University may stillselect its lecturers by written test and interview or either. W.P.(C).No.22187/2012, etc.-34-Successful candidates at the basic eligibility test prescribed bythe said Regulations are awarded no marks or ranks and,therefore, all who have cleared it stand at the same level. Thereis, therefore, no element of selection in the process. TheUniversity's autonomy is not entrenched' upon by the saidRegulations.”The important aspects to be mentioned, going by the said declaration oflaw by the Apex Court are the following:“i) As far as the test is concerned, the successfulcandidates are awarded no marks or ranks; ii) All who have cleared the test stand at the same level;iii) There is no element of selection in the process.”The above prescriptions are quite important to understand the situation thathas arisen herein.32. The decision of the Apex Court in University GrantsCommission etc. v. Sadhana Chaudhary and others [JT 1996 (8) SC234] relied upon by the learned Standing Counsel, considered the very sameregulation and the relaxation given for appearing in the eligibility test tocertain candidates by two circulars. After the circulars were issued, aproviso was added to the regulation. It was provided that the candidateswho have submitted Ph.D thesis or passed the M.Phil examination by 31st W.P.(C).No.22187/2012, etc.-35-December, 1933 are exempted from the eligibility test for Lecturersconducted by the UGC, CSIR or similar test accredited by the UGC. Thechallenge was on the cut-off date selected by the UGC. It was held that thesame is not arbitrary or violative for Article 14 of the Constitution of Indiaand that the choice of date cannot always be dubbed as arbitrary even if noparticular reason is forthwith coming for the choice unless it is shown to becapricious or whimsical in the circumstances. The said finding is reliedupon by the learned Standing Counsel Shri S.Krishnamoorthy to support thesteps taken herein. But the context is evidently different and it may nothave application here. 33. As far as the scope of judicial review in academic matters, whichis the another contention vehemently raised by Shri S.Krishnamoorthy isconcerned, the position is well-known. In Dr.J.P.Kulshrestha and othersv. Chancellor, Allahabad University and others [(1980) 3 SCC 418], thescope of judicial review in academic matters, was explained in lucid termsin paragraphs 1, 2 and 17 thus:“1...... While legal shibboleths like “hand-off universities” andmeticulous forensic invigilation of educational organs mayboth be wrong, a balanced approach of leaving universities intheir internal functioning well alone to a large extent, but W.P.(C).No.22187/2012, etc.-36-striking at illegalities and injustices, if committed by howeverhigh an authority, educational or other, will resolve theproblem raised by counsel before us in this appeal from ajudgment of the Division Bench of the High Court.2. Once we recognise the basic yet simple proposition that noislands of insubordination to the rule of law exist in ourRepublic and that discretion to disobey the mandate of the lawdoes not belong even to university organs or other authorities,the retreat of the court at the sight of an academic body, as hashappened here, cannot be approved. On the facts and featuresof this case such a balanced exercise of jurisdiction will, if wemay anticipate our ultimate conclusion, result in the reversal ofthe appellate judgment and the restoration in substantialmeasure, of the learned Single Judge's judgment quashing theselection made by the university bodies for the posts ofReaders in English way back in 1973.”17. Rulings of this court were cited before us to hammer homethe point that the court should not substitute its judgment forthat of academicians when the dispute relates to educationalaffairs. While there is no absolute ban, it is a rule of prudencethat courts should hesitate to dislodge decision of academicbodies. But university organs, for that matter any authority inour system, is bound by the rule of law and cannot be a lawunto itself. If the Chancellor or any other authority lesser inlevel decides an academic matter or an educational question, W.P.(C).No.22187/2012, etc.-37-the court keeps its hands off; but where a provision of law hasto be read understood, it is not fair to keep the court out. InGovinda Rao's case, (1964) 4 SCR 575 at p. 586: (AIR 1965SC 491) Gajendragadkar, J. (as he then was) struck the rightnote :"What the High Court should have considered iswhether the appointment made by the Chancellorhad contravened any statutory or binding rule orordinance and in doing so; the High Court shouldhave shown due regard to the opinions expressedby the Board and its recommendations on whichthe Chancellor has acted." (Emphasis added)The later decisions cited before us proudly conform to the ruleto caution sounded in Govinda Rao. But to respect an authorityis not to worship it unquestioningly since the bhakti cult isinept in the critical field of law. In short, while dealing withlegal affairs which have an impact on academic bodies, theviews of educational experts are entitled to great considerationbut not to exclusive wisdom. Moreover, the present case is sosimple that profound doctrines about academic autonomy haveno place here.” (Emphasis supplied)This point was again reiterated in Maharashtra State Board of Secondaryand Higher Secondary Education and another v. ParitoshBhupeshkumar Sheth and others [(1984) 4 SCC 27] in para 29 thus: W.P.(C).No.22187/2012, etc.-38-“The Court should be extremely reluctant to substitute its ownviews as to what is wise prudent and proper in relation toacademic matters in preference to those formulated byprofessional men possessing technical expertise and richexperience of actual day-to-day working of educationalinstitutions and departments controlling them. It will be whollywrong for the Court to make a pedantic and purely idealisticapproach to the problems of this nature, isolated from the actualrealities and grass root problems involved in the working of thesystem and unmindful of the consequences which wouldemanate if a purely idealistic view as opposed to a pragmaticone were to be propounded.”34. In All India Council for Technical Education v. SurinderKumar Dhawan and others [(2009) 11 SCC 726] it was held that Courtwill step up if provisions of law and principle have to be interpreted,applied or enforced and the said paragraph is extracted below:“17.The role of statutory expert bodies on educationand role of courts are well defined by a simple rule. If it is aquestion of educational policy or an issue involving academicmatter, the courts keep their hands off. If any provision of lawor principle of law has to be interpreted, applied or enforced,with reference to or connected with education, courts will stepin. In Dr. J.P.Kulshreshtha v. Chancellor, Allahabad University W.P.(C).No.22187/2012, etc.-39-[1980 (3) SCC 418] this Court observed :'11. .... Judges must not rush in where eveneducationists fear to tread. ... * * *17. ... While there is no absolute bar, it is a rule ofprudence that courts should hesitate to dislodgedecisions of academic bodies.' "35. Therefore, there is no absolute bar in considering the matter ascontended by the learned Standing Counsel. The question will still bewhether any provision of law or any principle of law has been violated. 36. The decisions of the Apex Court, namely, State of U.P. v.Rafiquddin and others [AIR 1988 SC 162] (para.12) and in CentralBoard of Secondary Education and another v. Aditya Bandopadhyayand others [(2011) 8 SCC 497] explained the powers of an examiningbody. “In State of U.P's case [AIR 1988 SC 162] it was held in para 12thus:“12. There is a basic difference between an examinationheld by a college or university or examining body to awarddegree to candidates appearing at the examination and acompetitive examination. The examining body or the authorityprescribes minimum pass marks. If a person obtains theminimum marks as prescribed by the authority he is declared W.P.(C).No.22187/2012, etc.-40-successful and placed in the respective grade according to thenumber of marks obtained by him. In such a case it would beobligatory on the examining authority to prescribe marks forpassing the examination as well as for securing different gradeswell in advance. A competitive examination on the other handis of different character. The purpose and object of thecompetitive examination is to select most suitable candidatesfor appointment to public services. A person may obtainsufficiently high marks and yet he may not be selected onaccount of the limited number of posts and availability ofpersons of higher quality. Having regard to the nature andcharacteristics of a competitive examination it is not possiblenor necessary to give notice to the candidates about theminimum marks which the Commission may determine forpurposes of eliminating the unsuitable candidates. The rule ofnatural justice does not apply to a competitive examination.“In Central Board of Secondary Education's case [(2011) 8 SCC 497]The Apex Court held thus in para 42:“The duty of examining bodies is to subject the candidates to aprocess of verification/examination/testing of their knowledge,ability or skill, or to ascertain whether they can be said to havesuccessfully completed or passed the course of study ortraining or to find out whether such person is suitable for aparticular post, job or assignment. An examining body, if it is W.P.(C).No.22187/2012, etc.-41-a public authority entrusted with public functions, is requiredto act fairly, reasonably, uniformly and consistently for publicgood and in public interest.”37. We will now come to the general principles governing theabsence of power of changing rules in the midstream as laid down by theApex Court in Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC11 (para 15)], K.Manjusree v. State of Andhra Pradesh and another[(2008) 3 SCC 512] para 32 as well as Jayachandran v. High Court ofKerala [2010 (4) KLT 49]. It can be seen that in Hemani Malhotra v.High Court of Delhi [(2008) 7 SCC 11], the various legal issues wereconsidered in the light of the Apex Court decision reported inK.Manjusree v. State of Andhra Pradesh and another [(2008) 3 SCC512]. The case therein was one wherein minimum marks for viva voce wasprescribed after written test was over. It was held that the same cannot bepermitted. The Apex Court was of the view that the authority making rulesregulating selection can prescribe by rules, the minimum marks for bothwritten examination and viva voce but if the minimum marks are notprescribed for viva voce before commencement of selection process, theauthority concerned, cannot either during the selection process or after the W.P.(C).No.22187/2012, etc.-42-selection process add an additional requirement/qualification that thecandidate should also secure minimum marks in the interview. The para.15laid down the principles thus:“There is no manner of doubt that the authority making rulesregulating the selection can prescribe by rules the minimum marksboth for written examination and viva voce, but if minimum marksare not prescribed for viva voce before the commencement ofselection process, the authority concerned, cannot either during theselection process or after the selection process add an additionalrequirement/qualification that the candidate should also secureminimum marks in the interview. Therefore, this Court is of theopinion that prescription of minimum marks by the respondent atviva voce test was illegal.”In para.14 Their Lordships relied upon the decisions of the Apex Court inK.Manjusree v. State of Andhra Pradesh and another [(2008) 3 SCC512]. In the said decision in para.33 it was explained thus:"The resolution dated 30.11.2004 merely adopted theprocedure prescribed earlier. The previous procedure was not tohave any minimum marks for interview. Therefore, extending theminimum marks prescribed for written examination, to interviews,in the selection process is impermissible. We may clarify that W.P.(C).No.22187/2012, etc.-43-prescription of minimum marks for any interview is not illegal. Wehave no doubt that the authority making rules regulating theselection, can prescribe by rules, the minimum marks both forwritten examination and interviews, or prescribe minimum marksfor written examination but not for interview, or may not prescribeany minimum marks for either written examination or interview.Where the rules do not prescribe any procedure, the SelectionCommittee may also prescribe the minimum marks, stated above.But if the Selection Committee want to prescribe minimum marksfor interview, it should do so before the commencement ofselection process. If the selection committee prescribed minimummarks only for the written examination, before the commencementof selection process, it cannot either during the selection process orafter the selection process, add an additional requirement that thecandidates should also secure minimum marks in the interview.What we have found to be illegal, is changing the criteria aftercompletion of the selection process, when the entire selectionproceeded on the basis that there will be no minimum marks for theinterview."38. In Jayachandran v. High Court of Kerala [2010 (4) KLT 49],this Court relied upon the above decisions in a case where moderationmarks were awarded for selection to the post of District and Sessions Judgeunder the Higher Judicial Service Special Rules 1961 (Kerala). In para.17, W.P.(C).No.22187/2012, etc.-44-it was held thus:“ Though the rules specify the percentage of the posts to be filledup from the members of the Bar, the rules are silent about theprocedure of selection to be followed for selecting the candidatesfrom the Bar. It is too well settled in law that any activity of anyone of the organs of the State is required to be rational and non-arbitrary in a system of governance where the principle of the ruleof law is all pervasive.”In para.20, the decision of the Apex Court in K.Manjusree v. State ofAndhra Pradesh and another [(2008) 3 SCC 512] was relied upon andpara.27 of the said Judgment was quoted. In fact, the Division Benchobserved in para.25 as follows:“25. We may make it clear that it is not the case of any one ofthe petitioners that the decision of the High Court to awardmoderation lacks in bona fides. The challenge is on a differentground that such a decision is impermissible in law andinconsistent with the requirements of Arts.14 and 16 of theConstitution of India. It need not be emphasised that everybona fide decision need not necessarily be a legally rightdecision. On the other hand, a decision which is ostensiblylegal may still be liable to be declared illegal if the decision isvitiated by mala fides. The decision of the Recruitment W.P.(C).No.22187/2012, etc.-45-Committee to provide moderation, in our view, is straight inthe teeth of the decision of the Supreme Court in UmeshChandra Shukla's case referred above.”The view taken is that “it need not be emphasised that every bona fidedecision be a legally right decision.” Therefore, the introduction of newcriteria by change of the rules in the midstream was not recognised by thesaid Judgment also. Therefore, it is well settled that the introduction ofsuch a requirement after the entire selection process is over, will amount tochange in the rules of the game after the game was played, which is clearlyimpermissible according to the Apex Court in K.Manjusree v. State ofAndhra Pradesh and another [(2008) 3 SCC 512] in para 27. Thedecision of the Full Bench of this Court in Dr.Cyril Johnson v. State ofKerala and others [2009 (4) KHC 404 (FB)] is an authority for theproposition that a selection committee which is statutorily constituted isbound by the norms prescribed by the statute and the selection committeehas no jurisdiction or authority either to relax any of the norms or vary thesame. The Full Bench has elaborated the principles thus in paras.27, 32,and 39:“The selection committee which has been statutorily constituted W.P.(C).No.22187/2012, etc.-46-should follow the norms for assessing the merit of rival candidates,if such norms are laid down in the statute. The selection committeehas no jurisdiction or authority to either relax any of the norms orvary the same. If the statute which provides for the constitution ofthe selection committee does not provide for the norms for theselection committee, then, it is open to the appointing authority tolay down instructions and guidelines providing for such norms. Insuch a case, the selection committee is bound to follow suchadministrative instructions in conducting selection. In cases wherethe norms governing the selection are not laid down either in thestatutory provisions or in administrative instructions, the selectioncommittee constituted to conduct selection would not have anyinherent jurisdiction or authority to evolve its own norms forconducting the selection. If it evolves its own norms, then its actionwill be without authority and jurisdiction and selection would bevitiated. The dictum laid down in Antony P.A. V, Krishnadas M.N.,IR 2007 (1) Kerala 244, which upholds the contrary position doesnot lay down the correct law and it is hereby overruled.”39. Of course, that was a case of selection. As regards the principlesunder Article 14 of the Constitution of India is concerned, the same asexplained by the Apex Court in Asha Sharma v. ChandigarhAdministration and others [(2011) 10 SCC 86] was relied upon by thelearned counsel for the petitioners. In para.14, the principle was explained W.P.(C).No.22187/2012, etc.-47-thus:“Action by the State, whether administrative or executive, has tobe fair and in consonance with the statutory provisions and rules.Even if no rules are in force to govern executive action still suchaction,especially if it would potentially affect the rights of theparties, should be just, fair and transparent. Arbitrariness in Stateaction, even where the rules vest discretion to an authority, has tobe impermissible. The exercise of discretion, in line withprinciples of fairness and good governance, is an impliedobligation upon the authorities, when vested with the powers topass orders of administrative nature. The standard of fairness isalso dependent upon certainty in State action, that is, the class ofpersons, subject to regulation by the Allotment Rules, must beable to reasonably anticipate the order for the action that the Stateis likely to take in a given situation. Arbitrariness anddetermination have inbuilt element of uncertainty as the decisionsof the State would then differ from person to person and fromsituation to situation, even if the determinative factions of thesituations in question were identical. This uncertainty must beavoided.”40. Going by the same, there should be certainty in state action.Parties must be able to reasonably anticipate the course of the action that theState is likely to take in a given situation. In the context of this case W.P.(C).No.22187/2012, etc.-48-wherein the argument raised is that the new eligibility criteria was neverannounced, the said principle is important. 41. The principles stated by the Apex Court in State of U.P. v.Rafiquddin and others [AIR 1988 SC 162] clearly spells out thedifference between examination held by a College or University orexamining body and a competitive examination. The important observationmade therein is that it would be obligatory on the examining authority toprescribe marks in the examination as well as for securing different gradeswell in advance and that a competitive examination on the other hand isdifferent character. In a competitive examination, the emphasis will be toselect the most suitable candidates for appointment in public service and thenumber of posts may determine the requirement therein. The same is absenthere. 42. As far as the argument of the learned Standing Counsel for theUGC that the requirement of Section 12 empowers the UGC to fix astandard is concerned, the question is interlinked with the issue whetherduring the conduct of a test like this, can they exercise the said powerwithout announcing the same to the candidates. Such an empowerment willnot alone justify an action like this. The candidates were told by the W.P.(C).No.22187/2012, etc.-49-notification about the minimum marks to be obtained which are definite.Now, the aggregate of three papers have been raised to 65% for generalcandidates and other like criteria for other candidates. The parties werenever told about the same before the stage of the examination. Definitely,they were entitled to know about the same since in the scheme of theexamination itself it can be seen that the candidates will have to prepare interms of the specification in the notification itself for attaining theminimum. Actually, they have been given a surprise by prescribing 65% onthe aggregate of the three papers. Going by the adoption of such a standard,at the final stage and just before the declaration of the result, it candefinitely be seen that it affected adversely, the expectations of largenumber of candidates like the petitioners. Therefore, even if there is powerunder Section 12 to fix a standard, it ought to have been exercised in aproper, fair and reasonable manner and not whimsically. Herein, theminimum marks have been announced by the notification itself even thoughnow it is contended that it is only for putting them in a zone ofconsideration. The said minimum marks were in respect of each one of thepapers. Now an aggregate percentage in respect of all the three papers hasbeen fixed by raising it to 65%. Therefore, the minimum earlier fixed has W.P.(C).No.22187/2012, etc.-50-now merged in the aggregate marks. If it had to be adopted as a uniformcriteria, there was no difficulty to announce it at the inception itself, so thatthe candidates would have prepared for the test accordingly. Theenhancement done by the UGC is by raising the minimum obtained inrespect of each paper to a far higher level, viz. upto 65%. The last of theexercise done is by fixing it at 65% for general candidates, 60% for OBCand 55% for SC/ST/PWD as a qualifying criteria and eligibility forlectureship even going by the counter affidavit filed by the UGC.Therefore, the same which was not at all announced at any point of time,will clearly be termed as one changing the rules of the game itself at the laststage. The same will therefore be hit by Article 14 of the Constitution ofIndia.43. In terms of Regulations 2000 also, it can be seen that what isrequired is only clearance of the NET. As explained by the Supreme Courtin Raj Singh's case (1994 Supp. 3 SCC 516) what is being conducted is nota selection. Herein, the UGC has prescribed it as a qualifying criteria andeligibility for Lectureship. The qualification for Lectureship is alreadyfixed under para.1.3.3 which is only clearance of the NET and the aggregatenow shown is not prescribed by the regulation. As far as the academic W.P.(C).No.22187/2012, etc.-51-qualification is concerned, the same has been prescribed under para.1.3.3.What is envisaged as acquisition of NET is only for uniformity of standardsat the national level for prescribing a minimum eligibility standard forapplying for the post of Lecturer conducted by the University or the Collegeconcerned. There is no mark or rank and all the candidates will be treated atthe same level. They will have to face the test or interview at the stage ofselection to the post of Lecturer. The same is therefore of great importancein understanding the legal position. Therefore, clearance of NET alonebeing the minimum eligibility standard and what is attempted now in fixingan aggregate marks itself as a qualifying criteria and eligibility, it goesbeyond scope of the regulations, definitely, and will be ultra vires. Asrightly argued by the learned counsel for the petitioners, there is no powerto fix a further eligibility for Lectureship as attempted here. Even if such aneligibility condition can be prescribed that can only be by the regulationmaking power. The fixing of standards in any such context can only bethrough subordinate legislation and not by executive orders. 44. The question whether independent of any regulation, the samecould be supported, will therefore have to be considered. Herein, we willhave to understand the power as explained by the Apex Court in Raj W.P.(C).No.22187/2012, etc.-52-Singh's case (1994 Supp. (3) SCC 516). Their Lordships were of the view,after referring to Sections 12 and 26(1)(e) that the exercise done by theUGC to fix the standards will have to be understood in the light of Section12 and the sub clauses therein as well as Section 26 and expressly clause(g) of sub-section (1). Their Lordships held that “Section 26 (1)(e)authorises the UGC to make regulations consistent with the Act and Rulesinter alia defining qualifications. The word defining means setting outprecisely or specifically and the word 'qualifications' in clause (e) is of wideamplitude and would include the requirement of passing a basic eligibilitytest prescribed by the UGC. It is in that context, the regulation makingpower on the UGC was recognised. Therefore, the method of fixing thestandards, is specifically dealt with in Section 12 read along with Section26(1)(e) and (g). It is therefore clear that if the UGC wanted to have anyother qualifying criteria as eligibility for appointment as Lecturer, as nowcontended, the source of power for the same could be successfully tracedout, from out of the provisions of the Act, viz. Section 26(1)(e) whichis only the subordinate legislation making power in the form of regulationswhich is not the one undertaken here, obviously. The same is also clearfrom para 42 of Annamalai University's case {(2009) 4 SCC 590} which W.P.(C).No.22187/2012, etc.-53-reads as follows:“The provisions of the UGC Act are binding on all universitieswhether conventional or open. Its powers are very broad. TheRegulations framed by it in terms of clauses (e), (f), (g) and (h) ofsub-section (1) of Section 26 are of wide amplitude. They applyequally to open universities as also to formal conventionaluniversities. In the matter of higher education, it is necessary tomaintain minimum standards of instructions. Such minimumstandards of instructions are required to be defined by UGC. Thestandards and the coordination of work or facilities in universitiesmust be maintained and for that purpose required to be regulated.The powers of UGC under Sections 26(1)(f) and 26(1)(g) are verybroad in nature. Subordinate legislation as is well known whenvalidly made becomes part of the Act. We have noticedhereinbefore that the functions of UGC are all-perversive inrespect of the matters specified in clause (d) of sub-section (1) ofSection 12-A and clauses (a) and © of sub-section (2) thereof.”The power on the UGC to frame regulations in terms of clauses (e), (f), (g)and (h) of Section 26 (1) were held to be of wide amplitude. TheirLordships were therefore of the view that subordinate legislation as iswellknown when validly made becomes part of the Act. 45. Herein, what we find under the regulation is that the candidateswill have to clear NET. It is not prescribed in the regulation that to make W.P.(C).No.22187/2012, etc.-54-them eligible for appointment as Lecturer, they should obtain 65%, 60%and 55% in the NET. The prescription herein is different from fixing a cutoff mark for passing a test since what is attempted is a qualifying criteria ofeligibility, as pointed out in the counter affidavit.46. Learned Standing Counsel, Shri Krishnamoorthy while justifyingthe fixing of aggregate marks as 65%, 60% and 55%, submitted that it wasdone by analysing the table of performance of each candidate, in whichthe teaching/research aptitude of candidate, reasoning ability,comprehension, divergent thinking and in connection with the subjectsselected by the candidates for maintaining the standard of education. It wassaid that after every examination, the standard of performance is examinedby a committee, duly constituted for the said purpose. Upto 2011 thecommittee recommended to reduce the percentage of marks by 5%. It issubmitted that this year the Committee recommended to fix the aggregatesince all the papers were objective type and negative marks were also takenaway. The said exercise is sought to be justified as one wherein the UGC isempowered to maintain the standard in the education system and thataccordingly they have got the power to do the same. It was also said thatthe same can be done only after examination. In fact, it was also submitted W.P.(C).No.22187/2012, etc.-55-that more than two lakhs of candidates have secured the minimum marksand were in the zone of consideration and therefore to maintain thestandard, a higher aggregate was fixed.47. Evidently, as far as the clearance of the test is concerned, goingby the decision of the Apex Court in Raj Singh's case (1994 Supp. (3) SCC516) it is not a selection and what is of importance to notice is that what isrequired is only passing of the test. Therefore, as rightly contended by thelearned counsel for the petitioners, it is not a case where like an appointingauthority they will have to fix a cut off mark after finding out therequirement, going by the number of posts and other criteria at the finalstages of selection. The selection to the post of Lecturer, as already noticed,is to be done by the University or the colleges as the case may be, and themode also is prescribed by them. As far as NET is concerned, it wasoriginally fixed as evident from the reports of various committees and thedecision of the Apex Court in Raj Singh's case (supra), that there was adisparity in the University education between different Universities andColleges and to remove it so that local influence will be minimised andeligibility zone would become wider. This was the justification forintroducing the test. Therefore, we will have to find out whether, by W.P.(C).No.22187/2012, etc.-56-putting an aggregate of 65% as a qualifying criteria in the present manner,the same object is achieved. The answer will be definitely in the negative.How many of the candidates should be in the field of selection is not arelevant consideration at this stage since that is left to the Universities andColleges to ponder over when they are finally selecting the candidates.Therefore, the said argument cannot hold good. In fact, it is clear from theaverments in the counter affidavit that the Committee was formed asModeration Committee. Moderation is a method adopted when there arelarge number of candidates in an examination and when the answer scriptsare evaluated by different examiners, some formula will have to beevolved as the valuation of the answer scripts will depend upon thesubjectivity of the respective examiners while awarding marks. They willbe applying their own yardsticks in respect of the answer scripts. It is inthat context the method of moderation will be applied, if authorised to doso by the body concerned. In fact, learned counsel for the petitionersvehemently contended that such a Committee cannot fix up a qualificationat all for an appointment for lectureship. The said contention was raised inthe light of the absence of any empowerment under the regulations framed,as the eligibility for lectureship cannot be made in a notification for which a W.P.(C).No.22187/2012, etc.-57-separate regulation itself is necessary. Thus, it can be seen that when thesaid Committee has fixed up an eligibility for the purpose of appointmentas Lecturer without the support of the regulation, the same cannot beaccepted.48. Shri Krishnamoorthy explained that an expert body like CSIR isprescribing in the notification only minimum marks and not qualifyingmarks. The provisions under which they have acted upon like that is notevident. We need not go into such aspects to find out whether thequalifying marks now fixed is justifiable. Even if for arguments sake itcan be accepted that the UGC is not purely an examining body as contendedby the learned Standing Counsel, but while conducting the test for NETherein, the said exercise alone is being done by the standards already fixedunder the regulation. If we want to recognise any such power as iscontended now for the examining body at the final stage of examination, itwill not be possible in the light of the principles laid down by the ApexCourt that the rules of game cannot be changed at that stage. In fact, asheld by the Supreme Court in Hemani Malhotra's case {(2008) 7 SCC 11}in para 15, the authority making the rules regulating the selection canprescribe by rules the minimum marks both for written examination and W.P.(C).No.22187/2012, etc.-58-viva voce, but if minimum marks are not prescribed for viva voce before thecommencement of selection process, the authority concerned cannot eitherduring the selection process or after the selection process add an additionalrequirement/qualification that the candidate should also secure minimummarks in the interview. The exercise herein cannot be justified in the lightof the said broad legal principle. Of course, if proper regulations wereframed earlier and properly notified earlier, they could have relied upon thesame, which is totally absent here. Therefore, I am not called upon at thisstage, to declare that the UGC is not at all having a power to do so, at anytime before the notification is issued, as the argument of the learnedcounsel for the petitioners is that after the test and evaluation a furthercriteria cannot be fixed, going by the various decisions of the Apex Courtand that any further qualification can be fixed only by a regulation. Herein,as an examining body, they were justified only in fixing the minimum marksfor each paper initially for clearing NET by way of a notification.49. Learned Standing Counsel, Shri Krishnamoorthy submitted thatin the notification itself it was specified that only candidates who secureminimum required marks in each paper separately will be considered forfinal preparation of results and that the final qualifying criteria for JRF and W.P.(C).No.22187/2012, etc.-59-eligibility for lectureship shall be fixed by the UGC before declaration ofresults and therefore the candidates were really put on notice of the same.We are on the question whether the fixation of eligibility for lectureship isjustified or not. The same cannot be justified and the said prescription inthe notification will not come to the aid. Even the said prescription inregard to the final qualifying criteria was kept totally silent in thenotification, the same is also therefore relevant to consider its legal validity.50. The decision of the Full Bench in Udayan v. Kerala AgroMachinery Corporation Ltd. (2011 (3) KLT 952 – FB) relied upon by ShriKrishnamoorthy will not apply here, as it was dealing with the system ofshortlisting for a final round of selection, which is not the case here.51. Shri Krishnamoorthy, learned Standing Counsel relied upon theprinciples stated by the Apex Court in Haryana Financial Corporationand another v. Jagadamba Oil Mills & another {(2002 (3) SCC 496},Bhavanagar University v. Palitana Sugar Mill (P) Ltd. & others {(2003)2 SCC 111) and other decisions to contend that precedents will have to bejudged on the basis of the facts and legal principles deduced therefrom andtherefore divorced from the facts, there cannot be any blind approach.There cannot be any quarrel to that. But herein, we are on a general W.P.(C).No.22187/2012, etc.-60-principle laid down by various decisions of the Apex Court that the rules ofthe game cannot be changed midstream. The said principle when appliedherein, it can be seen that the action is unsupportable. The said principlehad been applied in various situations, as evident from the decisionsalready discussed, viz. Manjusree's case {(2008) 3 SCC 512}, HemaniMalhotra's case {(2008) 7 SCC 11} and Jayachandran's case (2010 (4)KLT 49). The contention that in academic matters this Court will have tokeep off its hands also cannot therefore be accepted, as the Apex Court invarious decisions held that when a principle of law has to be applied thecourt cannot retreat at the sight of the academic body ( Dr.J.P.Kulshrestha's case – {(1980) 3 SCC 418} and later decisions. Any decisionof the academic body therefore can be subjected to such a scrutiny tounderstand the legal validity of the same.52. Shri Krishnamoorthy has also relied upon a recent judgment ofthe Apex Court in Civll Appeal Nos.4959-4962 of 2011. Therein, theminimum qualifying marks for viva voce was introduced just two or threedays before the commencement of the oral tests though it was not stipulatedin the advertisement issued by the Public Service Commission. The matterwas examined in the light of the statutory recruitment rules itself, wherein W.P.(C).No.22187/2012, etc.-61-Rule 12(3) specifically empowered the Commission to fix the qualifyingmarks to be obtained by a candidate in the viva voce and personality test.(para 9 of the judgment). In the light of the said provision under therecruitment rules, the Apex Court examined the question. In para 21 it washeld as follows:“ It is necessary to bear in mind that no objection can be taken tothe fixing of the cut off marks separately for the viva voce as thatis the mandate of the statutory rules governing the recruitment.What alone can be objected to is the omission to specify the cutoff mark for viva voce in the advertisement and fixing it later on.”In para 31, after considering the contentions, it was held as follows:“Now coming back to the facts of the case in hand, though therules framed under Article 309 of the Constitution governing theselection process mandated that there would be minimumqualifying marks each for the written test and the oral interview,the cut off mark for viva voce was not specified in theadvertisement. In view of the omission, there were only twocourses open. One, to carry on with the selection process and tocomplete it without fixing any cut off mark for the viva voce andto prepare the select list on the basis of the aggregate of marksobtained by the candidates in the written test and the viva voce.That would have been clearly wrong and in violation of thestatutory rule governing the selection. The other course was to fix W.P.(C).No.22187/2012, etc.-62-the cut off mark for the viva voce and to notify the candidatescalled for interview about it. This is the course that theCommission followed. This was in compliance with the rules andit did not cause any prejudice to any candidate either. We, thus,see no illegality at all in the selection process.”Therefore, evidently it is not a like case and the exercise was justified in thelight of the recruitment rules. Herein, the Regulations do not confer anysuch power to fix a higher criteria and eligibility at the final stage of theexamination itself. Therefore, the said principles may not help to advancethe contentions of the learned Standing Counsel. One of the contentionsraised by Shri Krishnamoorthy is that many of the candidates in differentparts of the country have fairly accepted the condition and the petitioners inthese writ petitions alone have approached for an adjudication by filing writpetitions. But that cannot be a yardstick in assessing the legality of the actwhen a direct challenge is made on the basis of the settled legal principles.53. Therefore, the fixing of the higher aggregate marks as 65%, 60%and 55% for three categories, that too just before the announcement of theresult, cannot be justified as the same is not supportable in law in the lightof the principles already discussed. What was absent in the regulationcannot be introduced at the fag end of the examination, just before the W.P.(C).No.22187/2012, etc.-63-announcement of the result, whatever may be the justification for the same.54. In the light of the above, the writ petitions are allowed. Theproceedings fixing the category-wise qualifying criteria for Lectureshipeligibility impugned in the writ petitions, is quashed. It is declared that allthe petitioners who have obtained the separate minimum prescribed in thenotification for Papers I, II and III, have cleared the NET and appropriatefollow up actions will be taken to issue certificates to them within onemonth from the date of receipt of a certified copy of this judgment. Nocosts.(T.R.RAMACHANDRAN NAIR, JUDGE) kav/ W.P.(C).No.22187/2012, etc.-64-W.P.(C).Nos. 22187, 22267, 22280,22376, 22490, 22518, 22586, 22647,22677 , 22797, 22814, 22823,22824, 22837, 22839, 22840,22858, 22876,22888, 22939, 22946,22959, 22960, 22985, 22994,22995, 22999, 23009, 23013, 23020, 23044, 23075,23095, 23155, 23171, 23210,23230, 23261, 23262, 23272, 23291,23305, 23308, 23312, 23382, 23392,23411, 23416, 23458, 23468, 23486,23487, 23493, 23496, 23535,23584, 23617, 23634, 23644, 23653,23673, 23682, 23698, 23699, 23700,23702, 23712, 23717, 23722, 23739,23746, 23759, 23770, 23821, 23851,23861, 23884, 23897, 23905, 23912,23914, 23933, 23937, 23941, 23942,23947, 23951, 23952, 23961, 23983,23984, 23985, 24000, 24002, 24005,24006, 24007, 24009, 24010, 24012,24015, 24026, 24030, 24046, 24056,24059, 24061, 24062, 24069, 24083,24099, 24106, 24112, 24114, 24119,24134, 24138, 24141, 24143, 24148,24160, 24172, 24176, 24178, 24189,24197, 24207, 24215, 24216, 24237,24241, 24245, 24251, 24255, 24278,24289, 24292, 24295, 24305, 24308,24309, 24321, 24344, 24362, 24368,24378, 24408, 24414, 24416, 24425,24431, 24439, 24455, 24456, 24457,24477, 24478, 24482, 24485, 24500,24503, 24504, 24535, 24537, 24540,24556, 24565, 24580, 24592, 24596, W.P.(C).No.22187/2012, etc.-65-24600, 24602, 24606, 24613, 24659,24660, 24663, 24680, 24683, 24692,24697, 24709, 24713, 24718, 24723,24729, 24730, 24738, 24752, 24754,24758, 24766, 24774, 24776, 24785,24793, 24799, 24803, 24804, 24810,24818, 24819, 24840, 24847, 24864,24874, 24910, 24928, 24983, 25003,25021, 25023, 25030, 25032, 25035,25039, 25041, 25046, 25051, 25063,25071, 25075, 25077, 25086, 25119,25167, 25176, 25178, 25179, 25185,25189, 25190, 25191, 25204, 25217,25222, 25223, 25225, 25228, 25232,25233, 25234, 25265, 25268, 25275,25286, 25366, 25387, 25392, 25393,25404, 25414, 25415, 25416, 25437,25442, 25464, 25467, 25468, 25472,25494, 25512, 25649, 25722, 25761,25868, 25874, 25879, 25894, 25925,26043, 26065, 26218, 26221, 26302,26364, , 26468, 26527, 26545,26720, 26730, 26786, 26831, 26872,26882, 26884, 27020, 27079, 27089,27356, 27375, 27380, 27434, 27486,27558, 27603, 27701, 27877, 27927,27940, 27978, 28175, 28223, 28289,28691, 29176, 29805, 29831 and29888 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - -