Pet it ioner v. The Chancellor, Kum aon Universit y Nainit al and ot hers

“ ( i) I ssue a writ , order or direct ion in t he nat ure of cert iorari quashing t he order dat ed 19.05.2017 ( Annexure No. 18) and 112 execut ive council m inut es it em no. 14 **orZeku esa foKkfir 'kSf{kd inksa dh vgZrk ;w0 th0 lh0 jsxqys'ku 2009 i= la0 1@2000 ¼ih,l&ihVh&Qkby&I I I½ fnukad 27 vxLr 2009 }kjk iznRr 'kfDr dk iz;ksx djrs gq, fd;s x;s gSa**A ( The eligibilit y crit erion of present advert isem ent is det erm ined as per U.G.C. Regulat ion 2009 No. 1/ 2000 ( PS- PT- File- I I I ) dat ed 27/ 08/ 2009.) ( ii) I ssue a writ , order or direct ion in t he nat ure of Mandam us declared t he ult ra vires t o first line of clause I I I of subst it ut ion of st at ut e 11.02 by Kum aun Universit y/ Respondent nos. 2 & 3 by way of am endm ent dt . 20/ 07/ 2009 quot ed as here “ Holder of Ph.D. degree as on t he dat e of Not ificat ion of t hese Regulat ion.” Which is unconst it ut ional and inconform it y of U.G.C. regulat ion 2009- 10 t he writ pet it ion) . 1280/ GS/ Shiksha/ 2009 ( Annexure- 25 of no. ( iii) I ssue a writ , order or direct ion in t he nat ure of cert iorari quashing t he appoint m ent order nos. ekU;rk@ 'kS0 O;0@1468 ¼11½ and ekU;rk@ 'kS0 O;0@1468 ¼10½ dat ed 30/ 11/ 2010 t o respondent nos. 4 & 5. respondent universit y issued by ( iv) I ssue a writ , order or direct ion in t he nat ure of Mandam us direct ing t he respondent nos. 2 & 3 t o issue t he appoint m ent let t er on t he post of Assist ant Professor Sanskrit as per condit ion of advert isem ent dat ed 21/ 04.2010 and as per it s select ion and result from t he due dat e t he respondent nos. 4 & 5 has been offered t he appoint m ent .”

2. Respondent no. 4 was appoint ed by t he Com pet ent Aut horit y in Kum aon Universit y, vide order dat ed

30.11.2010. Pet it ioner challenged t he appoint m ent of respondent no. 4 as Assist ant Professor ( Sanskrit ) by filing Writ Pet it ion ( S/ B) No. 238 of 2015, which was dism issed vide order dat ed 29.06.2015. Pet it ioner t hereaft er again filed Writ Pet it ion ( S/ B) No. 210 of 2016, which was dism issed on 15.06.2016. 2 Order dat ed 15.06.2016 passed in Writ Pet it ion ( S/ B) No. 210 of 2016 is ext ract ed below reference: - “ Pray ers in t he writ pet it ion ar e as follows: “ A. pass an order / direct ion quashing t he appoint m ent of Dr. Laj j a Bhat t as Assist ant Professor Sanskrit in pursuance of evaluat ion dat ed 17- 11- 2010 ( at serial no. 22) ( Not having NET/ SLET) ( ANNEXURE NO. 05) . I nst it ut ions Affiliat ed B. pass an order / direct ion t hat t he Kum aun Universit y act as ( Minim um Qualificat ion Required For The per UGC I n Appoint m ent And Career Advancem ent Of Teacher s Universit ies ( 3rd AMENDMENT) , Regulat ion 2009 published on The Gazet t e of I ndia dat ed 17t h July 2009 ( ANNEXURE NO. 03) and appoint t he pet it ioner as Assist ant Professor Sanskrit in pursuance of evaluat ion dat ed 17- 11- 2010 ( at serial no. 01 and wait ing list no. 01) ( ANNEXURE NO. 05) along wit h all benefit s, increm ent s and em olum ent s. I t ) To C. pass an order / direct ion t hat a high level enquiry be init iat ed and culprit s be punished for forgery being done in root ed conspiracy , cor rupt ion and pursuance of deep m alpract ices various appoint m ent s of t eaching and working st aff.” t he Kum aun Universit y

2. We heard learned counsel for t he pet it ioner and Ms. Mam t a Bisht , learned counsel for r espondent no. 2.

3. We see no r eason t o give any direct ion as such. We not ice t hat , in fact , in t he writ pet it ion filed by t he pet it ioner earlier, w e declined t o int er fere on t he ground of laches. We not iced t hat t he pet it ioner has a rem edy under Sect ion 68 of t he U.P. St at e Universit ies Act . Now, apparent ly t he pet it ioner has invok ed t he said pr ovision and his com plaint is of delay . We would only observ e t hat w e w ould expect t hat t he first r espondent will t ake decision wit hout any undue delay. 4. The w r it pet it ion st ands disposed of accordingly.”

3. Pet it ioner t hereaft er subm it t ed a represent at ion t o t he Chancellor under Sect ion 68 of t he St at e Universit ies Act , 1973. The represent at ion subm it t ed by him was rej ect ed by t he Chancellor vide order dat ed 19.05.2017. I n t his writ pet it ion, pet it ioner has challenged t he order passed by t he Chancellor and has sought ot her reliefs also, which are ext ract ed above. I n his represent at ion m ade t o t he Chancellor, pet it ioner cont ended t hat respondent no. 4 was not qualified for appoint m ent as Assist ant Professor t erm s of UGC Regulat ions, as her Ph.D. degree was not as per UGC Regulat ions, 2009, t herefore, select ion and 3 appoint m ent of respondent no. 4 is bad in law. The Chancellor has considered and discussed all t he issues raised by pet it ioner in great det ail while repelling t he challenge t hrown by pet it ioner t o select ion and appoint m ent of respondent no. 4.

4. From t he order passed by Chancellor, it is revealed t hat respondent no. 4 ( Dr. Sm t . Laj j a Pant Bhat t ) was awarded Ph.D. degree in t he year 1991; while, respondent no. 5 was awarded Ph.D. degree in t he year 2008. Regarding t he challenge t hrown by pet it ioner t o t he appoint m ent of respondent no. 4 on t he ground t hat wit hout NET she is not eligible for appoint m ent as Assist ant Professor, t he Chancellor, by relying upon t he law declared by Hon’ble Suprem e Court in t he case of Kalyani Mat hivanan v. K. V. Keyaraj and ot hers, report ed in ( 2015) 6 SCC 363, has held t hat since UGC Regulat ions 2009 & 2010 were adopt ed by Governm ent of Ut t arakhand Governm ent Order dat ed 30.09.2011; while, t he respondent nos. 4 & 5 were appoint ed m uch earlier on

30.11.2010, t herefore, t he select ion and appoint m ent of respondent no. 4 do not suffer from any infirm it y. The order passed by t he Chancellor revealed t he respondent no. 4 was t he t op scorer in t he int erview wit h 90% m arks; while, pet it ioner scored only 80% m arks.

5. The reasoning given by t he Chancellor for upholding t he select ion and appoint m ent of respondent nos. 4 & 5 in paragraph no. 47 of t he im pugned order is ext ract ed below: - 4 “ 47. Therefore, I reach at t he conclusion t hat on t he dat e of issue 21.04.2010 of not ificat ion by t he Kum aon Univer sit y provisions of U.G.C. Regulat ions, 2006 wer e applicable on t he Universit ies under t he St at e according t o which for t he Assist ant Professors in t he Universit y passing of NET was com pulsory educat ional qualificat ion but t he candidat es who had obt ained Ph.D. degr ee t hey were ex em pt ed fr om NET eligibilit y. Because, on t he abov e dat e, t he educat ional qualificat ion of bot h t he abov e select ed candidat es Dr . Laj j a Bhat t and Dr. Neet a Ar ya was com plet e according t o U.G.C. Regulat ions, 2006 and Gov ernm ent Order No. 204/ XXI V ( 7) / 2007- 3( 15) 2005 dat ed 24t h April, 2007 and t he Kum aon Universit y has select ed t he above candidat es according t o t he above Gov ernm ent Order only , t here is no fault in it . I n such a sit uat ion, t he represent at ion of t he applicant Dr. Um esh Kum ar Singh is r ej ect ed.”

6. Learned counsel t he pet it ioner vehem ent ly cont ended t hat t he view t aken by t he Chancellor is erroneous and UGC Regulat ions, 2009 and 2010 becam e effect ive t he m om ent t hey were not ified and dat e of adopt ion of UGC Regulat ions by Ut t arakhand Governm ent will m ake no difference at all. I t is furt her cont ended t hat respondent nos. 4 & 5 are not eligible for appoint m ent , as t hey were not having NET and t he Ph.D. degree t hey possessed was not as per UGC Regulat ions, 2009.

7. The said cont ent ion raised on behalf of t he pet it ioner cannot be accept ed. I n t he case of Kalyani Mat hivanan v. K. V. Keyaraj ( supra) , Hon’ble Suprem e Court was dealing wit h an issue t hat in case of conflict bet ween St at e Universit y Act and UGC Regulat ions, which will prevail. Aft er considering t he ent ire law on t he subj ect , Hon’ble Suprem e Court sum m arized t he law on t he point in paragraph no. 62 of t he j udgm ent , which is ext ract ed below: - “ 62. I n view of t he discussion as m ade above, we hold:

62.1. To t he ext ent t he St at e legislat ion is in conflict wit h t he Cent ral legislat ion including subordinat e legislat ion m ade by t he Cent ral legislat ion under Ent ry 25 of t he Concurr ent List shall be repugnant t o t he Cent ral legislat ion and w ould be inoperat iv e. 5

62.2. The UGC Regulat ions being passed by bot h t he Houses of Parliam ent , t hough a subordinat e legislat ion has binding effect on t he univer sit ies t o which it applies.

62.3. The UGC Regulat ions, 2010 ar e m andat ory t o t eacher s and ot her academ ic st aff in all t he Cent ral universit ies and t o be colleges universit ies whose m aint enance expendit ure is m et by UGC. inst it ut ions deem ed t her eunder and t he

62.4. The UGC Regulat ions, 2010 ar e dir ect ory t he universit ies, colleges and ot her higher educat ional inst it ut ions under t he purview of t he St at e legislat ion as t he m at t er has been left t o t he St at e Gov ernm ent t o adopt and im plem ent t he Schem e. Thus, t he UGC Regulat ions, 2010 ar e part ly m andat or y and is part ly direct ory.

62.5. The UGC Regulat ions, 2010 having not been adopt ed by t he St at e of Tam il Nadu, t he quest ion of conflict bet ween t he St at e legislat ion and t he St at ut es fram ed under t he Cent ral legislat ion does not arise. Once t hey ar e adopt ed by t he St at e Gov ernm ent , t he St at e legislat ion t o be am ended appr opriat ely. I n such case also t her e shall be no conflict bet ween t he St at e legislat ion and t he Cent ral legislat ion.”

8. The principle laid down in paragraph nos.

62.4 & 62.5 of t he aforesaid j udgm ent , applies t o t he fact s of t he present case wit h full force. Kum aon Universit y is a St at e Universit y est ablished under St at e Universit ies Act , 1973, t herefore, UGC Regulat ions, relied by t he pet it ioner for challenging t he select ion and appoint m ent of respondent nos. 4 & 5 would not be applicable in Kum aon Universit y, unless t he said Regulat ions are adopt ed by t he St at e Governm ent . Thus, we concur wit h t he reasoning given by t he Chancellor for upholding t he select ion and appoint m ent of respondent nos. 4 & 5.

9. Learned counsel for t he respondent s have relied upon a j udgm ent rendered by Hon’ble Suprem e Court in t he case of Universit y of Kerala and ot hers v. Marlin J.N. and anot her, report ed in ( 2022) 9 SCC 389. I n t he said case, Dr. Jaykum ar, who acquired Ph.D. degree on 23.08.2006 was select ed for appoint m ent as Lect urer ( Sociology) ; while, respondent Dr. Marlin J.N. 6 was placed at t he second posit ion by t he Select ion Com m it t ee. Dr. Marlin J.N. quest ioned select ion and appoint m ent of Dr. Jaykum ar on various grounds, including t he ground t hat he had not obt ained his Ph.D. as per UGC Ph.D. Regulat ions, 2009. The writ pet it ion filed by Dr. Marlin J.N. was allowed by learned Single Judge of Kerala High Court , vide j udgm ent dat ed

01.02.2017. Division Bench of t he High Court dism issed t he appeals filed by Dr. Jaykum ar and Universit y of Kerala. Hon’ble Suprem e Court allowed t he appeals filed by t he Universit y and Dr. Jaykum ar by relying on t he UGC Regulat ions, 2016 & 2018, which were held t o be declarat ory or clarificat ory. Relevant ext ract of t he j udgm ent rendered in t he case of Universit y of Kerala and ot hers v. Marlin J.N. and anot her ( supra) reproduced below: law and t he ext ant regulat ions. “ 9. Befor e t his Court , it was argued on behalf of Dr Jayakum ar as well as t he Universit y t hat t he form er 's appoint m ent was in accordance wit h I t was em phasised t hat t he Universit y adopt ed t he 2009/ 10 UGCR only wit h effect from 23- 11- 2013. I n t hese circum st ances, when t he advert isem ent was published, as also when Dr Jayakum ar was appoint ed in August 2012, he was fully qualified and ent it led t o be appoint ed as Lect ur er . I t was furt her cont ended t hat prior t o Dr Jayakum ar's appoint m ent , it s Resolut ion dat ed 12- 8- 2010 passed in it s 471st m eet ing, clarified t hat 2009 PhD Regulat ions and 2009 UGCR wer e pr ospect iv e in nat ure, and not r et r ospect iv e: t he UGC had, t hrough “ [ A] ll candidat es who had eit her obt ained PhD on or befor e 31- 12- 2009 and such candidat es who had regist er ed t hem selv es for PhD degr ee on or befor e 31- 12- 2009 were exem pt fr om t he r equir em ent of NET.”

10. I t was argued on behalf of t he appellant t hat t he fourt h am endm ent placed t he m at t er beyond any doubt because it render ed eligible candidat es who had acquir ed t heir PhD degr ee befor e 11- 7- 2009. I n t his regard, great em phasis was placed on t he following: Com m ission “ The pr oviso pr escribed under Regulat ions 3.3.1, 4.4.1, 4.4.2, 4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in t he Universit y Grant s Appoint m ent of Teacher s and Ot her Academ ic St aff in Universit ies and Colleges and Ot her Measures for t he Maint enance of St andards in Higher Educat ion) ( 3t h Am endm ent ) Regulat ions, 2016 r egarding ex em pt ion t o ( Minim um Qualificat ions 7 t he candidat es r egist ered for PhD pr ogram m e prior t o 11- 7- 2009 shall st and am ended and be r ead as under: furt her, t he award of degr ee Provided t o candidat es regist er ed for t he MPhil/ PhD program m e prior t o 11- 7- 2009, shall be governed by t he provisions of t he t hen t he Ordinances/ bye- laws/ regulat ions exist ing inst it ut ions awarding t he degr ee and t he PhD candidat es shall be ex em pt ed from t he requir em ent of NET/ SLET/ SET for r ecruit m ent and appoint m ent of Assist ant Professor or equivalent posit ions in Universit ies/ Colleges/ I nst it ut ions subj ect t o t he fulfilm ent of t he following condit ions: ( a) PhD degree of t he candidat e awarded in r egular m ode only; ( b) Evaluat ion of t he PhD t hesis by at least t wo ext ernal exam iners; ( c) Open PhD viva v oce of t he candidat e had been conduct ed; ( d) Candidat e has published t w o research paper s fr om his/ her PhD work out of which at least one m ust be in a refereed j ournal; ( e) Candidat e has m ade at least t w o pr esent at ions in confer ences/ sem inar s, based on his/ her PhD w ork. ( a) t o ( e) as above are t o be cert ified by t he Vice- Chancellor/ Pr o ( Academ ic Affairs) / Dean ( Univer sit y inst ruct ions) .” [ Regn. 3, 2016 UGCR.] Vice- Chancellor/ Dean

11. I t was argued on behalf of Dr Merlin t hat Dr Jayakum ar was ineligible and could not have been grant ed ex em pt ion fr om t he NET qualificat ion which was essent ial under t he prevalent 2009/ 10 UGCR. I t was highlight ed t hat t he 2009 PhD Regulat ions usher ed a new rigorous academ ic fram ework for t he award of PhD degrees. I f one kept t his in m ind, t he st ipulat ion t hat only t hose candidat es who acquired t heir PhD in t er m s of t he 2009/ 10 UGCR w ere eligible for ex em pt ion fr om t aking t he NET — such a st ipulat ion was absolut e. I n ot her words, candidat es who had acquired t heir PhD in t erm s of t he 2009/ 10 UGCR wer e t he only class of candidat es who were exem pt from hav ing t o qualify t he NET. Since Dr Jayakum ar did not fall in t hat class, but had obt ained his PhD m uch earlier, t he ex em pt ion did not apply t o him . To be eligible, he had t o have t aken t he NET. I t was subm it t ed t hat Dr Merlin on t he ot her hand, w as bet t er qualified because she had passed t he NET in 1998 and had lat er obt ained a PhD. Furt her, she was working in t he Universit y of Kerala as a cont ract ual t he Universit y pr oceeded t o appoint Dr Jay akum ar and ignored her candidat ure. As bet ween t hem , she alone was qualified, whereas Dr Jayakum ar was not . I t was subm it t ed t hat t he appellant Dr Jayakum ar could not r ely upon t he resolut ion of UGC t ak en in it s 471st m eet ing. t eacher since 2001. Despit e fact ors, t w o of t hese t he

12. The learned Senior Counsel for Dr Merlin urged t hat t he UGC's r esolut ion was cont rar y t o t he expr ess t erm s of t he 2010 UGCR. This becam e t he subj ect - m at t er of cont rov er sy since t he Cent ral Governm ent had expressed it s disagreem ent wit h t he resolut ion, in a Let t er dat ed 23- 11- 2010. This cont rov ersy was discussed in P. Suseela [ P. Suseela v. UGC, ( 2015) 8 SCC 129 : ( 2015) 2 SCC ( L&S) 633 : 7 t he decision of t his Court 8 SCEC 333] . The learned counsel relied upon t hat j udgm ent t o urge t hat t his Court had cat egorically ruled t hat UGC's resolut ion t aken in it s 471st m eet ing could not pr ov ide any relief t o candidat es sim ilarly sit uat ed as Dr Jayakum ar as it was at odds wit h t he Cent ral Gov er nm ent 's dir ect iv es which had t o prevail in t erm s of t he par ent enact m ent . [ Universit y Grant s Com m ission Act , 1956 ( hereinaft er “ t he UGC Act ” ) .] The learned Senior Counsel also r elied upon t he subsequent j udgm ent in Manoj Sharm a [ St at e of M.P. v. Manoj Sharm a, ( 2018) 3 SCC 329 : ( 2018) 1 SCC ( L&S) 585] . I t was furt her argued t hat t he 2016 UGCR were expr essly prospect ive in nat ure — t hose possessing PhD qualificat ions prior t o t he cut - off dat e of 11- 7- 2009 but seeking t o benefit fr om t he 2016 UGCR had t o fulfil specific condit ions ( as m ent ioned abov e) which were absent hit hert o. I n t he sam e v ein, it was highlight ed t hat t hough UGC has t he pow er t o fram e r egulat ions wit h ret rospect ive effect [ by Sect ion 26( 3) of t he UGC Act ] t he 2016 UGCR is expr essly prospect iv e and t hat t his Court should not , by int erpret at ion, giv e it r et r ospect iv e effect , as t hese circum st ances, t her e could be no quest ion of Dr Jayakum ar seeking int o for ce aft er his appoint m ent . Having r egard t o t hese fact s, it was urged t hat t his Court should desist from int er fering wit h t he concur r ent findings of t he High Court . t he 2016 UGCR which cam e is being sought by t he appellant s. t o benefit fr om I n fr om t he UGC int roduced is evident for univ er sit y t he NET. This regulat ions pert aining

13. Fr om t he narrat ion of fact s, it is evident t hat for long, whenev er t o t eaching st aff, ex em pt ions wer e qualificat ions provided for PhD and MPhil holders from t he r equir em ent of qualifying t he successiv e changes which UGC int roduced in t he relevant regulat ions dealing wit h eligibilit y and qualificat ions for appoint m ent as Assist ant Professor s, Associat e Professors, et c. in 1993, 2000, 2002 and 2006. The 2009 PhD Regulat ions w er e t he first t im e t hat t he pedagogic cont ent of curriculum and m anner in which evaluat ion of t hesis/ viva v oce, et c. wer e spelt out . Building on t his, t he 2009/ 10 UGCR dealt w it h t he qualificat ions for appoint m ent of t eaching st aff in univer sit ies, and m ade a br eak wit h t he past inasm uch as only t hose who had earned t heir PhD in t erm s of t he 2009 PhD Regulat ions or wer e t o earn t hem under t hat r egim e wer e ent it led t o t he ex em pt ion fr om t aking t he NET.

14. This m eant t hat a large gr oup of PhD holder s ( such as Dr Jayakum ar in t his case) who had been awarded t heir doct oral degr ees prior t o 11- 7- 2009 i.e. t he cut - off dat e under t he 2009 UGCR, suddenly becam e disent it led t o claim ex em pt ion and wer e per force m ade t o appear and qualify in t he NET. The UGC becom e awar e of t his sit uat ion and by t wo r esolut ions dat ed 12- 8- 2010 and 27- 9- 2010, opined t hat since t he r egulat ions ar e prospect iv e in nat ure, all candidat es having MPhil degree on or befor e 10- 7- 2009 and all per sons who obt ained t he PhD degree on or befor e 31- 12- 2009 and had r egist er ed t hem selves for t he t his dat e, but would be awarded such degr ee PhD before subsequent ly, shall rem ain ex em pt ed fr om t he r equir em ent of NET t he purpose of appoint m ent as Lect urer/ Assist ant Professor . How ev er, as t he fact s discussed in P. Suseela [ P. Suseela v. UGC, ( 2015) 8 SCC 129 : ( 2015) 2 SCC ( L&S) 633 : 7 SCEC 333] r ev eal — t he Cent ral Governm ent did not agr ee wit h t ook place t he opinion of bet ween t he Cent ral Gov ernm ent . I t was in t he background of t hese fact s t hat t he pet it ioner in P. Suseela [ P. Suseela v . UGC, ( 2015) 8 SCC 129 : ( 2015) 2 SCC ( L&S) 633 : 7 SCEC 333] had approached t he Allahabad High Court ( as did som e ot her candidat es in ot her High Court s) . The differing decisions of t he various High Court s led t o t he UGC. Som e cor respondence t he UGC and t wo aut horit ies t he i.e. 9 appeals befor e t his Court by special leav e. I n t he bat ch of cases decided by P. Suseela [ P. Suseela v . UGC, ( 2015) 8 SCC 129 : ( 2015) 2 SCC ( L&S) 633 : 7 SCEC 333] , t he quest ion of applicat ion of exem pt ion from NET for candidat es who obt ained PhD under t he old regim e ( i.e. prior t o t he com ing int o t he force t he 2009 PhD Regulat ions) was consider ed — specially whet her t he dist inct ion bet ween pr e- and post - 2009/ 10 UGCR PhD holder s am ount ed im perm issible classificat ion, wher eby one set ( pr e- 2009) was denied ex em pt ion which t he ot her set ( post - 2009) w as ent it led t o. t o an

15. This Court in P. Suseela [ P. Suseela v. UGC, ( 2015) 8 SCC 129 : ( 2015) 2 SCC ( L&S) 633 : 7 SCEC 333] ruled t hat since t he Cent ral Governm ent was t he final aut horit y under t he UGC Act , it had t he final say wit h regard t o how t he 2009/ 10 UGCR were going t o operat e. I t was held t hat t he regulat ions had t o be const rued in such a m anner t hat only t hose acquiring t heir PhD degr ee or aft er 11- 7- 2009 in t erm s of t he 2009 PhD Regulat ions wer e ent it led t o t he ex em pt ion.

16. The fact s of t his case would r ev eal t hat t he select ion pr ocess was com plet ed in 2012. Ther e is no doubt t hat at t hat st age, t he 2009 PhD Regulat ions and 2009/ 10 UGCR wer e in for ce. Yet t he Universit y appoint ed Dr Jayakum ar by applying t he exist ing st andards as underst ood by it . According t o t he Universit y , t he 2009/ 10 UGCR was incorporat ed in it s st at ut e only in 2013. I n t he opinion of t his Court , t hat det ail is irrelevant . What is undeniable is t hat lik e Dr Jayakum ar, t her e ar e perhaps hundreds of ot her PhD candidat es who had secured t heir degr ees prior t o t he 2009 PhD Regulat ions and who were, t ill t he 2009/ 10 UGCR wer e brought int o force, ent it led t o claim exem pt ion fr om NET in ev ery select ion for any t eaching vacancy in any universit y in I ndia. This st at e of affairs led t he UGC t o issue clarificat ions, which t he Cent r al Gov er nm ent did not agree t o. The appellant Dr Jayakum ar fell wit hin t hat cat egory of PhD holder s for whom t he UGC int ended t o soft en t he rigours of t he 2009/ 10 UGCR. How ev er, lack of appr oval by t he Cent ral Governm ent led t o lit igat ion which culm inat ed in P. Suseela.

17.P. Suseela appears facially, t o adv ersely clinch t he issue wit h respect t o pr e- 2009 PhD holder s. The UGC perhaps realised t he hardship which t hey had t o endure ( wit h m any of t hem ev en appoint ed in various universit ies on account of t he r esolut ion adopt ed in UGC's 471st m eet ing on 12- 8- 2010) , and t her efor e am ended t he Regulat ions once m ore ( 2016 UGCR) , which read as follow s: ( Minim um Com m ission “ 3. The pr oviso pr escribed under Regulat ions 3.3.1, 4.4.1, 4.4.2, 4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in t he Universit y Grant s appoint m ent of t eacher s and ot her academ ic st aff in Universit ies and Colleges and ot her m easures for t he ( 3t h m aint enance of st andards Am endm ent ) Regulat ions, 2016 r egarding ex em pt ion t o t he candidat es r egist ered for PhD pr ogram m e prior t o 11- 7- 2009 shall st and am ended and be r ead as under: in higher educat ion) qualificat ions furt her, t he award of degr ee Provided t o candidat es regist er ed for t he MPhil/ PhD program m e prior t o 11- 7- 2009, shall be governed by t he provisions of t he t hen exist ing Ordinances/ Bylaws/ Regulat ions of t he I nst it ut ions awarding t he degree and t he PhD candidat es shall be ex em pt ed fr om recruit m ent and appoint m ent of Assist ant Professor or in Universit ies/ Colleges/ inst it ut ions equivalent posit ions t he r equirem ent of NET/ SLET/ SET 10 subj ect t o t he fulfilm ent of t he following condit ions …” v ( em phasis supplied)

18. The int ent ion of t he UGC t o prot ect t he pre- 2009 PhD holder s, who m ay hav e been appoint ed in v arious univ er sit ies and t aught for m any y ear s, is evident ly clear in t he language adopt ed. To m ake t he int ent ion ev en clear er , t he 2018 UGCR, published on 18- 7- 2018, bifur cat ed t he pre- and post - 2009 PhD holder s int o t w o groups, and allow ed bot h ex em pt ion fr om t aking t he NET, as follows: “ I . The Nat ional Eligibilit y Test ( NET) or an accr edit ed t est ( St at e Lev el Eligibilit y Test SLET/ SET) shall rem ain t he m inim um eligibilit y for appoint m ent of Assist ant Professor t hese and equivalent posit ions wherev er provided t he Regulat ions. Furt her, SLET/ SET shall be valid as m inim um t o r ecr uit m ent Universit ies/ Colleges/ I nst it ut ions t he respect iv e st at e only: dir ect eligibilit y in accordance wit h Provided t hat candidat es who hav e been aw arded a PhD degr ee t he Universit y Grant s Com m ission ( Minim um St andards and Procedure for Award of MPhil/ PhD Degree) Regulat ion, 2009, or t he Universit y Grant s Com m ission ( Minim um St andards and Procedure for Award of MPhil/ PhD Degr ee) Regulat ion, 2016, and t heir subsequent am endm ent s fr om t im e t o t im e, as t he case m ay be, shall be ex em pt ed fr om t he requir em ent of t he m inim um recruit m ent and appoint m ent of Assist ant Pr ofessor or any equivalent posit ion in any Univer sit y, College or I nst it ut ion: of NET/ SLET/ SET condit ion eligibilit y Ordinances/ Bye- laws/ Regulat ions Provided furt her t hat t he award of degr ee t o candidat es regist er ed for t he MPhil/ PhD program m e pr ior t o 11- 7- 2009, shall be gov erned by t he pr ovisions of t he t hen exist ing t he I nst it ut ions awarding t he degree. All such PhD candidat es shall be ex em pt ed fr om t he requir em ent of NET/ SLET/ SET for r ecruit m ent and appoint m ent of Assist ant Professor or equivalent posit ions in Univer sit ies/ Colleges/ I nst it ut ions subj ect t o t he fulfilm ent of t he following condit ions…” ( em phasis supplied)

19. This Court did not have t he benefit of exam ining t hese am endm ent s t o t he r egulat ions in P. Suseela or Manoj Sharm a To const rue t hem as applying only prospect ively, would give rise t he t o an absurdit y, and defeat am endm ent was prom ulgat ed. The m anner of int erpr et at ion of am endm ent s, wher e t he language adopt ed gives clear infer ence of r et r ospect iv e applicat ion, was det erm ined by t his Court in Rafiquennessa v. Lal Bahadur Chet ri , which pert ained t o t he bar on evict ion of t enant s brought about ret r ospect iv ely by an am endm ent : t he purpose for which “ 9. … I n order t o m ak e t he st at em ent of t he law r elat ing t o t he r elevant rule of const ruct ion which has t o be adopt ed in dealing wit h t he effect of st at ut ory pr ovisions in t his connect ion, we ought t o add t hat ret rospect ive operat ion of a st at ut ory provision can be infer r ed even in cases wher e such r et roact iv e operat ion appears t o be clearly im plicit in t he provision const rued in t he cont ext wher e it occurs. I n ot her words, a st at ut ory provision is held t o be r et r oact iv e eit her when it is so declar ed by expr ess t erm s, or t he int ent ion t o m ake it ret roact ive clearly 11 follow s fr om t he relevant words and t he cont ext in which t hey occur.” This int erpr et at ion has wit hst ood t he t est of t im e, and was upheld in t he decision of Darshan Singh v. Ram Pal Singh which succinct ly st at ed : ( SCC p. 213, para 37) “ 37. … court s will const rue a provision as conferring power t o act r et r oact iv ely when clear w ords ar e used.”

20. Furt her, Bench of declar at ory law and observ ed : ( SCC p. 49, par a 39) in Shyam Sunder v . Ram Kum ar , a Const it ut ion t he scope and am bit of a t his Court discussed law, requir es t he pr evious “ 39. Last ly, it was cont ended on behalf of t he appellant s t hat t he am ending Act wher eby new Sect ion 15 of t he Act has been subst it ut ed is declarat ory and, t her efor e, has ret roact ive oper at ion. Ordinarily when an enact m ent declar es t o be giv en ret roact ive effect . The funct ion of a declarat or y st at ut e is t o supply an om ission or t o explain a previous st at ut e and when such an Act is passed, it com es int o effect when t he previous enact m ent was passed. The legislat ive power t o enact law includes t he power t o declar e w hat was t he previous law and when such a declarat ory Act is passed, t o be ret rospect iv e. Mer e invariably absence of use of in an Act explaining what was t he law before m ay not appear t o be a declar at ory Act but if t he court finds an Act as declar at ory or explanat ory , it has t o be const rued as r et r ospect iv e. Conversely wher e a st at ut e uses t he word “ declar at ory” , t he words so used m ay not be sufficient t o hold t hat t he st at ut e is a declarat ory Act as words m ay be used in order t o bring int o effect new law.” t he word “ declarat ion” it has been held

21. The respondent s her ein had subm it t ed t hat it was not t he UGC's int ent ion t o give r et r ospect iv e effect t o t he 2016 UGCR, ev en t hough t he UGC had t he pow er t o do so under Sect ion 26( 3) of t he UGC Act . I t was addit ionally ur ged t hat in such circum st ances, t he cour t should not int erpr et t he am endm ent s so as t o confer such benefit s ret rospect ively , especially t o pending proceedings.

22. This Court is unper suaded by such cont ent ions. I n sit uat ions such as t hese, a r et rospect iv e r est orat ion of right s which had earlier been t ak en away , will cert ainly affect pending proceedings — how ev er , it is t he dut y of t he court s, whet her t rying original proceedings or hearing an appeal, t o t ak e not ice of t he change in law affect ing pending act ions and t o giv e effect t o t he sam e. I f on such considerat ion, it is held by t he court t hat an am endm ent speaks a language which expr essly or by clear int endm ent t akes in even pending m at t er s, t he court of first inst ance as w ell as t he court of appeal m ust have regard t o t he int ent ion so expr essed, and t he court of appeal m ay give effect t o such a law even aft er t he j udgm ent of t he court of first inst ance. is declarat ory, 23. When an enact m ent or an am endm ent curat ive or clarificat ory, im pelled by a felt need t o m ake clear what was always int ended, such am endm ent is usually m eant t o operat e fr om an ant ecedent dat e, or t o cov er ant ecedent ev ent s. This posit ion was clarified in CI T v. Shelly Product s wher e t his Court , while int erpret ing an am endm ent , held t hat : ( SCC p. 478, para 38) “ 38. … I t seek s t o clarify t he law so as t o r em ov e doubt s 12 leading t o t he court s giving conflict ing decisions, and in sev eral cases direct ing t he Rev enue t o refund t he ent ire am ount of incom e t ax paid by t he assessee wher e t he Revenue was not in a posit ion t o fram e a fresh assessm ent . Being clarificat ory t o be ret rospect ive, in t he fact s and circum st ances of t he case. I t is well- set t led t hat t he legislat ure m ay pass a declarat ory Act t o set aside what t he legislat ur e deem s t o have been a j udicial er ror in t he int erpret at ion of st at ut e. I t only seeks t o clear a m eaning of a provision of t he principal Act and m ake explicit t hat which was already im plicit .” it m ust be held in nat ure

24. Likewise, in Zile Singh v. St at e of Har yana , t his Court , St at ut ory quot ed I nt erpr et at ion ( 9t h Edn.) , and applied rule of const ruct ion : ( SCC p. 9, para 14) Singh's Principles t he relevant G.P. “ 14. … I f a new Act is “ t o explain” an earlier Act , it w ould be wit hout obj ect unless const rued ret rospect iv e. An explanat ory Act is generally passed t o supply an obvious om ission or t o clear up doubt s as t o t he m eaning of t he previous Act . I t is well set t led t hat if a st at ut e is curat ive or m er ely declarat ory of r et r ospect iv e operat ion is generally int ended. … An am ending Act m ay be purely declarat or y t o clear a m eaning of a provision of t he principal Act which w as alr eady im plicit . A clarificat ory am endm ent of t his nat ure will have r et r ospect iv e effect .” t he previous

25. Anot her argum ent raised by t he r espondent was t hat t his Court 's decision in Manoj Sharm a squar ely held against t he appellant s. We disagr ee. I n Manoj Sharm a , t he respondent s had obt ained MPhil degr ees under dist ance educat ion pr ogram s, which was de- r ecognised by t he 2009 PhD Regulat ions. The Madhya Pradesh High Court held t hat such de- r ecognit ion was prospect iv e in nat ure, and t heir MPhil degrees wer e not r ender ed ineffect iv e, which was upheld by t his Court . As far as t he issue of applicat ion of 2009 UGCR was concerned, t he sam e was rest rict ed t o only MPhil degree- holder s, wherein t he 2009 UGCR rem ov ed t he NET ex em pt ion grant ed for MPhil degree- holders, and ret ained it only for PhD holders in accordance wit h 2009 PhD Regulat ions. Again, t his Court was not afforded t he opport unit y t o analyse t he 2016 or 2018 UGCR, as t hose were not raised befor e t his Court ) . Thus, w e find lim it ed applicabilit y of Manoj Sharm a t o t he pr esent case. it ( t he respondent s were unrepr esent ed before PhD) t he NET was perhaps pr em ised on

26. The logic pervading all t he versions of t he UGCR from 1993- 2018 ( as discussed above) t o exem pt MPhil/ PhD holder s from t he qualifying underst anding t hat such a doct orat e in one's chosen subj ect , involving year s of st udy , would render a gr eat er underst anding of t he subj ect com par ed t o m ost ot her candidat es t aking t he NET who have only obt ained a Mast er 's degree. Such qualificat ion ( MPhil a prov en pr oficiency of t he candidat e in t he subj ect or discipline concerned. This is apparent fr om t he m inim um qualificat ion requir em ent s of differ ent posit ions as well, for e.g. while a Mast er's degr ee t he post of Assist ant Pr ofessor , a PhD is required for apply ing t o t he post of Associat e Pr ofessor onwards. [ See Regn. 4.1, 2018 UGCR, applicable t o all disciplines of Art s, Com m er ce, Hum anit ies, Educat ion, Law, Social Sciences, Sciences, Languages, Library Science, Physical Educat ion, Journalism & Mass Com m unicat ion.] To t he 2018 UGCR prospect ively would im ply t hat a pre- 2009 PhD holder 's appoint m ent would be for applicat ion undoubt edly is sufficient int erpr et awarded t o 13 render ed illegal, and aft er having t aught for sev eral years, he/ she w ould lose his/ her seniorit y and all accrued benefit s and would now have t o t ak e t he NET in order t o t each — which is clearly unwarrant ed. This Court t hat Dr Jayakum ar's appoint m ent is prot ect ed by t he 2016 UGCR, which is applicable r et r ospect ively. t her efor e, holds

27. Thus, t he appeals are allow ed. The im pugned j udgm ent is set aside, and all applicat ions are disposed of accordingly. Ther e will be no order as t o cost s.”

10. Learned counsel for respondent nos. 4 & 5 cont ended t hat t he challenge t hrown by pet it ioner t o t he appoint m ent of respondent nos. 4 & 5 suffers from delay and laches and t here is no explanat ion offered for such long delay in t he writ pet it ion. They subm it t hat t he first writ pet it ion was filed by t he pet it ioner five years aft er select ion and appoint m ent of respondent nos. 4 & 5 and t his writ pet it ion is filed aft er m ore t han seven years of t he appoint m ent given t o respondent nos. 4 & 5. Thus, t hey subm it t hat t he writ pet it ion is liable t o be dism issed on t he ground of delay and laches alone.

11. This Court finds som e subst ance in t he said cont ent ion. I t is set t led posit ion in law t hat challenge t o appoint m ent / prom ot ion given t o a person on a part icular post has t o be m ade wit hin a reasonable t im e and pet it ioner t he t im e challenged t he appoint m ent of respondent no. 4, aft er five years in

2015. I n t he case of Meena Sharm a v. St at e of J&K, ( 2020) 15 SCC 648, Hon’ble Suprem e Court held as under: - t he appellant on 3- 12- 2007, “ 17. I n assessing t he rival subm issions, t he cent ral aspect of t he case which needs t o be em phasised is t hat aft er t he appoint m ent t o her appoint m ent was four y ear s lat er in t he w rit pet it ion of 2011. The fift h respondent filed a writ pet it ion earlier in 2009, but chose not t o t o challenge her appoint m ent . Though t he fift h respondent claim s t hat she w as unaware of t he t his explanat ion cannot be appoint m ent of t he appellant or t he appellant , first challenge im plead t he 14 accept ed for t he reason t hat t he select list was annex ed at Annexure A- 4 t o t he fir st writ pet it ion. A diligent enquiry would have revealed t hat t he appellant had been appoint ed in t he m eant im e. The appellant was appoint ed aft er t he first t w o candidat es who had been appoint ed as t eaching guides under t he RET Schem e resigned from t he posit ion. The four- y ear delay on t he part of t he fift h respondent in cont est ing t he appoint m ent of t he appellant disent it led her t o claim any relief.”

12. Sim ilarly, in t he case of Sankar Mondal v. St at e of W.B., 2022 SCC OnLine SC 1800, Hon’ble Suprem e Court has held as under: - “ 6. I n our view , in a recruit m ent process, a candidat e cannot be perm it t ed t o appr oach for r edr essal, how soever m ay be t he genuineness of t he grievance, at any st age of t im e as t her e has t o be a closur e t o t he process of r ecruit m ent . I n case of an advert isem ent dat ed 1999, t he appellant cannot be perm it t ed t o plead t hat he was wait ing for sev en long y ears for get t ing an appoint m ent let t er and t hen woke up t o file t he O.A. befor e t he St at e Adm inist rat ive Tribunal. This it self is a gr ound t o non- suit t he appellant ” .

13. Now, com ing back t o t he fact s of t he present case. Respondent no. 4 was awarded Ph.D. degree in

1991. The am endm ent s brought about by UGC in t he Regulat ions in t he year 2016 & 2018, which were considered and discussed by Hon’ble Suprem e Court in paragraph no. 17 & 18 of t he j udgm ent rendered in Universit y of Kerala and ot hers v. Marlin J.N. and anot her ( supra) reveals t hat UGC relaxed t he condit ions of 2009 Regulat ions for candidat es who have obt ained Ph.D. degree before 2009. Hon’ble Suprem e Court held t hat t he am endm ent s m ade in t he UGC Regulat ions 2016 and 2018 are declarat ory or clarificat ory, which shall operat e from an ant ecedent dat e t o cover ant ecedent event s.

14. Mr. Anil Kum ar Joshi, learned counsel appearing for t he pet it ioner, however, placed reliance upon a j udgm ent rendered by Hon’ble Suprem e Court in t he case Gam bhirdan K. Gadhvi v. St at e of Guj arat , 15 report ed in ( 2022) 5 SCC 179. Paragraph nos. 29 & 50 of t he said j udgm ent , on which heavy reliance was placed, are ext ract ed below: - t he sam e and get t ing Cent ral t he ext ent of 80% of “ 29. I t is not in disput e t hat t he SP Univ er sit y is r eceiving Cent ral financial assist ance under t he Schem e and it is included in t he St at e Univer sit ies r eceiving Cent ral financial assist ance as per Sect ion 12( b) of t he UGC Act , 1956. t he UGC Schem e and Ther efor e, having adopt ed im plem ent ed financial assist ance t he m aint enance t o expendit ure, t he St at e Gov ernm ent and t he SP Universit y are bound by t he UGC Regulat ions, 2010. The UGC Regulat ions, 2010 ar e superseded by t he UGC Regulat ions, 2018. How ev er, t he eligibilit y crit eria for t he post of Vice- Chancellor and t he const it ut ion of t he Search Com m it t ee for appoint m ent of a Vice- Chancellor rem ains t he sam e. Ther efor e, t he universit ies t hereunder including t he SP Universit y ar e bound t o follow UGC Regulat ions, 2010 and UGC Regulat ions, 2018. t he St at e of Guj arat and

50. I t cannot be disput ed t hat t he UGC Regulat ions ar e enact ed by t he UGC in ex er cise of pow er s under Sect ions 26( 1) ( e) and 26( 1) ( g) of t he UGC Act , 1956. Ev en as per t he UGC Act ev ery rule and regulat ion m ade under t he said Act , shall be laid befor e each House of Parliam ent . Ther efor e, being a subordinat e legislat ion, UGC Regulat ions becom es part of t he Act . I n case of any conflict bet ween t he St at e legislat ion and t he Cent ral legislat ion, Cent ral legislat ion shall prevail by applying t he rule/ principle of repugnancy as enunciat ed in Art icle 254 of t he Const it ut ion as t he subj ect “ educat ion” is in t he Concurrent List ( List I I I ) of t he Sevent h Schedule t o t he Const it ut ion. Therefore, any appoint m ent as a Vice- Chancellor cont rary t o t he provisions of t he UGC Regulat ions can be said t o be in violat ion of t he st at ut ory pr ovisions, war rant ing a writ of quo war rant o.”

15. The j udgm ent relied by Mr. Anil Kum ar Joshi is dist inguishable on fact s; while, t he j udgm ent rendered in t he case of Universit y of Kerala and ot hers v. Marlin J.N. and anot her ( supra) is direct ly on t he point , t herefore, in view of t he enunciat ion of law m ade in t he case of Universit y of Kerala and ot hers v. Marlin J.N. and anot her ( supra) , t his Court do not find any reason t o int erfere wit h t he order passed by Chancellor. Select ion and appoint m ent of respondent nos. 4 & 5 also cannot be fault ed in view of reasons indicat ed above. 16

16. Thus, t he writ pet it ion fails and is dism issed. No order as t o cost s. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ M A N OJ K UM A R TI W A RI , J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A SH I SH N A I TH A N I , J. Dt : 24.03.2025 Nav in NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e44 03d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095 C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA 17