07 February, 2013

Main Points of Kerala High court Judgements









Justice T.R. RAMACHANDRAN NAIR (17/12/2012)

In the light of the above, the writ petitions are allowed. The proceedings fixing the category-wise qualifying criteria for Lectureship eligibility impugned in the writ petitions, is quashed. It is declared that all the petitioners who have obtained the separate minimum prescribed in the notification for Papers I, II and III, have cleared the NET and appropriate follow up actions will be taken to issue certificates to them within one month from the date of receipt of a certified copy of this judgment.


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Justice P.R.RAMACHANDRA MENON
(1/1/2013)

As mentioned herein before, the verdict passed by the learned Single Judge is rather declaratory in nature. It has been held by the Apex Court that, if the verdict is of declaratory character, it shall be made applicable to all who are similarly situated; irrespective of the fact whether they are parties to the verdict or not. This is reported in Ashwani Kumar and others v. State of Bihar and others (1997(2) SCC 1). Since the petitioners seek for the benefit of such declaratory judgment, this Court does not find any reason to take a different course.

Case Status of Chennai HC and Writ petiton Number 33798/2012



CHENNAI COURT
CASE STATUS INFORMATION SYSTEM
Case Status:Disposed
Status Of:WRIT PETITION
Case No.:33798
Year :2012
Petitioner :B.GOPINATH
Respondent :THE UNIVERSITY GRANTS
Pet's Advocate :M/S.K.RAJASEKARAN
Res's Advocate :PVT NOTICE PERMITTED TO
Category :Education
Last Listed on: No Date Mentioned
Case Updated on :Feb 4 2013

Kerala High Court Writ Petitions Numbers First Judgement



Kerala High Court Writ Petitions Numbers First Judgement


T.R.RAMACHANDRAN NAIR, J.
- - - - - - - - - - - - - - - - - - - - - - - - - -
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, 22994, 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,
2482, 24485, 24500, 24503, 24504, 24535, 24537, 24540, 24556, 24565,
24580, 24592, 24596, 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, 25975, 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, 25442, 25464, 25467,
25468, 25472, 25494, 25512, 25649, 25722, 25761, 25868, 25874, 25879,
25894, 25925, 26043, 26065, 26218, 26221, 26302, 26364, 26437, 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 and 29888 of 2012
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DATED THIS THE 17th DAY OF DECEMBER, 2012

All news related to UGC NET June 2012




2.UGC-NET cut-off: role of north Indian lobby alleged
http://www.thehindu.com/news/states/kerala/ugcnet-cutoff-role-of-north-indian-lobby-alleged/article3951290.ece

3.Chandy writes to Kapil Sibal
http://www.thehindu.com/todays-paper/tp-national/tp-kerala/chandy-writes-to-kapil-sibal/article4008109.ece

4.UGC told not to destroy answer sheets of NET
http://www.thehindu.com/news/states/kerala/ugc-told-not-to-destroy-answer-sheets-of-net/article4006604.ece

5.UGC norms for NET declared illegal by Kerala High Court
http://newindianexpress.com/states/kerala/article1383563.ece

6.Kerala High Court quashes new UGC marks criteria in lecturers’ test

http://www.thehindu.com/education/college-and-university/kerala-high-court-quashes-new-ugc-marks-criteria-in-lecturers-test/article4210497.ece

7.Order’s benefit for all eligible candidates: court

8.High court's last chance for University Grants Commission to name National Eligibility Test criteria
http://articles.timesofindia.indiatimes.com/2013-01-08/nagpur/36216041_1_ugc-notification-ugc-officials-three-papers

9.UGC plea against verdict on NET criteria
http://www.thehindu.com/todays-paper/tp-national/tp-kerala/ugc-plea-against-verdict-on-net-criteria/article4293096.ece

11.Students from Maharashtra move high court against change in NET eligibility
http://articles.timesofindia.indiatimes.com/2013-01-17/news/36393488_1_omr-sheets-high-court-eligibility

12.NET: court declines stay (23/01/2013)
http://www.thehindu.com/todays-paper/tp-national/tp-kerala/net-court-declines-stay/article4334650.ece

UGC NET June 2012:Social Injustice against common law and academic community

In June 2012 the first time, NET was conducted in objective mode for all three papers in two sessions. Till then, the third paper in descriptive format was not favored by many. However, the relief over replacement of the descriptive format with multiple-choice questions has turned out to be short-lived.

The result was published in Sept 18,2012 and they change the criteria after four days of the publication of the result . UGC coming out with a last minute specification that an aggregate of 65 per cent in three papers was necessary for qualification for general category candidates. The qualifying minimum was fixed at 60 and 55 per cent for OBC and SC/ST/visually challenged/physically challenged categories.

The adoption of new qualifying criteria by the UGC has denied thousands of candidates an opportunity for lectureship in universities and colleges.

While the NET notification stated that the scores of only those candidates who score the minimum specified marks would be considered for the preparation of result, the UGC’s new criteria for qualification required candidates in general, OBC, and SC/ST/VC/PC categories to post minimum scores (out of 350 — 100 marks each for first and second paper, and 150 marks for third paper) of 227.5, 210, and 192.5 respectively.
Academic communities against the last minute change they conduct various protests meet all over the india against UGC and they revise the result and publish a supplementary result but unfortunately it have no criteria . A mass petition filed in Kerala HC and almost two and half months hearing procedure done in Kerala ch.

The Kerala high court on Monday ( 17 Dec ,2012) declared as illegal the changing norms after the declaration of result fixed by the University Grants Commission (UGC) for the National Eligibility Test (NET) for college and university lectureship.

The main points of the Kerala High Court verdict are :-

“The power of UGC ought to have been exercised in a proper, fair and reasonable manner,” justice T.R. Ramachandran Nair held while allowing a batch of petitions challenging the new norms.

The court held that fixing of higher aggregate marks for three categories, that too just before the announcements of results, cannot be justified as the same was “not supportable by law”.

By changing the standards at the final stage and just before declaration of results, “it can be definitely be seen that it affected adversely the expectations of a large number of candidates”, the court said.

Justice P.R. Ramachandran Nair held that the UGC regulations did not confer any right on the UGC to fix high marks after holding of the NET. Nor could such criteria be introduced just before the announcement of the results by executive orders.

The introduction of the new criteria was not supported by the law.The court added that the students were jolted when all of a sudden the UGC prescribed the percentage of the aggregate marks. The adoption of such norms at the final stage and just before the declaration of the results had affected the candidates.

The change of the cut-off marks at the final stage violated Article 14 of the Constitution (equality before law).

The court also declared that the petitioners, who had obtained the separate minimum marks prescribed in the UGC notification, had cleared the NET.It also declared that all those who have obtained minimum marks prescribed in the notification have cleared NET and appropriate follow-up action be taken to issue certificates to them within one month.

Again the Kerala high court on ( 1 Jan ,2013) Tuesday also declared as :

The benefit of a single Bench order quashing the new qualifying criteria prescribed by the University Grants Commission (UGC) after holding the National Eligibility Test (NET) for lectureships will be available to all eligible candidates.
Justice T.R. Ramachandran Nair had earlier held that UGC regulations did not confer any right on the UGC to fix high marks after holding the NET.
In his order on Tuesday, Justice P.R. Ramachandra Menon said the apex court had earlier held that if a judgment was rather declaratory, it would be applicable to all irrespective of the fact that they were petitioners to the case or not.

After all the efforts of affected canidates all over the India ugc have no official response about this matter .They are in silence .They play with the future and lives of many candidates.




06 February, 2013

Protest meet against UGC NET June 2012 issues in front of Secretariat Trivandrum,Kerala

Shri.V. Sivankutty MLA ,Trivandrum East inaugurated the Protest on 14/09/2012  against UGC NET June 2012 changing criteria and rule after the exam and result in front of Secretariat Trivandrum,Kerala.
http://www.youtube.com/watch?v=Dt7h3zzT70I

Counter arguments against UGC


1.The more no.of candidates get the  UGC net affect the quality of education system

2.However the final criteria  clause mentioned in notification

3. UGC is an autonomous body so it have its own power to take/ change decisions

4.Supplementary result is published indicate rectify mistakes 

*****************************************************************************

1.The more no.of candidates get the  UGC net affect the quality of education system

How can UGC define the quality in higher education in terms of only the percentage of mark obtained in UGC net examination ?Then what is the relevance of pg examination conducted by college /university?

If a person got 70 % in pg and UGC net and 55 % in pg and net then who is selected for the post of a lecturer ?Obviously the person got 70 % in pg and UGC net.This indicate its only a certificate of eligibility for the post of Lectureship.

Why a pg  candidates written this examination ?Because UGC net is a mandatory, a parameter of identifying a person who is eligible to teach the students .

For the selection of a lecturer in a college or universities there are certain parameters tougher than UGC NET .The more no.of candidates get the in UGC net affect the quality of education system.Never .Its only one of the parameter for the selection of a lecturer.

In India the selection of a lecturer is based the no.of papers published in national /international journals,conference attended/papers presented,PhD ,teaching experience,age ,reservation criteria ,extra curricular activities etc etc .So the quality is increased not decreased .

Suppose if 1000 net qualifiers apply one post of Asst.professor then the person who have more academic qualities must selected .This increase the quality of educational system
Also the UGC Net  give push to the candidate to know more in his/her subject .Otherwise candidate mind/study revolves the same objective /subjective questions and answers .

The person who get 50 percentage mark in UGC net examination is eligible in the previous years of UGC net exam.From 2006 to 2011 the criteria is (40,40,50) and only those who have min mark in paper 1 and 2 then to evaluate paper 3 and publish a result on the basis of notification.How u said a person who got 50 % in DEC 2011 exam is high quality and 64 % in June 2012 exam have  low quality and so not suitable for the post of lecturer  for conducting an exam without any change in syllabus  ?How a person who get 64 % is less quality than a person get 38 % ??This matter pointed that  those person who got 38 % is passed in supplementary list .How it possible?

UGC must give an explanation that what is the difference in terms of quality /eligibility of a person who get net in 2006 to 2011 and June 2012 net examination .

UGC may pointed that the previous exam conduct paper 3 is subjective and evaluated the subjective knowledge of person through paper 3.But in June 2012 the exam is complete objective in nature and so its not possible.Thats why choose a high cut off mark.My question is who is responsible to change the mode of examination.Its UGC, not the candidate.The responsibility of the changing mode /format of the examination is fully to UGC.If all the papers are in subjective in nature then candidate also write in that format .If all subject papers are in subjective in nature then candidate also write in that format.Candidate have no option to chose the mode of examination.

Suppose the pass percentage of 10th standard increased a considerable margin compared to the previous year, does that mean the quality of 10th standard examination has gone down? will the exam board increase the pass percentage so as to make a few number of students to get failed?

Different types of exams are broadly classified into two main groups :
1. Eligibility test and
2. Competitive test.

Eligibility test is mainly used for testing the minimum eligibility of candidates. Using fixed minimum qualifying marks For example SSC, PUC and all DEGREE exams belongs to this group, where passing marks are fixed (ex 35%) and every year they use same cut off marks to select the qualifying candidates. Passing marks cant vary with respect to number of passed candidates or marks scored by candidates. It is not like that if all candidates of SSC score more than 70% passing marks become 60% or else if more number of candidates passing hence cut is 50%. Ever year they use fixed cut of 35%.

In competitive exams are used to select the some fixed number of candidates where they prepare subject wise merit list and select top scored required number candidates from list. IAS, IPS, KAS etc are example for competitive exams. In competitive exams even if candidates score more than 90% also his selection defends on availability of seats. Some time because of heavy competition he may not qualify the exam with 90% marks. As name of NET (national Eligibility test) indicates, it is a eligibility test hence increasing or decreasing cut off marks is not required. UGC must and should use the fixed minimum cut as mentioned in advt.Main aim of NET is to test the minimum eligibility of candidate not to prepare a merit prepare a merit list because UGC not providing any job to qualified candidates.

First of all "Quantity" doesn't define " Quality". As India is the second largest growing economy in the world. It requires eminent faculty members in order to fuel its growth,, so as it is more faculty members are required and this will create healthy competition in any colleges/ universities will able to find suitable candidates.

In case of entrance exam(medical, engineering) all who posses the pass mark are eligible to apply for their corresponding courses irrespective of the number of vacancies. Eligibility tests are to be conducted to evaluate the eligibility and not to decide the quality of education systems. Hence eligibility criteria mentioned prior to the exam to be strictly adhered in the publishing of results too.

If all eligibility tests criteria changed prior to result publishing, the Ambiguity increases and it will create unrest, confusion and disappointment/dissatisfaction/frustration among the candidates.

They give the passing criteria in advance and paper will be of them only y this hidden criteria not declared and evaluate quality. quality has to be judge in term of whole system not at 3 hrs paper put more transparent screening methods.Everybody knows that quality generally increases when there are more competitors comes .Technically, after NET aspirants qualify (after getting the minimum cut-off) then a separate list for JRF is to be created.Money is again the issue as they also have to hand out money to JRF qualifiers. They could have therefore created higher subject wise cut-off for JRF.

2.However the final criteria clause mentioned in notification

As its a qualifying exam and not a competitive exam,, notification has to be prior to the exam not after the exam,, as candidates have the right to know,, what exactly they have to get,,,Moreover they should have mentioned some number of cutoff if they were so bothered bot quality. ie first 45,000 or 50,000 will pass. there has to be some clarity.

UGC had clearly mentioned in the notification that final cutoff will be declare before result but they did not even they never mentioned that avg cutoff procedure will be followed.

UGC has been using this since the last 12 years but every time they follow minimum criteria.if today they r right so wt was about last few years?
However the final criteria ....this sentence is ambiguous sentence. UGC mentioned this sentence in previous year exams also but they never changed the eligibility criteria...they change this time because of wrong policies decided before exam...and now to escape it...they are doing blunders....

3.UGC is an autonomous body so it have its own power to take/ change decisions

Autonomous body is a public authority or government agency responsible for exercising autonomous authority over some area of human activity in a regulatory or supervisory capacity. An independent regulatory agency is a regulatory agency that is independent from other branches or arms of the government.Regulatory agencies deal in the area of administrative law—regulation or rule making (codifying and enforcing rules and regulations and imposing supervision or oversight for the benefit of the public at large).
Regulatory agencies are usually a part of the executive branch of the government, or they have statutory authority to perform their functions with oversight from the legislative branch. Their actions are generally open to legal review.

Autonomous /statutory bodies are designed for the effective function/working without any political interference.Here ugc is an Autonomous /statutory body of establishing the minimum standard /quality in education.

Autonomous body have their own system administrators for maintain the website .Its not a high tension job to change the criteria and post it to the website.Also last minute before the declaration of result did not mentioned the matter of aggregate marks .new criteria of result then how its possible ??In India every statutory body have certain procedure to take decisions .UGC violates the rule from the beginning and so UGC cheats the entire nation and youth of our country.

UGC have the rights to design /change the mode of examination ,pattern of examination ,adding or deleting no.of papers in examination ,define the cut off marks,framing syllabus etc etc.but all such matters define before the examination .The statutory right is applicable in before framing the examination rules.Nobody can  beat these rules through a court .

If UGC think 90 % marks is suitable  then they mentioned those who qualify 90 % in each paper separately qualified in UGC net .UGC have the right to choose any high % of mark.Its before the exam not after the publication of result.Its is rights of every candidates to know under what is the criteria of eligibility .

UGC is an autonomous body so what ? An autonomous body has no right to take any decision that can hamper civil society.

UGC is autonomous body not the family affair that all decision are going away from there moto of establishment.

Today what is the motive of NET? Profit generation for UGC or Eligibility for candidates? If the motive is for profit making, then of course, UGC can keep a low eligibility criteria to attract a wide range of candidates, generate income from them in the name of exam fees, and later on change the criteria thereby cheating the candidates.Autonomous body have not Hitler's rules .In India, Democracy is the part of everything  so "no one is bigger than the country and the Constitution of India " all candidates are  not simple they are become  lecturer means maker of Indian future.They can do any thing by law.

The no.of JRF scholarship issued by UGC is very limited.The no.of applicants in UGC June 2012 examination  was near to seven lakhs .More than 25 crore of  rupees collected through application fee .
In June 2012 examination 4700 JRF issued . At least 10000 JRF is issued for the future academic growth of India.Lots of amount  money wasted through different scams in India why UGC does not give sufficient money  for the Indian  youth?

The development of a country is directly depends up on the innovation and research in various subject fields.Coming back to the scenario in the country, more than 50% of the IIT graduates go abroad for pursuing their dreams. Students are lured by the glitter of silicon valley and instead of serving their own country, contribute to the growth outside. Our country is in great need of specialized engineers, the CEO of an Indian construction company Larsen and Turbo remarks: Where have my engineers disappeared.The talented youth move to the west due to the corrupted policies of higher education agencies  in India.In BBC’ Generation Next series survey conducted in 10 cities, 64 percent of the Delhi youth voted that they should immigrate to another country for a better future.

4.Supplementary result is published indicate UGC rectify mistakes

Why UGC published a Supplementary result ?Why not they fear the new criteria of Supplementary result ?Something behind the screen ?The new 15000 qualified students  selected randomly ? Before fixing a criteria how can publish such a result ?I think Certain malpractices /mistakes happen in the new result criteria thats why UGC not present the criteria to the public.

In computer science those who qualified the minimum criteria at the time of notification included in the new supplementary result and got UGC NET and the people who had not even passed before now have got JRF and give full mark to all wrong/unevaluated questions and so those who got 38 % in paper 3 also passed in the new list.

The mistake of computer science subject only rectified why UGC not clear the mistake of other subjects ?In computer science a person who got less than the minimum criteria is eligible but a person who got 64 %  in other subjects is not suitable in lectureship ?What is the logic behind this system of quality ?

It indicates that how inefficient they are to run an institution.As they know that they have done a big blunder so to hide this, they declare supplementary result in too hurry that they forget to declare cutoff and this time they introduced subject  wise cutoff which were illogical and this was also not mentioned in notification n this was an arbitrary decisions n for that they have to face more n more case.Supplementary result eyewash to hide mistakes of whole system paper setting to paper evaluation influential centers getting good result .

Kerala High Court Single Judge Second Verdict 01/01/2013


IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934
WP(C).No. 31443 of 2012 (E)

---------------------------
PETITIONER(S):
--------------------------
RAJANI.M.P.,
W/O.SREEJITH AND D/O.HARIDASAN.P.,
NOW RESIDING AT MAMBRAKKATTIL HOUSE,
WEST CHALAKUDY, THRISSUR DISTRICT.
BY SRI.RENJITH THAMPAN,SENIOR ADVOCATE
ADV.SMT.P.R.REENA

----------------------------
RESPONDENT(S):
----------------------------
1. UNIVERSITY GRANTS COMMISSION (UGC),
BAHADUR SHAH ZAFAR MARG, NEW DELHI, PIN-110 002,
REPRESENTED BY ITS SECRETARY.
2. COORDINATOR,
UNIVERSITY GRANTS COMMISSION (NET),
OFFICE OF THE UNIVERSITY GRANTS COMMISSION,
NEW DELHI-110 002.
BY ADV. SRI.S.KRISHNAMOORTHY, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01-01-2013,ALONG WITH WP(C)NO.31408/2012 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)NO.31443/2012
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE ADMISSION CARD OF THE PETITIONER ,ROLL NO.13083743
P2 COPY OF THE MARK SHEET OF THE PETITIONER.
RESPONDENT'S EXHIBITS:
NIL
/TRUE COPY/
P.A.TO.JUDGE
P.R.RAMACHANDRA MENON, J.


- - - - - - - - - - - - - - - - - - - - --------------------------------
W.P.(c) Nos.31443, 31444, 31464, 31467, 31473, 31474,
31477, 31440, 31456, 31479, 31492, 31428, 31430, 31420,
31435, 31425, 31416, 31442, 31441, 31437, 31463, 31472,
31438, 31408, 31412, 31421, 31432, 31449, 31450, 31453,
31454, 31461, 31488, 31491, 31494, 31501, 31508, 31509,
31510, 31515, 31516, 31517, 31518, 31525, 31527, 31528,
31529, 31534, 31535, 31538, 31543, 31554, 31556, 31557,
31561, 31562, 31563, 31575, 31576, 31577, 31589, 31598,
31603, 31604, 31605, 31606, 31608, 31616, 31617, 31618,
31619, 31623, 31628, 31629, 31634, 31636, 31637, 31638,
31639, 31640, 31641, 31643, 31650, 31652, 31653, 31654,
31662, 31666 OF 2012
- - - - - - - - - - - - - - - - - - - - - - - - - --------------------------------

Dated this the 1st day of January, 2013
JUDGMENT

Whether 'Rules of the game' could be changed during the middle of the game, is the issue involved in all these cases.

2.The matter relates to acquisition of the requisite qualification for appointment as 'Lecturer'
by clearing the 'National Eligibility Test' ( NET for short). The test was notified to be conducted
by the UGC, stipulating the norms as to the particulars of the papers, the minimum marks to be
obtained and such other details.The examination was scheduled to be conducted on 24.06.2012.

3.The petitioners participated in the examination and according to them they have crossed
the hurdle, with regard to the minimum marks prescribed and notified.
But the UGC, just a few days before the declaration of the result, sought to change the norms, whereby some modification was made with regard to the minimum qualifying marks and mode of reckoning the same; introducing the 'total/ aggregate minimum' as well, apart from the minimum marks to be secured for each paper. This was quite to the disadvantage of persons like the petitioners, who were never told
of such a course earlier, as a result of which, they could not get the clearance. It was in the said
circumstance, that similarly situated persons approached this Court by filing several writ petitions,
which were considered together and a common judgment was passed by a learned Single Judge of
this Court on 17/12/2012 ( W.P.(C)No.22187/2012 & connected cases).

4.As per the said judgment, the course pursued by the UGC was held as not correct or
sustainable and accordingly, the impugned proceeding stipulating the category-wise qualifying
criteria for lectureship was set aside. It was declared by this Court, that all the petitioners, who had
obtained the separate minimum prescribed in the notification for Papers I, II and III, had cleared the
'NET' and appropriate follow up action was directed to be taken, to issue certificates to them, within
'one month' from the date of receipt of a copy of the judgment. The petitioners in these writ
petitions seek for similar benefit, as given by this Court in the aforesaid judgment.

5.Sri.Krishnamoorthy, the learned Standing Counsel for the UGC, entered appearance on
behalf of the respondents and made a submission that the respondents are very much aggrieved of
the verdict passed by the learned Single Judge and that steps are being taken to file writ appeal. It is
pointed out that, if the relief sought for is granted, it will cause severe hardship to the UGC. It is
also brought to the notice of this Court that in most of these cases, interim orders have been passed,
in terms of the final verdict as mentioned hereinbefore.

6.After hearing both the sides, this Court finds that the judgment already passed by the
learned Single Judge in W.P.(C) No.22187/2012 and connected cases is purely based on the
question of law, as there is no dispute with regard to the facts and figures. The question of law has
been considered and answered in favour of the petitioners concerned and a declaration of law has
been made by thisCourt. The Court also considered the scope and applicability of
judicial precedents cited from both the sides particularly, the law declared by the Apex Court in
K.Manjusree v. State of Andra Pradesh and another ( 2008(3) SCC 512) , the Full Bench of this
Court in Dr.Cyril Johnson v. State of Kerala and others ( 2009(4) KHC 404( FB) and a Division
Bench of this Court in Jayachandran v.High Court of Kerala ( 2010 (4) KLT 49) (to which I was also a member), in support of the case projected by the petitioners, to the effect that the rules of selection could not be changed after commencement of the process of selection. The reliance sought to be placed from the part of the UGC with reference to the recent judgment of the Apex Court in Civil Appeal Nos.4959 and 4962 of 2011 with regard to the question of minimum qualifying marks for 'viva voce', introduced just two or three days before the commencement of the oral tests, though it was not stipulated in the
advertisement issued by the PSC, was also considered therein and it was distinguished for the
reason that, such stipulation was very much incorporated in the relevant rules, but omitted to be
incorporated in the advertisement and hence held as not applicable. It was after considering the rival
contention and also the binding judicial precedents, that a finding was rendered,leading to the
judgment as aforesaid.

7.As mentioned herein before, the verdict passed by the learned Single Judge is rather
declaratory in nature. It has been held by the Apex Court that, if the verdict is of declaratory
character, it shall be made applicable to all who are similarly situated; irrespective of the fact
whether they are parties to the verdict or not. This is reported in Ashwani Kumar and others v. State
of Bihar and others (1997(2) SCC 1). Since the petitioners seek for the benefit of such declaratory
judgment, this Court does not find any reason to take a different course.
8.In the above circumstances, all these writ petitions are allowed, holding that the petitioners
are entitled to have the benefit of the judgment passed in W.P.(C)No.22187/2012 & connected
cases.The petitioners, who have obtained the separate minimum marks prescribed in the notification for
Papers I, II and III, are declared as cleared the 'NET'. Appropriate follow up action shall be taken
by the concerned respondent to issue certificates to them at the earliest, at any rate within 'one
month' from the date of receipt of a copy of this judgment, subject to curing the defects if any
pointed out, from the part
of the respondents.

9.Considering the fact that petitioners are being given the benefit of the above declaratory
judgment, it is also necessary to put the petitioners on alert, as to the steps stated as being taken by
the UGC to challenge the basic judgment, by way of Writ Appeal.

10. In the above circumstances, it is made clear that, if the writ appeal being filed by the UGC
comes to be allowed in favour of the UGC, naturally the law declared by the Division Bench will be
made applicable to all the petitioners herein, as the benefit of declaration will stand equally
applicable to both the sides.Taking note of the submission made by the learned Standing Counsel for the UGC, the petitioners in all these cases are directed to furnish an additional set of the concerned writ petition to the learned Standing Counsel forthwith, to save time in respect of the procedural formalities to be completed.

P.R.RAMACHANDRA MENON
JUDGE
W.P.(C)No.31443/2012

Kerala High Court Single Judge Verdict( 17/12/2012)


                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR

MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934

WP(C).No. 22187 of 2012 (W)
---------------------------

PETITIONER(S):
------------------------

ROOPAKALA PRASAD, AGED 38 YEARS,
D/O.RAJENDRAPRASAD, RESIDING AT VALIYAMELET HOUSE,
PALA P.O., THEKKEKARA, KOTTAYAM DISTRICT.

BY SRI.K.GOPALAKRISHNA KURUP,SENIOR ADVOCATE
BY ADV. SMT.K.DEEPA (PAYYANUR)
SRI.S.MANU

RESPONDENT(S):
----------------------------

1. THE UNIVERSITY GRANTS COMMISSION,
REPRESENTED BY ITS SECRETARY, NEW DELHI-110 001.

2. THE CO-ORDINATOR,
UGC NATIONAL ELIGIBILITY TEST FOR JUNIOR FELLOWSHIP AND
ELIGIBILITY FOR LECTURESHIP-JUNE 2012,
OFFICE OF THE UNIVERSITY OF GRANTS COMMISSION,
NEW DELHI-110 001.

3. NATIONAL EDUCATIONAL TESTING (NET) BUREAU,
UNIVERSITY GRANTS COMMISSION, NEW DELHI-110 001.

R1 TO R3 BY ADV.SRI.S.KRISHNAMOORTHY,SC


THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27/11/2012 ALONG WITH WPC.NO.22280 OF 2012 AND
CONNECTED CASES, THE COURT ON 17/12/2012 DELIVERED
THE FOLLOWING:


Kss


WPC.NO.22187/2012 W

APPENDIX

PETITIONER'S EXHIBITS:


EXHIBIT-P1. TRUE COPY OF THE NOTIFICATION FOR NATIONAL ELIGIBILITY TEST
ISSUED BY THE 3RD RESPONDENT DOWNLOADED FROM THE WEBSITE OF THE
1ST RESPONDENT.

EXHIBIT-P2.TRUE COPY OF THE DETAILED NOTIFICATION FOR NATIONAL
ELIGIBILITY TEST ISSUED BY THE 3RD RESPONDENT DOWNLOADED FROM THE
WEBSITE OF THE 1ST RESPONDENT.

EXHIBIT-P3. TRUE COPY OF THE HALL TICKET ISSUED TO THE PETITIONER FOR
THE TEST HELD ON 24.06.2012.

EXHIBIT-P4. TRUE COPY OF THE OMR RESPONSE SHEET OF PAPER-I AND
PAPER-II OF THE TEST ATTENDED BY THE PETITIONER ON 24.6.2012.

EXHIBIT-P5. TRUE COPY OF THE OMR RESPONSE SHEET OF PAPER-III OF THE
TEST ATTENDED BY THE PETITIONER ON 24.6.2012.

EXHIBIT-P6 SERIES. TRUE COPY OF THE ANSWER KEYS FOR PAPER-I, PAPER-II,
AND PAPER-III OF THE TEST ATTENDED BY THE PETITIONER ON 24.6.2012.

EXHIBIT-P7. TRUE COPY OF THE CATEGORY-WISE QUALIFYING CRITERIA FOR
LECTURERSHIP ELIGIBILITY NOTIFIED BY THE 1ST RESPONDENT.




RESPONDENTS' EXHIBITS: N I L




/TRUE COPY/




P.S.TO JUDGE

Kss




T.R.RAMACHANDRAN NAIR, J.
- - - - - - - - - - - - - - - - - - - - - - - - - -
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, 22994, 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,
2482, 24485, 24500, 24503, 24504, 24535, 24537, 24540, 24556, 24565,
24580, 24592, 24596, 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, 25975, 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, 25442, 25464, 25467,
25468, 25472, 25494, 25512, 25649, 25722, 25761, 25868, 25874, 25879,
25894, 25925, 26043, 26065, 26218, 26221, 26302, 26364, 26437, 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 and 29888 of 2012
- - - - - - - - - - - - - - - - - - - - - - - - - -
DATED THIS THE 17th DAY OF DECEMBER, 2012

JUDGMENT

These writ petitions have been filed by the respective petitioners


W.P.(C).No.22187/2012, etc.
-2-




challenging the change in category-wise qualifying criteria for lectureship

in the examination held on 24.6.2012 for making them eligible for acquiring

National Eligibility Test ('NET' for short). I shall refer to the facts pleaded

in W.P.(C) Nos.22187/2012, 22280/2012 and 26468 since common

grounds have been raised by various petitioners.

2. W.P.(C) No.22187/2012 is at the instance of the petitioner who is

a postgraduate in Humanities (M.A. - Malayalam). She has secured M.A.

from Sree Sankaracharya University of Sanskrit, Kalady in 1996 with 58%

marks. She passed M.Phil (Malayalam) in the year 2012 from Madurai

Kamaraj University.

3. It is pointed out in the writ petition that the University Grants

Commission (for short 'U.G.C.') has made the "University Grants

Commission (Minimum Qualifications required for Appointment and Career

Advancement of Teachers in Universities and Institutions Affiliated to it)

Regulations 2000. For the post of Lecturers under clause 1.3.3, the

following qualifications have been fixed.


W.P.(C).No.22187/2012, etc.
-3-


"Good academic record with at least 55% of the marks or an

equivalent grade of B in the 7 point scale with latter grades O, A,

B, C, D, E and F at Master's degree level, in the relevant subject

from an Indian University, or an equivalent degree from a foreign

University.

Besides fulfilling the above qualifications, candidates should

have cleared the eligibility test (NET) for Lecturers conducted by

the UGC, CSIR or similar test accredited by the UGC.

Note:- NET shall remain the compulsory requirement for

appointment as Lecturer even for candidates having Ph.D. Degree.

However, the candidate who have completed M.Phil degree or have

submitted Ph.D. Thesis in the concerned subject up to 31st

December, 1993 are exempted for appearing in the NET

examination."

The note therein is important which shows that NET is a compulsory

requirement for appointment as Lecturer. Therefore, the candidate will

have to clear NET as evident from para 1.3.3. The UGC and CISR have to

conduct the same also.

4. Ext.P1 is the notification issued by the third respondent UGC.

There are three papers, and all of them consisted of only objective type

questions. The minimum marks to be obtained by the candidates for papers

1, 2 and 3 are as shown below:


W.P.(C).No.22187/2012, etc.
-4-




Category Paper-I, Paper-II Paper-III
General 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 100

and for IIIrd paper it is 150. For the first paper, out of 60 questions, 50

questions will have to be attempted, for the second paper, there are 50

questions and all of them are compulsory and for paper 3, there are 75

questions and all are compulsory. The duration of hours of examination is 1

= hours each for papers 1 and 2 and 2 = hours for paper 3 which are

conducted in sessions 1 and 2 respectively.

5. The test was conducted accordingly on 24.6.2012 and the

petitioner appeared for all the three papers. The carbon print out of OMR

answer sheets were allowed to be carried by the candidates which have

been produced as Exts.P4 and P5. Answer key is published for all the

papers which are produced as Ext.P6 series.

6. The writ petitions have been filed when, on 18.9.2012 the

University 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 the

evaluation of answer papers and immediately before the publication of

results. The change notified is extracted in para 5 of the writ petition which

is as follows:

Category Minimum Qualifying Percentage
Paper-I, Paper-II Paper-III Aggregate of all
three papers
General 40% 40% 50% 65%
OBC(Non-creamy
layer) 35% 35% 45% 60%

SC/ST/PWD 35% 35% 40% 55%

The copy of the notification is produced as Ext.P7. Therefore, the

substantial change is that for general category candidates the UGC has

fixed 65% as the aggregate of all the three papers, to acquire NET. For

OBC the same is fixed as 60% and for SC/ST/PWD it is fixed as 55%. It is

the case of the petitioner that the first respondent was bound to publish the

results 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.22187/2012

the petitioner points out that the regulations have been framed by the UGC

as per the terms of Section 26 of the UGC Act. For conducting test, the

UGC 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 any

post. The clearance of NET is only an additional qualification for being

appointed as Lecturer in any University or affiliated colleges. Therefore,

the relevant aspect is only the conditions in the notification. The change

effected is not fair, reasonable and is clearly arbitrary and the body has to

function in terms of the constitutional mandate. As far as NET qualification

is concerned, what is provided is only clearance of NET. UGC is not acting

as a body conducting selection to a post. Thus, a qualifying criteria and its

fixation is out of the bounds of the UGC. It is therefore pointed out that it

has no power for laying down any new criteria or eligibility for particular

post. The prescriptions cannot be changed or altered after the conduct of

examination 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 she

passed LL.M. Degree conducted by the Kerala University in the year 2010

with 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 the

enhancement of the aggregate itself is irrational, as 40%/50% being fixed

for a pass in individual papers and later fixing it as 65% as an aggregate

for the very same paper. The same cannot be sustained. Therefore, actually

it is enhancement of the minimum percentage required for individual

papers. Therefore, even if a candidate has the minimum percentage the

present exercise will result in failure in the examination which cannot be

justified. It is also pointed out that the candidates have written the

examination in the light of the announcement made in the notification and

as per the criteria fixed in the prospectus. They were expected to get only

a minimum and attempted only the most beneficial questions while

appearing. It is pointed out that in the first paper even though there are 60

questions, the candidates need attempt 50 questions alone. Thus, actually

the non announcement of the change/enhanced criteria before

commencement of the examination has caused prejudice to the petitioners,

as otherwise they could have prepared for maximum results and for

attending the maximum number of questions. It is also pointed out that the

decision 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 the

criteria in the middle of a process and after the test is illegal and

unsustainable in the light of the law declared by this Court and the Apex

Court in various cases. Herein, there is no power empowered on the UGC

to change the criteria after the whole exercise is over and just before the

announcement of the results.

10. With regard to the examination conducted, it is contended that it

is not a competitive test for giving any employment and what is being

decided is the only minimum eligibility. It is submitted that the UGC will

have to act fairly and responsibly.

11. Heard Shri K. Gopalakrishna Kurup, learned Senior Counsel for

the petitioners, Shri K. Jaju Babu, Shri Kaleeswaram Raj, Shri K.B.

Arunkumar and Shri Philip Mathew, Shri Alexander Perumpilikuttiyil, Shri

Basil Attipetty and other learned counsel who appeared for the petitioners

and Shri S. Krishnamoorthy, learned Standing Counsel for the UGC.

12. Shri K. Gopalakrishna Kurup, learned Senior Counsel appearing

for some of the petitioners submitted that under Section 25 of the U.G.C.

Act certain powers have been conferred on the U.G.C. It is submitted that

the power to make rules and regulations should be carried out within the


W.P.(C).No.22187/2012, etc.
-9-


four corners of the said rules and regulations alone. It is submitted that

Section 26(1) of the Act gives power to the Commission to prescribe

regulations consistent with the Act and the rules made thereunder. Going

by sub-section 1(e), the power is only to define the qualifications that

should ordinarily be required of any person to be appointed to the teaching

staff of the University having regard to the branch of education in which he

is expected to give instructions. Sub-section 1(f) will show that the power

can be exercised for defining the minimum standards of instruction for the

grant of any degree by any University. The regulations herein under para

1.3.3. prescribes the qualification for the post of Lecturer. Apart from the

academic qualifications, the candidates are required to clear the eligibility

test (NET). Herein, going by the present prescription, what is decided by

the UGC is an eligibility itself for lectureship before the declaration of

results by adopting 65% aggregate for general category candidates and like

standards for other categories of candidates. In the absence of amendment

to the Regulations 2000, the same cannot be recognised. It is now being

treated as a qualification for appointment to the post of Lecturer. By citing

the practice and tradition in the previous examination it is pointed out that

in the former years only 40% was fixed as minimum. In the absence of a


W.P.(C).No.22187/2012, etc.
-10-


regulation conferring power on the Commission, by prescribing the new

yardstick, the UGC has clearly acted arbitrarily. Reliance is placed on the

decisions of the Apex Court in K. Manjusree v. State of Andhra Pradesh

and another {(2008) 3 SCC 512}, Hemani Malhotra v. High Court of

Delhi {(2008) 7 SCC 11} and Central Board of Secondary Education

and another v., Aditya Bandopadhyay and others {(2011) 8 SCC 497} to

contend that the UGC is only an examining body and is not an appointing

authority or a body conducting selection to fill up the post of Lecturer. It is

well settled that the rules cannot be changed mid course. As the petitioners

have secured the minimum marks, their results are thus to be declared.

13. Shri K. Jaju Babu, learned counsel appearing for some of the

petitioners submitted that the position is well settled that there cannot be

any change during mid course. Herein, there is no enabling power for

adopting such a criteria. The test is not a competitive one and therefore new

standards cannot be fixed to scale down or reduce the number of candidates.

The learned counsel also relied upon various decisions in support of the

pleas.

14. Learned counsel appearing for some of the petitioners, Shri

Kaleeswaram Raj submitted that actually there is no decision by a


W.P.(C).No.22187/2012, etc.
-11-


competent 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 power

is vested on any of the officers. By referring to Section 27 of the Act, it is

submitted that only under the said provision, that also by regulations, the

Commission can delegate to its Chairman, Vice-Chairman or any of its

officers, its power of general superintendence and direction over the

business transacted by, or in, the Commission, including the powers with

regard to the expenditure incurred in connection with the maintenance of the

office and internal administration of the Commission. It is submitted that

sub-section (2) is important which states that "no regulation shall be made

under this section except with the previous approval of the Central

Government." It is submitted that the absence of any such exercise here,

makes the entire action ultra vires and illegal. Learned counsel also relies

upon various judgments of the Apex Court in that context. It is submitted

that there was no indication in the notification about the matter and even if

there is any, it will be arbitrary.

15. Shri K.B. Arunkumar, Shri Alexander Perumpillikuttiyil, Shri

Philip Mathew and Shri Basil Attipetty, learned counsel appearing for

some of the petitioners also supported the arguments of the learned Senior


W.P.(C).No.22187/2012, etc.
-12-


Counsel appearing for the petitioners and submitted that there cannot be

any change of rules in the mid stream. Several decisions of the Apex Court

have been relied upon by them.

16. The UGC has filed a counter affidavit wherein the action is

sought to be supported on various grounds. The counter affidavit is filed in

W.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 Junior

Research Fellowship and eligibility for Lectureship shall be decided by the

UGC, before declaration of results. In para 7 it is mentioned that only such

candidates who have obtained the minimum required marks in each paper

separately as mentioned in para 5, will be considered for final preparation

of results. It is therefore submitted that the candidates were put to notice of

the same by the notification itself and there is no illegality in the matter.

Thus, the final qualifying criteria has been decided perfectly as empowered

by the notification itself. The Moderation Committee constituted by the

UGC consists of senior academicians was for finalisying the qualifying

criteria for Lectureship Eligibility and Junior Research Fellowship held in

June, 2012. The meeting of the Committee took place on 17.9.2012. The

Committee recommended that the General, OBC (non-creamy layer) and


W.P.(C).No.22187/2012, etc.
-13-


SC/ST/PWD candidates would be required to obtain an aggregate

percentage of 65%, 60% and 55% respectively in addition to the paper-wise

minimum percentage as qualifying criteria. This is done in keeping the

customary practice adopted for finalising the result of UGC-NET. The

basic minimum benchmark is intimated to the candidates in the notification

announcing UGC-NET.

17. It is stated in para 9 that the final cut-off is decided by the

Commission, before the declaration of the result. In the notification

published by the UGC, there is always a clause that the final cut-off shall be

decided by the Commission before declaration of the result. As such there

may be conflict in the minimum and qualifying marks prescribed in both

these notifications.

18. The action taken by the UGC is sought to be supported by

maintaining that the mandate of the UGC includes determining and

maintaining standards of teaching, examination and research in Universities.

Therefore, the said powers of the UGC to frame the criteria for an

examination that makes the candidates eligible for teaching, is well within

its jurisdiction. In fixing the said criteria, no court can interfere. It is

averred in para 11 that NET is a national level examination aimed to


W.P.(C).No.22187/2012, etc.
-14-


qualify the cream of the country for teaching and research in keeping with

the mandate of UGC as per UGC Act, 1956 which includes determining and

maintaining standards of teaching examination and research in Universities.

In para 13, it is explained that nearly five lakh seventy thousand and odd

number of candidates were participated in the test. Objective type

questions were introduced for the first time. Mainly it is stated in para 13

thus:

"The eligibility criteria have been decided by the committees,

taking note of various aspects and also to protect the standards of

education. Comparing with the previous year's percentage of pass,

even while prescribing 65% of marks aggregate, the number of

qualifying candidates is 3 times higher. The UGC, while

introducing the objective mode, for the first time, has cautiously

published the notification, prescribing minimum marks and clearly

mentioned therein that, the qualifying criteria and eligibility

criteria shall be decided by the UGC, before the publication of

result. The qualifying criteria prescribed by the UGC, is basing

upon the primary duty of the UGC, to prescribe and maintain

educational standards for ;lectureship. There cannot be any

arbitrariness or discriminations for the same."

It is further pointed out in para 14 that since it is a national level

examination and as there is no ranking system, a cut off percentage is fixed,


W.P.(C).No.22187/2012, etc.
-15-


as a qualifying criteria. The notification/prospectus is only an invitation, to

appear for the examination. Since it is an objective type examination,

qualifying criteria can only be determined later. The same cannot be

equated with a notification for any public appointment. The committee can

evolve such procedure for determining the eligibility criteria. The wisdom

of the committee cannot be called into question. The Apex Court has

decided in various cases that in academic matters, the Court cannot

interfere.

19. Shri S. Krishnamoorthy, learned Standing Counsel for the UGC

therefore submitted that the UGC is not simply an examining body.

Attention was invited to Section 12 of the Act in particular and it is

contended that going by Section 12 which defines the powers and functions

of the Commission, the Commission is empowered to take such steps for

the promotion and co-ordination of University education and for the

determination and maintenance of standards of teaching, examination and

research. Section 26(1)(e) which confers power to define qualifications,

was also relied upon, apart from the regulations of the year 2000 and it is

submitted that the regulation has got statutory force in the light of the

decisions of the Apex Court. As far as the aspect of clearance of NET under


W.P.(C).No.22187/2012, etc.
-16-


para 1.3.3. is concerned, it is submitted that it will always be the subjective

satisfaction of the U.G.C. It is pointed out that for this year all the papers

have been prescribed in objective mode. The said body can fix up the

marks required for qualifying the test itself. It is submitted that there was

no complaint against the prescription in the notification about the

requirement whereby it was notified that final qualifying marks will be

fixed later. The UGC was entrusted with the task of conducting the

examination by the Government of India in 1988. Shri Krishnamoorthy

explained that after the initial results were available, they were analysed by

the committee on various aspects. The committee, after examining the

answer papers and the competence including the skill and aptitude, etc., has

made a recommendation for fixing the standard on a higher aggregate

marks. Of course, the recommendation of the committee may not be

binding on the UGC but they can accept or reject it. The last year 5% marks

was reduced and this year an increase was made. It is pointed out that the

standard 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. The

minimum qualifying marks was never published and thus there is no

change from the said marks to come within the mischief in the rules of the


W.P.(C).No.22187/2012, etc.
-17-


game. It is submitted that there is no prohibition in the regulation for

putting the qualifying marks. Therefore, it is mainly contended that there is

absolute power under the regulations in prescribing the qualifying marks.

Shri Krishnamoorthy relied upon the following decisions of the Apex Court

to contend that the UGC has got absolute power which aspect has been

concluded by the Apex Court.: University of Delhi v. Raj Singh and

others (1994 Supp (3) SCC 516) and University Grants Commission etc.

v. Sadhana Chaudhary & others (JT 1996 (8) SC 234). It is further

pointed 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. It

is also stated that the precedents cited by the petitioners' counsel are

different on facts regarding the said aspect also. Such precedents will not

apply where factual matrix is totally different. It is further pointed out that

there 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 further

eligibility marks for lectureship, especially in the light of Section 26(1)(e)

and 1(g) of the Act. Such an eligibility criteria for lectureship cannot be


W.P.(C).No.22187/2012, etc.
-18-


made in a notification. It can only be introduced by a regulation. The

NET clearance as provided in para 1.3.3 cannot be a source for

empowerment. At any rate, it is contended that the UGC was bound to

disclose about the same to the candidates well in time and in the absence of

the same, serious prejudice has been caused to the candidates. Learned

Senior Counsel further submitted that the power is only to conduct the

examination and the requirement of a candidate is only to get the NET

cleared to apply for the post. Shri Kaleeswaram Raj, learned counsel

submitted that the word "minimum" should be read along with the word

"required" and the same will make the position clear. It is submitted that

the committees who have deliberated are not statutory committees and

therefore their decision has no bearing on the issue. Shri Jaju Babu

submits that the well settled principle that rules of the game cannot be

changed in the midway should apply here, otherwise great prejudice will be

caused to the candidates. It is submitted that the decision is taken by a

totally incompetent body and any ratification will not help in such matters.

21. Shri Krishnamoorthy, learned Standing Counsel explained

further that herein, the UGC has exercised the power under the said section

and the power to be exercised under Section 12 and those under the


W.P.(C).No.22187/2012, etc.
-19-


regulations are quite different. Here, what is prescribed is the maintenance

of standard envisaged in Section 12 and it is different from the regulation

making power. The Chairman of the UGC can appoint committees

including important academicians in the field like the Vice Chancellor of

the University and other members and they have recommended the

standards. The UGC necessarily will have to depend upon the

academicians to fix up the standards. But the only compulsion is that UGC

need not accept the same always.

22. The scheme of the test is clear from para 7 of Ext.R1(a). After

providing minimum marks, it is provided therein that such candidates will

be considered for final preparation of result. In the next paragraph it is

explained as follows:

"However, the final qualifying criteria for Junior

Research Fellowship (JRF) and Eligibility for Lectureship shall

be decided by UGC before declaration of result."

23. The crucial words in para 1.3.3 of the Regulations regarding

NET qualification is that the candidate should have cleared "Eligibility test

(NET) for lecturers" on which the entire arguments have been raised by

both sides.


W.P.(C).No.22187/2012, etc.
-20-


24. Before we come to the said point, it can be seen that under the

various Circulars, the UGC has fixed a minimum qualification and what is

prevalent now is regulation 2000. The same has been issued in super

session of the regulations issued in 1983, 1991 as well as a notification of

the year 1985 and that of the year 1988. Para.1.3.3 and the Note have

already been noted in para 3 above.

25. Apart from the academic qualification, wherein atleast 55% of

the marks or an equivalent grade is fixed, that also at Masters Degree level,

what is provided further is that "candidates should have cleared the

eligibility test (NET)". Going by the note, NET shall remain the

compulsory requirement for appointment as Lecturer even for candidates

having Ph.D Degree and exemptions have been given therein. When we

come 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 to

make regulations. Section 2 defines Commission as the University Grants

Commission established under Section 4. Chapter III defines the powers

and functions of the Commission under Section 12. Section 12 of course

makes it a general duty on the Commission to take such steps in

consultation with the University and other bodies concerned as it may deem


W.P.(C).No.22187/2012, etc.
-21-


fit for the promotion and co-ordination of University education and for the

determination and maintenance of "standards of teaching, examination and

research" in Universities. The important limb under the regulation making

power is evidently sub clauses (e), (f) and (g) of Section 26 (1) which are

given below:

"(e) defining the qualifications that should ordinarily be

required of any person to be appointed to the teaching staff of

the University having regard to the branch of education in

which he is expected to give instructions.

(f) defining the minimum standards of instruction for the grant

of 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 by

the UGC as per the recommendation of the Moderation Committee to fix

up eligibility for lectureship is supportable, in law. The aggregate

percentage on a much higher level from the minimum is fixed as a

qualifying criteria.

27. Learned counsel for the petitioners relied upon the following


W.P.(C).No.22187/2012, etc.
-22-


Judgments to show that there is difference between the functions of an

examining body and a selecting body: State of U.P. v. Rafiquddin

and others [AIR 1988 SC 162 (para 12)] and Central Board of

Secondary 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 Hemani

Malhotra v. High Court of Delhi [(2008) 7 SCC 11] and that of this Court

in Jayachandran v. High Court of Kerala [2010 (4) KLT 49] and Vinod

v. State of Kerala [2012 (2) KLT 683] are relied upon to contend that there

cannot be any change in the standards during the midstream and the rules

cannot be changed accordingly. The decision V.C. Banaras Hindu

University and others v. Shrikant [(2006) 11 SCC 42] is relied upon to

contend that there is lack of authority for the committee since the statute

never contemplates such a committee. State of Himachal Pradesh and

others v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh

[(2011) 6 SCC 597], Asha Sharma v. Chandigarh Administration and

others [(2011) 10 SCC 86] are relied upon in a context of principles under

Article 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 the

learned counsel for the petitioners.

28. Learned Standing Counsel Shri S.Krishnamoorthy relied upon

Haryana Financial Corporation and another v. Jagdamba Oil Mills and

Another [(2002) 3 SCC 496], Delhi Administration (Now NCT of Delhi)

v. Manohar Lal [(2002) 7 SCC 222], Bhavnagar University v. Palitana

Sugar Mill (P) Ltd. and others [(2003) 2 SCC 111] to contend for the

position that this Court cannot act as an Appellate Authority by using the

power of judicial review and that precedents, unconnected with the facts

cannot be binding on this Court. The decisions of the Apex Court in

Dr.J.P.Kulshrestha and others v. Chancellor, Allahabad University and

others [(1980) 3 SCC 418], Maharashtra State Board of Secondary and

Higher Secondary Education and another v. Paritosh Bhupeshkumar

Sheth and others [(1984) 4 SCC 27] have been relied upon to contend that

in academic matters, there can be no interference by this Court. The same is

the dictum laid down in All India Council for Technical Education v.

Surinder Kumar Dhawan and others [(2009) 11 SCC 726]. With regard to

the 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 Chaudhary

and others [JT 1996 (8) SC 234], Annamalai University v. Secretary to

Government, Information and Tourism Department and others [(2009)

4 SCC 590]. The larger question that may arise for consideration is whether

the UGC is acting only as an examining body and if so whether it can add

anything to the prescriptions during the middle of the examination process

by changing the rules of the game. The answer posed by the learned

Standing Counsel for the UGC Shri S.Krishnamoorthy is that the exercise of

the power is in consonance with the powers conferred under Section 12 in

fixing standards.

29. Even before going into such nice questions, it is only proper to

refer to the principles stated in two decisions of the Supreme Court relied

upon 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. Sadhana

Chaudhary and others [JT 1996 (8) SC 234].

30. In the first of the decisions in University of Delhi v. Raj Singh

and others [1994 Supplementary (3) SCC 516], the Apex Court

considered 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 whether

the same is binding on the said University. The entire scope of the UGC

Act was examined in that context. The University contended that the

regulations were beyond the competence of the UGC and were only

directory. The said regulation is the front runner to the regulation 2000

namely the regulations 1991 prescribing the qualifications for appointment

of teaching staff. The Apex Court in that context examined Section 12 as

well as Section 26 (1) (e). In para.7 it was held as follows:

"The said Regulation, that is to say, the University

Grants Commission (Qualifications required of a person to be

appointed to the teaching staff of a University and institutions

affiliated to it) Regulations 1991, were made in exercise of the

powers conferred by S.26(1)(e) reading with S.14of the U.G.C.

Act and were notified on 19th September 1991 in the Gazette

of India."

References were made to clause 2 therein prescribing the qualifications and

clause 3 the consequences of the failure of the Universities to abide by the

same. Their Lordships considered the genesis of the regulations in paras.8

and 9 which will throw light on various important aspects, which are

extracted below:


W.P.(C).No.22187/2012, etc.
-26-


"8. The genesis of the said Regulations is to be found in

recommendations made by expert bodies of educationists from

time to time. In the Report of the National Commission on

Teachers-II, dated 23rd March, 1985, it was noted under the

sub-title "evaluating academic achievements" that categorical

statements had been made by various earlier committees and

commissions that examination results were neither reliable nor

valid and comparable. It was recognised that the standards of

performance varied from University, to University and that

Universities which were a little more exacting were less

generous with their scores. A way had to be found to ensure not

only that justice was done but also that it appeared to be done.

Thereafter, in considering an All India Merit Test, the Report

said that it had to be ensured that every cittizen aspiring to be a

teacher at the tertiary level, that is, a lecturer, qualified in terms

of a national yardstick. Since the first appointment pre-

supposed doctoral work and since the UGC as well as the

Council of Scientific and Industrial Research (C.S.I.R.) held an

All-India test for fellowships at this stage, the grade secured by

a candidate in this test could be utilised for drawing up a list of

candidates eligible for lectureships in colleges and Universities

of the country. If this proposal were to be implemented in such

a manner that the test became reliable, valid and comparable

from the academic and the technical points of view, the

problem 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 would

be largely taken care of and the dream of having a national

cadre of academics with high Inter-regional mobility would

have been realised. The Report, therefore, recommended" that

the U.G.C. should incorporate the passing of one of the

national tests at least in grade B+ on a seven-point scale in its

Regulation laying down the minimum qualifications of teachers

and that this should come into force within two years". Under

the sub-title "Professional excellence", the Report reiterated

that it was extremely important to make a rigorous merit-based

selection for the entry level into the teaching profession, and

this view corresponded with that of the vast majority of

teachers.

9. In 1986 the U.G.C. appointed a committee of eminent

men in the field of education under the chairmanship of Prof.

R.C. Mehrotra to examine the structure of emoluments and

conditions of service of University and college teachers and to

make recommendations in this behalf "having regard to

necessity of attracting and retaining talented persons in the

teaching profession and providing advancement and

opportunities to teachers of Universities and colleges. "The

Mehrotra Committee noted what the Sen Committee and the

Review Committee of the U.G.C. 1977, had said in regard to

the need for improved qualifications of teachers and observed

that 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 standards

appeared to have been diluted at several places because of

unplanned growth, inadequate faculty and lack of

infrastructural facilities. It was underlined that one very serious

consequence of dilution of minimum standards for initial

recruitment had been that already existing disparities in the

standards of teaching between rural colleges, urban colleges,

State Universities and Central Universities had tended to get

further aggravated. The Mehrotra Committee recommended

that the minimum qualification for eligibility to a lecturer's

position should be a good M.A., M. Sc., M.Com., or equivalent

degree. While making this recommendation the committee

expressed its full consciousness of the importance of research

experience and capability as an essential input for efficiency

and quality of teaching in most disciplines at the tertiary

(lecturer's) level. It, therefore, strongly recommended the

creation of much better research facilities for Universities and

colleges, particularly those dealing with post-graduate

education to start with. This would enable brilliant lecturers

recruited without an M. Phil or Ph. D. degree to pursue course

and research work in their own institutions which could be

followed for the completion of their dissertation by more

specialised research for a limited period in a more advanced

centre of learning or research. In order to ensure the quality of

new entrants to the teaching profession, the Mehrotra


W.P.(C).No.22187/2012, etc.
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Committee recommended that all aspirants for the post of

lecturer in a University or college should have passed a

national qualifying examination. This recommendation, it said,

was in line with the recommendation of the National

Commission on Teachers-II. Such a test would have the merit

of removing disparities in standards of examination at the

Master's level between different Universities. The Mehrotra

Committee hoped that by this step local influence would be

minimised and the eligibility zone for recruitment would

become wider. The proposed examination was to be a

qualifying one in the sense that it determined only eligibility

and not selection. The Mehrotra Committee recommended the

following minimum qualification for the post of lecturer:

'(i) Qualifying at the National Test conducted for

the purpose by the UGC or any other agency

approved by the UGC.

(ii) Master's degree with at least fifty five per cent

marks or its equivalent grade and good academic

record.

The minimum qualification mentioned above

should not be relaxed even for candidates

possessing M. Phil, Ph.D. qualification at the time

recruitment.'"

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 was

prescribed in the light of the fact that the standards in various Universities

may vary. The matter was initially reported by the National Commission on

Teachers II dated 22/03/1985 in its report. Therein, the Committee was of

the view that the examination results under different Universities were not

comparable and that the standards of performance varied from University to

University. Therefore, an all India merit test was sought to be introduced.

Again the matter was considered when the UGC appointed in 1986 a

Committee under the Chairmanship of Professor R.C. Mehrotra which was

primarily to examine the structure of emoluments, conditions of service of

the University and College Teachers. They found that there were disparities

in the standards of teaching between the Rural Colleges, Urban Colleges,

State Universities and Central Universities. Finally, they recommended that

in order to ensure the quality of new entrants to the teaching profession, all

aspirants for the post of Lecturer in the University or College should have

passed a National qualifying examination. The nature of the examination

proposed is evident from the following sentence: "the proposed examination

was to be a qualifying one in the sense that it determine only eligibility and

not 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 aspects

on 17/06/1987. After considering various contentions and the Entry 66 of

List I, it was held in para 20 that the UGC Act is enacted under the

provisions of Entry 66 of List I of the Seventh Schedule to the Constitution

to carry out the objective thereof. After noting the same and Section 12 of

the Act, the Apex Court in para.20 held as follows:

"It is very important to note that a duty is cast upon the

Commission to take "all such steps as it may think fit .... for the

determination 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 the

educational qualifications required for holding the post of

lecturer in Universities and colleges to appear for a written test,

the passing of which would establish that they possess the

minimal proficiency for holding such post. The need for such

test is demonstrated by the reports of the commissions and

committees of educationists referred to above which take note

of the disparities in the standards of education in the various

Universities in the country. It is patent that the holder of a post-

graduate degree from one University is not necessarily of the

same standard as the holder of the same postgraduate degree


W.P.(C).No.22187/2012, etc.
-32-


from another University. That is the rationale of the test

prescribed by the said Regulations. It falls squarely within the

scope of Entry 66 and the U.G.C. Act inasmuch as it is

intended to co-ordinate standards and the U.G.C. Act is armed

with the power to take all such steps as it may think fit in this

behalf. For performing its general duty and its other functions

under the U.G.C. Act, the U.G.C. is invested with the powers

specified in the various clauses of S.12. These include the

power to recommend to a University the measures necessary

for the improvement of University education and to advise in

respect of the action to be taken for the purpose of

implementing such recommendation (clause (d).The U.G.C. is

also invested with the power to perform such other functions as

may be prescribed or as may be deemed necessary by it for

advancing the cause of higher education in India or as may be

incidental or conducive to the discharge of such functions

(clause (j). These two clauses are also wide enough to empower

the 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 grant

if the University fails within a reasonable time to comply with

its recommendation,but it is required to do so only after taking

into consideration the cause, if any, shown by the University

for such failure. Section 26 authorises the U.G.C. to make

regulations consistent with the U.G.C. Act and the rules made

thereunder, inter alia, defining the qualifications that should


W.P.(C).No.22187/2012, etc.
-33-


ordinarily be required for any person to be appointed to the

teaching staff of a University, having regard to the branch of

education in which he is expected to give instruction (clause(e)

of sub-sec.(1)); and regulating the maintenance of standards

and the co-ordination of work or facilities in Universities (cl.

(g)). We have no doubt that the word 'defining' means setting

out precisely or specifically. The word 'qualifications' as used

in clause (e), is of wide amplitude and would include the

requirement of passing a basic eligibility test prescribed by the

U.G.C. The word 'qualifications' in clause (e) is certainly wider

than the word 'qualification' defined in S.12A(2)(d), which in

expressly stated terms is a definition that applies only to the

provisions of S 12A. Were this definition of qualification, as

meaning a degree or another qualification awarded by a

University, 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 basic

eligibility test prescribed by the UGC" to establish that they possess the

minimal proficiency for holding the post. The regulations were examined in

para.21 and finally, it was held thus:

"The said Regulations do not impinge upon the power of

the University to select its teachers. The University may still


W.P.(C).No.22187/2012, etc.
-34-


select its lecturers by written test and interview or either.

Successful candidates at the basic eligibility test prescribed by

the said Regulations are awarded no marks or ranks and,

therefore, all who have cleared it stand at the same level. There

is, therefore, no element of selection in the process. The

University's autonomy is not entrenched' upon by the said

Regulations."

The important aspects to be mentioned, going by the said declaration of

law by the Apex Court are the following:

"i) As far as the test is concerned, the successful

candidates 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 that

has arisen herein.

32. The decision of the Apex Court in University Grants

Commission etc. v. Sadhana Chaudhary and others [JT 1996 (8) SC

234] relied upon by the learned Standing Counsel, considered the very same

regulation and the relaxation given for appearing in the eligibility test to

certain candidates by two circulars. After the circulars were issued, a

proviso was added to the regulation. It was provided that the candidates


W.P.(C).No.22187/2012, etc.
-35-


who have submitted Ph.D thesis or passed the M.Phil examination by 31st

December, 1933 are exempted from the eligibility test for Lecturers

conducted by the UGC, CSIR or similar test accredited by the UGC. The

challenge was on the cut-off date selected by the UGC. It was held that the

same is not arbitrary or violative for Article 14 of the Constitution of India

and that the choice of date cannot always be dubbed as arbitrary even if no

particular reason is forthwith coming for the choice unless it is shown to be

capricious or whimsical in the circumstances. The said finding is relied

upon by the learned Standing Counsel Shri S.Krishnamoorthy to support the

steps taken herein. But the context is evidently different and it may not

have application here.

33. As far as the scope of judicial review in academic matters, which

is the another contention vehemently raised by Shri S.Krishnamoorthy is

concerned, the position is well-known. In Dr.J.P.Kulshrestha and others

v. Chancellor, Allahabad University and others [(1980) 3 SCC 418], the

scope of judicial review in academic matters, was explained in lucid terms

in paragraphs 1, 2 and 17 thus:

"1...... While legal shibboleths like "hand-off universities" and

meticulous forensic invigilation of educational organs may


W.P.(C).No.22187/2012, etc.
-36-


both be wrong, a balanced approach of leaving universities in

their internal functioning well alone to a large extent, but

striking at illegalities and injustices, if committed by however

high an authority, educational or other, will resolve the

problem raised by counsel before us in this appeal from a

judgment of the Division Bench of the High Court.

2. Once we recognise the basic yet simple proposition that no

islands of insubordination to the rule of law exist in our

Republic and that discretion to disobey the mandate of the law

does not belong even to university organs or other authorities,

the retreat of the court at the sight of an academic body, as has

happened here, cannot be approved. On the facts and features

of this case such a balanced exercise of jurisdiction will, if we

may anticipate our ultimate conclusion, result in the reversal of

the appellate judgment and the restoration in substantial

measure, of the learned Single Judge's judgment quashing the

selection made by the university bodies for the posts of

Readers in English way back in 1973."

17. Rulings of this court were cited before us to hammer home

the point that the court should not substitute its judgment for

that of academicians when the dispute relates to educational

affairs. While there is no absolute ban, it is a rule of prudence

that courts should hesitate to dislodge decision of academic

bodies. But university organs, for that matter any authority in

our system, is bound by the rule of law and cannot be a law


W.P.(C).No.22187/2012, etc.
-37-


unto itself. If the Chancellor or any other authority lesser in

level decides an academic matter or an educational question,

the court keeps its hands off; but where a provision of law has

to be read understood, it is not fair to keep the court out. In

Govinda Rao's case, (1964) 4 SCR 575 at p. 586: (AIR 1965

SC 491) Gajendragadkar, J. (as he then was) struck the right

note :

"What the High Court should have considered is

whether the appointment made by the Chancellor

had contravened any statutory or binding rule or

ordinance and in doing so; the High Court should

have shown due regard to the opinions expressed

by the Board and its recommendations on which

the Chancellor has acted." (Emphasis added)

The later decisions cited before us proudly conform to the rule

to caution sounded in Govinda Rao. But to respect an authority

is not to worship it unquestioningly since the bhakti cult is

inept in the critical field of law. In short, while dealing with

legal affairs which have an impact on academic bodies, the

views of educational experts are entitled to great consideration

but not to exclusive wisdom. Moreover, the present case is so

simple that profound doctrines about academic autonomy have

no place here." (Emphasis supplied)

This point was again reiterated in Maharashtra State Board of Secondary


W.P.(C).No.22187/2012, etc.
-38-


and Higher Secondary Education and another v. Paritosh

Bhupeshkumar Sheth and others [(1984) 4 SCC 27] in para 29 thus:

"The Court should be extremely reluctant to substitute its own

views as to what is wise prudent and proper in relation to

academic matters in preference to those formulated by

professional men possessing technical expertise and rich

experience of actual day-to-day working of educational

institutions and departments controlling them. It will be wholly

wrong for the Court to make a pedantic and purely idealistic

approach to the problems of this nature, isolated from the actual

realities and grass root problems involved in the working of the

system and unmindful of the consequences which would

emanate if a purely idealistic view as opposed to a pragmatic

one were to be propounded."

34. In All India Council for Technical Education v. Surinder

Kumar Dhawan and others [(2009) 11 SCC 726] it was held that Court

will 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 education

and role of courts are well defined by a simple rule. If it is a

question of educational policy or an issue involving academic

matter, the courts keep their hands off. If any provision of law


W.P.(C).No.22187/2012, etc.
-39-


or principle of law has to be interpreted, applied or enforced,

with reference to or connected with education, courts will step

in. In Dr. J.P.Kulshreshtha v. Chancellor, Allahabad University

[1980 (3) SCC 418] this Court observed :

'11. .... Judges must not rush in where even

educationists fear to tread. ...

* * *

17. ... While there is no absolute bar, it is a rule of

prudence that courts should hesitate to dislodge

decisions of academic bodies.' "

35. Therefore, there is no absolute bar in considering the matter as

contended by the learned Standing Counsel. The question will still be

whether 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 Central

Board of Secondary Education and another v. Aditya Bandopadhyay

and others [(2011) 8 SCC 497] explained the powers of an examining

body. "In State of U.P's case [AIR 1988 SC 162] it was held in para 12

thus:

"12. There is a basic difference between an examination

held by a college or university or examining body to award


W.P.(C).No.22187/2012, etc.
-40-


degree to candidates appearing at the examination and a

competitive examination. The examining body or the authority

prescribes minimum pass marks. If a person obtains the

minimum marks as prescribed by the authority he is declared

successful and placed in the respective grade according to the

number of marks obtained by him. In such a case it would be

obligatory on the examining authority to prescribe marks for

passing the examination as well as for securing different grades

well in advance. A competitive examination on the other hand

is of different character. The purpose and object of the

competitive examination is to select most suitable candidates

for appointment to public services. A person may obtain

sufficiently high marks and yet he may not be selected on

account of the limited number of posts and availability of

persons of higher quality. Having regard to the nature and

characteristics of a competitive examination it is not possible

nor necessary to give notice to the candidates about the

minimum marks which the Commission may determine for

purposes of eliminating the unsuitable candidates. The rule of

natural 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 a

process of verification/examination/testing of their knowledge,


W.P.(C).No.22187/2012, etc.
-41-


ability or skill, or to ascertain whether they can be said to have

successfully completed or passed the course of study or

training or to find out whether such person is suitable for a

particular post, job or assignment. An examining body, if it is

a public authority entrusted with public functions, is required

to act fairly, reasonably, uniformly and consistently for public

good and in public interest."

37. We will now come to the general principles governing the

absence of power of changing rules in the midstream as laid down by the

Apex Court in Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC

11 (para 15)], K.Manjusree v. State of Andhra Pradesh and another

[(2008) 3 SCC 512] para 32 as well as Jayachandran v. High Court of

Kerala [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 were

considered in the light of the Apex Court decision reported in

K.Manjusree v. State of Andhra Pradesh and another [(2008) 3 SCC

512]. The case therein was one wherein minimum marks for viva voce was

prescribed after written test was over. It was held that the same cannot be

permitted. The Apex Court was of the view that the authority making rules

regulating selection can prescribe by rules, the minimum marks for both


W.P.(C).No.22187/2012, etc.
-42-


written examination and viva voce but if the minimum marks are not

prescribed for viva voce before commencement of selection process, the

authority concerned, cannot either during the selection process or after the

selection process add an additional requirement/qualification that the

candidate should also secure minimum marks in the interview. The para.15

laid down the principles thus:

"There is no manner of doubt that the authority making rules

regulating the selection can prescribe by rules the minimum marks

both for written examination and viva voce, but if minimum marks

are not prescribed for viva voce before the commencement of

selection process, the authority concerned, cannot either during the

selection process or after the selection process add an additional

requirement/qualification that the candidate should also secure

minimum marks in the interview. Therefore, this Court is of the

opinion that prescription of minimum marks by the respondent at

viva voce test was illegal."



In para.14 Their Lordships relied upon the decisions of the Apex Court in

K.Manjusree v. State of Andhra Pradesh and another [(2008) 3 SCC

512]. In the said decision in para.33 it was explained thus:

"The resolution dated 30.11.2004 merely adopted the


W.P.(C).No.22187/2012, etc.
-43-


procedure prescribed earlier. The previous procedure was not to

have any minimum marks for interview. Therefore, extending the

minimum marks prescribed for written examination, to interviews,

in the selection process is impermissible. We may clarify that

prescription of minimum marks for any interview is not illegal. We

have no doubt that the authority making rules regulating the

selection, can prescribe by rules, the minimum marks both for

written examination and interviews, or prescribe minimum marks

for written examination but not for interview, or may not prescribe

any minimum marks for either written examination or interview.

Where the rules do not prescribe any procedure, the Selection

Committee may also prescribe the minimum marks, stated above.

But if the Selection Committee want to prescribe minimum marks

for interview, it should do so before the commencement of

selection process. If the selection committee prescribed minimum

marks only for the written examination, before the commencement

of selection process, it cannot either during the selection process or

after the selection process, add an additional requirement that the

candidates should also secure minimum marks in the interview.

What we have found to be illegal, is changing the criteria after

completion of the selection process, when the entire selection

proceeded on the basis that there will be no minimum marks for the

interview."

38. In Jayachandran v. High Court of Kerala [2010 (4) KLT 49],


W.P.(C).No.22187/2012, etc.
-44-


this Court relied upon the above decisions in a case where moderation

marks were awarded for selection to the post of District and Sessions Judge

under the Higher Judicial Service Special Rules 1961 (Kerala). In para.17,

it was held thus:

" Though the rules specify the percentage of the posts to be filled

up from the members of the Bar, the rules are silent about the

procedure of selection to be followed for selecting the candidates

from the Bar. It is too well settled in law that any activity of any

one of the organs of the State is required to be rational and non-

arbitrary in a system of governance where the principle of the rule

of law is all pervasive."

In para.20, the decision of the Apex Court in K.Manjusree v. State of

Andhra Pradesh and another [(2008) 3 SCC 512] was relied upon and

para.27 of the said Judgment was quoted. In fact, the Division Bench

observed in para.25 as follows:

"25. We may make it clear that it is not the case of any one of

the petitioners that the decision of the High Court to award

moderation lacks in bona fides. The challenge is on a different

ground that such a decision is impermissible in law and

inconsistent with the requirements of Arts.14 and 16 of the

Constitution of India. It need not be emphasised that every


W.P.(C).No.22187/2012, etc.
-45-


bona fide decision need not necessarily be a legally right

decision. On the other hand, a decision which is ostensibly

legal may still be liable to be declared illegal if the decision is

vitiated by mala fides. The decision of the Recruitment

Committee to provide moderation, in our view, is straight in

the teeth of the decision of the Supreme Court in Umesh

Chandra Shukla's case referred above."

The view taken is that "it need not be emphasised that every bona fide

decision be a legally right decision." Therefore, the introduction of new

criteria by change of the rules in the midstream was not recognised by the

said Judgment also. Therefore, it is well settled that the introduction of

such a requirement after the entire selection process is over, will amount to

change in the rules of the game after the game was played, which is clearly

impermissible according to the Apex Court in K.Manjusree v. State of

Andhra Pradesh and another [(2008) 3 SCC 512] in para 27. The

decision of the Full Bench of this Court in Dr.Cyril Johnson v. State of

Kerala and others [2009 (4) KHC 404 (FB)] is an authority for the

proposition that a selection committee which is statutorily constituted is

bound by the norms prescribed by the statute and the selection committee

has no jurisdiction or authority either to relax any of the norms or vary the


W.P.(C).No.22187/2012, etc.
-46-


same. The Full Bench has elaborated the principles thus in paras.27, 32,

and 39:

"The selection committee which has been statutorily constituted

should follow the norms for assessing the merit of rival candidates,

if such norms are laid down in the statute. The selection committee

has no jurisdiction or authority to either relax any of the norms or

vary the same. If the statute which provides for the constitution of

the selection committee does not provide for the norms for the

selection committee, then, it is open to the appointing authority to

lay down instructions and guidelines providing for such norms. In

such a case, the selection committee is bound to follow such

administrative instructions in conducting selection. In cases where

the norms governing the selection are not laid down either in the

statutory provisions or in administrative instructions, the selection

committee constituted to conduct selection would not have any

inherent jurisdiction or authority to evolve its own norms for

conducting the selection. If it evolves its own norms, then its action

will be without authority and jurisdiction and selection would be

vitiated. The dictum laid down in Antony P.A. V, Krishnadas M.N.,

IR 2007 (1) Kerala 244, which upholds the contrary position does

not lay down the correct law and it is hereby overruled."

39. Of course, that was a case of selection. As regards the principles

under Article 14 of the Constitution of India is concerned, the same as


W.P.(C).No.22187/2012, etc.
-47-


explained by the Apex Court in Asha Sharma v. Chandigarh

Administration and others [(2011) 10 SCC 86] was relied upon by the

learned counsel for the petitioners. In para.14, the principle was explained

thus:

"Action by the State, whether administrative or executive, has to

be fair and in consonance with the statutory provisions and rules.

Even if no rules are in force to govern executive action still such

action,especially if it would potentially affect the rights of the

parties, should be just, fair and transparent. Arbitrariness in State

action, even where the rules vest discretion to an authority, has to

be impermissible. The exercise of discretion, in line with

principles of fairness and good governance, is an implied

obligation upon the authorities, when vested with the powers to

pass orders of administrative nature. The standard of fairness is

also dependent upon certainty in State action, that is, the class of

persons, subject to regulation by the Allotment Rules, must be

able to reasonably anticipate the order for the action that the State

is likely to take in a given situation. Arbitrariness and

determination have inbuilt element of uncertainty as the decisions

of the State would then differ from person to person and from

situation to situation, even if the determinative factions of the

situations in question were identical. This uncertainty must be

avoided."


W.P.(C).No.22187/2012, etc.
-48-


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 the

State is likely to take in a given situation. In the context of this case

wherein the argument raised is that the new eligibility criteria was never

announced, 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 the

difference between examination held by a College or University or

examining body and a competitive examination. The important observation

made therein is that it would be obligatory on the examining authority to

prescribe marks in the examination as well as for securing different grades

well in advance and that a competitive examination on the other hand is

different character. In a competitive examination, the emphasis will be to

select the most suitable candidates for appointment in public service and the

number of posts may determine the requirement therein. The same is absent

here.

42. As far as the argument of the learned Standing Counsel for the

UGC that the requirement of Section 12 empowers the UGC to fix a

standard is concerned, the question is interlinked with the issue whether


W.P.(C).No.22187/2012, etc.
-49-


during the conduct of a test like this, can they exercise the said power

without announcing the same to the candidates. Such an empowerment will

not alone justify an action like this. The candidates were told by the

notification about the minimum marks to be obtained which are definite.

Now, the aggregate of three papers have been raised to 65% for general

candidates and other like criteria for other candidates. The parties were

never told about the same before the stage of the examination. Definitely,

they were entitled to know about the same since in the scheme of the

examination itself it can be seen that the candidates will have to prepare in

terms of the specification in the notification itself for attaining the

minimum. Actually, they have been given a surprise by prescribing 65% on

the 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 can

definitely be seen that it affected adversely, the expectations of large

number of candidates like the petitioners. Therefore, even if there is power

under Section 12 to fix a standard, it ought to have been exercised in a

proper, fair and reasonable manner and not whimsically. Herein, the

minimum marks have been announced by the notification itself even though

now it is contended that it is only for putting them in a zone of


W.P.(C).No.22187/2012, etc.
-50-


consideration. The said minimum marks were in respect of each one of the

papers. Now an aggregate percentage in respect of all the three papers has

been fixed by raising it to 65%. Therefore, the minimum earlier fixed has

now merged in the aggregate marks. If it had to be adopted as a uniform

criteria, there was no difficulty to announce it at the inception itself, so that

the candidates would have prepared for the test accordingly. The

enhancement done by the UGC is by raising the minimum obtained in

respect of each paper to a far higher level, viz. upto 65%. The last of the

exercise done is by fixing it at 65% for general candidates, 60% for OBC

and 55% for SC/ST/PWD as a qualifying criteria and eligibility for

lectureship 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 last

stage. The same will therefore be hit by Article 14 of the Constitution of

India.

43. In terms of Regulations 2000 also, it can be seen that what is

required is only clearance of the NET. As explained by the Supreme Court

in Raj Singh's case (1994 Supp. 3 SCC 516) what is being conducted is not

a selection. Herein, the UGC has prescribed it as a qualifying criteria and


W.P.(C).No.22187/2012, etc.
-51-


eligibility for Lectureship. The qualification for Lectureship is already

fixed under para.1.3.3 which is only clearance of the NET and the aggregate

now shown is not prescribed by the regulation. As far as the academic

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 standards

at the national level for prescribing a minimum eligibility standard for

applying for the post of Lecturer conducted by the University or the College

concerned. There is no mark or rank and all the candidates will be treated at

the same level. They will have to face the test or interview at the stage of

selection to the post of Lecturer. The same is therefore of great importance

in understanding the legal position. Therefore, clearance of NET alone

being the minimum eligibility standard and what is attempted now in fixing

an aggregate marks itself as a qualifying criteria and eligibility, it goes

beyond scope of the regulations, definitely, and will be ultra vires. As

rightly argued by the learned counsel for the petitioners, there is no power

to fix a further eligibility for Lectureship as attempted here. Even if such an

eligibility condition can be prescribed that can only be by the regulation

making power. The fixing of standards in any such context can only be

through subordinate legislation and not by executive orders.


W.P.(C).No.22187/2012, etc.
-52-


44. The question whether independent of any regulation, the same

could be supported, will therefore have to be considered. Herein, we will

have to understand the power as explained by the Apex Court in Raj

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 the

UGC to fix the standards will have to be understood in the light of Section

12 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 Rules

inter alia defining qualifications. The word defining means setting out

precisely or specifically and the word 'qualifications' in clause (e) is of wide

amplitude and would include the requirement of passing a basic eligibility

test prescribed by the UGC. It is in that context, the regulation making

power on the UGC was recognised. Therefore, the method of fixing the

standards, is specifically dealt with in Section 12 read along with Section

26(1)(e) and (g). It is therefore clear that if the UGC wanted to have any

other qualifying criteria as eligibility for appointment as Lecturer, as now

contended, the source of power for the same could be successfully traced

out, from out of the provisions of the Act, viz. Section 26(1)(e) which


W.P.(C).No.22187/2012, etc.
-53-


is only the subordinate legislation making power in the form of regulations

which is not the one undertaken here, obviously. The same is also clear

from para 42 of Annamalai University's case {(2009) 4 SCC 590} which

reads as follows:

"The provisions of the UGC Act are binding on all universities

whether conventional or open. Its powers are very broad. The

Regulations framed by it in terms of clauses (e), (f), (g) and (h) of

sub-section (1) of Section 26 are of wide amplitude. They apply

equally to open universities as also to formal conventional

universities. In the matter of higher education, it is necessary to

maintain minimum standards of instructions. Such minimum

standards of instructions are required to be defined by UGC. The

standards and the coordination of work or facilities in universities

must be maintained and for that purpose required to be regulated.

The powers of UGC under Sections 26(1)(f) and 26(1)(g) are very

broad in nature. Subordinate legislation as is well known when

validly made becomes part of the Act. We have noticed

hereinbefore that the functions of UGC are all-perversive in

respect of the matters specified in clause (d) of sub-section (1) of

Section 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. Their


W.P.(C).No.22187/2012, etc.
-54-


Lordships were therefore of the view that subordinate legislation as is

wellknown when validly made becomes part of the Act.

45. Herein, what we find under the regulation is that the candidates

will have to clear NET. It is not prescribed in the regulation that to make

them eligible for appointment as Lecturer, they should obtain 65%, 60%

and 55% in the NET. The prescription herein is different from fixing a cut

off mark for passing a test since what is attempted is a qualifying criteria of

eligibility, as pointed out in the counter affidavit.

46. Learned Standing Counsel, Shri Krishnamoorthy while justifying

the fixing of aggregate marks as 65%, 60% and 55%, submitted that it was

done by analysing the table of performance of each candidate, in which

the teaching/research aptitude of candidate, reasoning ability,

comprehension, divergent thinking and in connection with the subjects

selected by the candidates for maintaining the standard of education. It was

said that after every examination, the standard of performance is examined

by a committee, duly constituted for the said purpose. Upto 2011 the

committee recommended to reduce the percentage of marks by 5%. It is

submitted that this year the Committee recommended to fix the aggregate

since all the papers were objective type and negative marks were also taken


W.P.(C).No.22187/2012, etc.
-55-


away. The said exercise is sought to be justified as one wherein the UGC is

empowered to maintain the standard in the education system and that

accordingly they have got the power to do the same. It was also said that

the same can be done only after examination. In fact, it was also submitted

that more than two lakhs of candidates have secured the minimum marks

and were in the zone of consideration and therefore to maintain the

standard, a higher aggregate was fixed.

47. Evidently, as far as the clearance of the test is concerned, going

by the decision of the Apex Court in Raj Singh's case (1994 Supp. (3) SCC

516) it is not a selection and what is of importance to notice is that what is

required is only passing of the test. Therefore, as rightly contended by the

learned counsel for the petitioners, it is not a case where like an appointing

authority they will have to fix a cut off mark after finding out the

requirement, going by the number of posts and other criteria at the final

stages 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 the

mode also is prescribed by them. As far as NET is concerned, it was

originally fixed as evident from the reports of various committees and the

decision of the Apex Court in Raj Singh's case (supra), that there was a


W.P.(C).No.22187/2012, etc.
-56-


disparity in the University education between different Universities and

Colleges and to remove it so that local influence will be minimised and

eligibility zone would become wider. This was the justification for

introducing the test. Therefore, we will have to find out whether, by

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 a

relevant consideration at this stage since that is left to the Universities and

Colleges to ponder over when they are finally selecting the candidates.

Therefore, the said argument cannot hold good. In fact, it is clear from the

averments in the counter affidavit that the Committee was formed as

Moderation Committee. Moderation is a method adopted when there are

large number of candidates in an examination and when the answer scripts

are evaluated by different examiners, some formula will have to be

evolved as the valuation of the answer scripts will depend upon the

subjectivity of the respective examiners while awarding marks. They will

be applying their own yardsticks in respect of the answer scripts. It is in

that context the method of moderation will be applied, if authorised to do

so by the body concerned. In fact, learned counsel for the petitioners


W.P.(C).No.22187/2012, etc.
-57-


vehemently contended that such a Committee cannot fix up a qualification

at all for an appointment for lectureship. The said contention was raised in

the 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

separate regulation itself is necessary. Thus, it can be seen that when the

said Committee has fixed up an eligibility for the purpose of appointment

as Lecturer without the support of the regulation, the same cannot be

accepted.

48. Shri Krishnamoorthy explained that an expert body like CSIR is

prescribing in the notification only minimum marks and not qualifying

marks. The provisions under which they have acted upon like that is not

evident. We need not go into such aspects to find out whether the

qualifying marks now fixed is justifiable. Even if for arguments sake it

can be accepted that the UGC is not purely an examining body as contended

by the learned Standing Counsel, but while conducting the test for NET

herein, the said exercise alone is being done by the standards already fixed

under the regulation. If we want to recognise any such power as is

contended now for the examining body at the final stage of examination, it

will not be possible in the light of the principles laid down by the Apex


W.P.(C).No.22187/2012, etc.
-58-


Court that the rules of game cannot be changed at that stage. In fact, as

held by the Supreme Court in Hemani Malhotra's case {(2008) 7 SCC 11}

in para 15, the authority making the rules regulating the selection can

prescribe by rules the minimum marks both for written examination and

viva voce, but if minimum marks are not prescribed for viva voce before the

commencement of selection process, the authority concerned cannot either

during the selection process or after the selection process add an additional

requirement/qualification that the candidate should also secure minimum

marks in the interview. The exercise herein cannot be justified in the light

of the said broad legal principle. Of course, if proper regulations were

framed earlier and properly notified earlier, they could have relied upon the

same, which is totally absent here. Therefore, I am not called upon at this

stage, to declare that the UGC is not at all having a power to do so, at any

time before the notification is issued, as the argument of the learned

counsel for the petitioners is that after the test and evaluation a further

criteria cannot be fixed, going by the various decisions of the Apex Court

and that any further qualification can be fixed only by a regulation. Herein,

as an examining body, they were justified only in fixing the minimum marks

for each paper initially for clearing NET by way of a notification.


W.P.(C).No.22187/2012, etc.
-59-


49. Learned Standing Counsel, Shri Krishnamoorthy submitted that

in the notification itself it was specified that only candidates who secure

minimum required marks in each paper separately will be considered for

final preparation of results and that the final qualifying criteria for JRF and

eligibility for lectureship shall be fixed by the UGC before declaration of

results and therefore the candidates were really put on notice of the same.

We are on the question whether the fixation of eligibility for lectureship is

justified or not. The same cannot be justified and the said prescription in

the notification will not come to the aid. Even the said prescription in

regard to the final qualifying criteria was kept totally silent in the

notification, the same is also therefore relevant to consider its legal validity.

50. The decision of the Full Bench in Udayan v. Kerala Agro

Machinery Corporation Ltd. (2011 (3) KLT 952 - FB) relied upon by Shri

Krishnamoorthy will not apply here, as it was dealing with the system of

shortlisting for a final round of selection, which is not the case here.

51. Shri Krishnamoorthy, learned Standing Counsel relied upon the

principles stated by the Apex Court in Haryana Financial Corporation

and another v. Jagadamba Oil Mills & another {(2002 (3) SCC 496},

Bhavanagar University v. Palitana Sugar Mill (P) Ltd. & others {(2003)


W.P.(C).No.22187/2012, etc.
-60-


2 SCC 111) and other decisions to contend that precedents will have to be

judged on the basis of the facts and legal principles deduced therefrom and

therefore divorced from the facts, there cannot be any blind approach.

There cannot be any quarrel to that. But herein, we are on a general

principle laid down by various decisions of the Apex Court that the rules of

the game cannot be changed midstream. The said principle when applied

herein, it can be seen that the action is unsupportable. The said principle

had been applied in various situations, as evident from the decisions

already discussed, viz. Manjusree's case {(2008) 3 SCC 512}, Hemani

Malhotra's case {(2008) 7 SCC 11} and Jayachandran's case (2010 (4)

KLT 49). The contention that in academic matters this Court will have to

keep off its hands also cannot therefore be accepted, as the Apex Court in

various decisions held that when a principle of law has to be applied the

court cannot retreat at the sight of the academic body ( Dr.J.P.

Kulshrestha's case - {(1980) 3 SCC 418} and later decisions. Any decision

of the academic body therefore can be subjected to such a scrutiny to

understand the legal validity of the same.

52. Shri Krishnamoorthy has also relied upon a recent judgment of

the Apex Court in Civll Appeal Nos.4959-4962 of 2011. Therein, the


W.P.(C).No.22187/2012, etc.
-61-


minimum qualifying marks for viva voce was introduced just two or three

days before the commencement of the oral tests though it was not stipulated

in the advertisement issued by the Public Service Commission. The matter

was examined in the light of the statutory recruitment rules itself, wherein

Rule 12(3) specifically empowered the Commission to fix the qualifying

marks 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 the

recruitment rules, the Apex Court examined the question. In para 21 it was

held as follows:

" It is necessary to bear in mind that no objection can be taken to

the fixing of the cut off marks separately for the viva voce as that

is the mandate of the statutory rules governing the recruitment.

What alone can be objected to is the omission to specify the cut

off 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 the

rules framed under Article 309 of the Constitution governing the

selection process mandated that there would be minimum

qualifying marks each for the written test and the oral interview,

the cut off mark for viva voce was not specified in the

advertisement. In view of the omission, there were only two


W.P.(C).No.22187/2012, etc.
-62-


courses open. One, to carry on with the selection process and to

complete it without fixing any cut off mark for the viva voce and

to prepare the select list on the basis of the aggregate of marks

obtained by the candidates in the written test and the viva voce.

That would have been clearly wrong and in violation of the

statutory rule governing the selection. The other course was to fix

the cut off mark for the viva voce and to notify the candidates

called for interview about it. This is the course that the

Commission followed. This was in compliance with the rules and

it 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 the

light of the recruitment rules. Herein, the Regulations do not confer any

such power to fix a higher criteria and eligibility at the final stage of the

examination itself. Therefore, the said principles may not help to advance

the contentions of the learned Standing Counsel. One of the contentions

raised by Shri Krishnamoorthy is that many of the candidates in different

parts of the country have fairly accepted the condition and the petitioners in

these writ petitions alone have approached for an adjudication by filing writ

petitions. But that cannot be a yardstick in assessing the legality of the act

when a direct challenge is made on the basis of the settled legal principles.


W.P.(C).No.22187/2012, etc.
-63-


53. Therefore, the fixing of the higher aggregate marks as 65%, 60%

and 55% for three categories, that too just before the announcement of the

result, cannot be justified as the same is not supportable in law in the light

of the principles already discussed. What was absent in the regulation

cannot be introduced at the fag end of the examination, just before the

announcement of the result, whatever may be the justification for the same.

54. In the light of the above, the writ petitions are allowed. The

proceedings fixing the category-wise qualifying criteria for Lectureship

eligibility impugned in the writ petitions, is quashed. It is declared that all

the petitioners who have obtained the separate minimum prescribed in the

notification for Papers I, II and III, have cleared the NET and appropriate

follow up actions will be taken to issue certificates to them within one

month from the date of receipt of a certified copy of this judgment. No

costs.



(T.R.RAMACHANDRAN NAIR, JUDGE)



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