nagpur high court final verdict

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1 Writ petition no.4996.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,NAGPUR BENCH, NAGPUR.

1. WRIT PETITION NO. 4996 OF 2012

Neha Anil Bobde (Gadekar)Aged about 31 years.Occu: Contributory Lecturer, PGTD Law,RTMNU, Nagpur.R/o: 53, Laxminagar, Nagpur22Disctrict: Nagpur.

...PETITIONER.

VERSUS

1. University Grants Commission,Through it’s Chairman, Bahadur Shah Zafar Marg, New Delhi 110002.

2. University Grants Commission throughThe Head, NET Bureau, South Campus of Delhi University, Benito Juarez Marg,New Delbi 110021.

.. RESPONDENTS.

Mr. S.V.Purohit, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondents 1 and 2.

2. Writ Petition No. 6006 of 2012

Anita N. Sable,aged about years, Occupation:

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Advocate, R/o: Zingabai Takli,Nagpur.

... PetitionerVersus.

1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg,New Delhi – 110021through its Head.

2. The CoOrdinator,UGCNET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.

.....Respondents.Mr. S. Zia Quazi, Advocates for petitioner.Mr. S.K.Mishra, ASGI for respondent no.1.Mr. P.B.Patil, Advocate for respondent no.2


Himanshu s/o Shankarrao Zaparde,Aged about 29 years, Occ. Service,R/o: At Post Paratwada, Dist. Amravati.

.....Petitioner..versus.

1. University Grants CommissionThrough its’ Chairman, Bahadur ShahZafar Marg, New Delhi – 110002.

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2. University Grants Commissionthrough The Head, NET Bureau,South Campus of Delhi University,Benito Juarez Marg, New Delhi – 110 021.

...Respondents Mr. N.R.Saboo, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondents 1 and 2.


1. Ashvini Anant Kalve,Aged Major, Occu: Service,R/o: 254, Alok, Canal Road,Dharampeth, Nagpur 440 010.

2. Sayyed Tousif Sayyed AtherAged Major, Occu: Service,C/o: Mohammad Rafique, Plot No. 40A,Second Floor, Near Nuri Masjid, RathodLayout, Anant Nagar, Nagpur.

...Petitioners.versus.

1. The University Grants Commission,Through its Chairman,National Educational Testing (Bureau)University of Delhi (South Campus),Benito Jaurez Marg. Delhi.

2. University Grants Commission,National Educational Testing Centre,Through its Coordinator,Rashtra Sant Tukdoji Maharaj NagpurUniversity, Nagpur.

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3. Rashtra Sant Tukdoji Maharaj NagpurUniversity, Nagpur, through its Registrar.

..Respondents.Mr. S.S.Sanyal ,Advocates for petitioner.Mr. S.K.Mishra, ASGI for respondents 1 and 2.

5. Writ Petition No. 1030 of 2013.

Parul w/o Shashank Chaubey,A/o 33 years, Occupation: Lecturer,R/o: 144 Sathe Marg, Dhantoli, Nagpur.

...Petitioner..versus.

1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg,New Delhi110021,through its Head.

2. The Coordinator,UGCNET Centre, Nagpur RashtrasantTukdoji Maharaj NagpurUniversity, Nagpur.

.....Respondents.Ms. Neerja Chaubey, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondent no.1.

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6. Writ Petition No. 1156 of 2013 .

Meena Dattatray Kohok,A/o 47 years, Occupation: Lecturer,R/o: B6 Sita Sankul IIOpposite Aakar Nagar, Katol Road, Nagpur.


1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg,New Delhi – 110 021, through its Head.

2. The Coordinator,UGCNET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.

.....RespondentsMs. Neerja Chaubey, Advocate for petitioner.Mr. S.K.Mishra, ASGI for respondent no.1Mr. P.B.Patil, Advocate for respondent no.2


1. Jitendra Waman Jambhule,Aged about 28 years,Resident of Fattepura Ward No.3,Panchsheel Square, Near Veluren Budhavihar, Chandrapur 442 402.

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2. Vinod Wasudeo Dongarwar,Aged about 28 years,Resident of Belanwadi,Post: Nandgaon, Tahsil SindewahiDistrict: Chandrapur 441 223.

3. Kishor Nanaji MahajanAged about 27 years,Resident of at Post Parda, TahsilP.O. Samudrapur, District: Wardha 442 305.

4. Nihar Suresh Dahake,Aged about 31 years,resident of Plot No. 12, Rajendra Nagar,KDK College Road, Nandanwan, Nagpur 440 009.

5. Manohar Bansilal Patil,Aged about 36 years,Resident of C/o Shri Vitthalrao Satpute,Behind Mahadeo Temple, Killa Ward,Ballarpur 442 701.

6. Sachin Tulshiram Badwaik,Aged about 33 years,Resident of Plot No. 8,Kashinagar, Rameshwari Road,Post Bhagwan Nagar, Nagpur 440 027.

....Petitioners..versus.

1. University Grants Commission,Through its Chairman,Bahadur Shah Zafar Marg,New Delhi 110 002.

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2. University Grants Commission,Through the Head, NET Bureau,South Campus of Delhi University,Benito Juarez Marg, New Delhi 110 021.

...Respondents.Mr. A.A.Naik, Advocate for the petitioners.Mr. S.K.Mishra, ASGI for respondents.


1. Sunil Mahadeo Gabhane,Aged about 26 years,Resident of at Post Sonapur,Post Govindpur, Tahsil Nagbhid,District: Chandrapur 441 221.

2. Nagsen Jaipal Shambharkar,Aged about 27 years,Resident of Gadgaon, Post: Pimpalneri,Tahsil Chimur, District: Chandrapur.

3. Tulsidas Hariman Zade,Aged about 38 years,Resident of at Post Nimgaon,Tahsil Saoli, District: Chandrapur.

4. Chandrashekhar Namdeo Gaurkar,Aged about 31 years,Resident of Tadoba Road, Urjanagar,Kondhi Ward No.5, ChandrapurTahsil and District: Chandrapur.

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5. Avinash Diwakar Bhurase,Aged about 25 years,Resident of At post Sonapur,Tahsil Saoli, District: Chandrapur 441 225.

6. Sachin Bhaurao Bodhane,Aged about 29 years,Resident of C/o: Prakash Aswale, Killaward,

Kunbi Society, Bhadravai, District: Chandrapur.....Petitioners.

.versus.

1. University Grants Commission,Through its Chairman,Bahadur Shah Zafar Marg,New Delhi – 110 002.

2. University Grants Commission,through the Head, NET Bureau,South Campus of Delhi University,Benito Juarez Marg, New Delhi – 110 021.

....Respondents.Mr. A.A.Naik, Advocate for petitioners.Mr. S.K.Mishra, ASGI for respondents.


1. Naval Daulatrao Patil,Age – 30 years. Occu Student,R/o Jutapani, Post: Bijudhawadi,Tq. Dharni, Dist: Amravati.

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2. Nikhil Govardhan Joshi,Age – 30 years., Occu: Education,R/o: Indraprastha Colony,Shegaon Road, Amravati.

3. Yogendra Balkrushna Barabde,Age 33 yrs., Occu Service,R/o – Kumbhargaon,Tq. Anjangaon Surji, Dist. Amravati.

4. Darshana Ratnakar ChaudharyAge – 36 yrs., Occ Service,R/o – V.M.V. Road Near Vitthal Mandir,Amravati, Tq. and Dist. Amravati.

5. Manjusha Sudhir Thakhare,Age 34 years, Occ ServiceR/o Prabhat Colony, Shilangaon Road,Amravati,Tq. And Dist. Amravati.

6. Amit Chandrakant Ronghe,Age – 28 yrs., Occ Service,R/o C/o N.K. Puri, Ashirwad Colony,Shegaon Road, Amravati, Tq. And Dist. Amravati.

7. Suresh Devidas Gawli,Age – 31 yrs., Occ Service,R/o Datta Nagar, Kandli, Paratwada,Dist. Amravati.

8. Pratibha Haridas Kakade,Age – 25 yrs., Occ serviceSarmaspura, Achalpur, Tq. Achalpur,Dist. Amravati.

...Petitioners.

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.versus.

1. University Grants Commission,Through its Secretary, Bahadur ShahJafar Marg, New – Delhi.

2. The Cocoordinator UGCNational Eligibility Test for Junior Fellowship and Eligibility for LectureshipJune 2012.C/o – Office At University of GrantsCommission, New Delhi.

3. National Educational Testing (NET) Bureauthrough it’s Head, South Campus, University ofDelhi, Juarez Marg, New Delhi.

....Respondents.Mr. P.S.Patil, Advocate for the petitioners.Mr.S.K.Mishra, ASGI for respondent no.1.10. Writ Petition No. 1783 of 2013

1. Kavita Shankarrao Vaidya.2. Hargovind Chikhalu Tembhare.

(Both the Petitioners are permanent residents 45, Civil Lines, Nagpur.) ........Petitioners.

.versus.

University Grants Commission, Through its Chairman, Bahadurshaha Zafar Marg, New Delhi 440 002.

......Respondent.

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Mr. P.P.Thakare, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondent.


Nilofar D/o Zafar Khan,aged about 38 years, Occupation: Advocate,R/o: 204, Samaj Bhushan Society,Ayyappa Nagar, Nagpur.

..... Petitioner. Versus.

1. University Grants Commission,National Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg,New Delhi – 110 021Through its Head.

2. The Coordinator,UGC NET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.

...Respondents.Mr. Z.A.Haq, Advocates for the petitioner.Mr. S.K.Mishra, ASGI for respondent no.1Mr. P.B.Patil, Advocate for respondent no.2.

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Sayalee Shekhar Surjuse, Aged about 27 years, R/o: 102, Gokul Apartments, 80, Nawab Lane, Gokulpeth Nagpur – 440 010.

.... Petitioner..versus.

1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg, New Delhi 110 021.Through its Head.

2. The CoordinatorUGCNET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.

3. RTM Nagpur University, NagpurThrough its Registrar, NagpurDist. Nagpur.

...Respondents.Ms T.H.Udeshi, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondent no.1Mr. P.V.Thakare, Advocate for respondent no.2Mr. P.B.Patil, Advocate for respondent no.3.

13. Writ Petition No. 5135 of 2012.

1. Ganesh Ramdas Gadekar,R/o: Plot No. 61, Dr. Punjabrao Deshmukh

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Colony, Arvi Road, Wardha.

2. Sanjay Kashinath Sontakke,R/o: Plot No. 16, Mahalaxmi Nagar02Manewada Road, Nagpur 440024.

3. Baliram Manikrao Bhange,R/o: Chichghare Layout, Byepass Road,Umrer, Dist: Nagpur 441203.

4. Sachin Trimbakrao Hunge,R/o: Mangalwari Peth, Station Road,Umrer, Distt. Nagpur – 441 203.

5. Manoj Shankarrao MadaviGurudeo Nagar, Postal Colony,Yavatmal 445002.

6. Yogita w/o Ganesh Gujar,R/o: Gandhi Chowk, Behind Lokmat Office,Yavatmal 445 001.

7. Vasanta Sitaram Wanjari Dekate Chowk Budhwari Peth, Umrer,Dist. Nagpur – 441 203.

8. Sneha Ashok Gajghate,Giradkar Layout, Byepass Road, Umrer,Dist. Nagpur – 441203.

9. Kailash Vitthalrao Bisandre,Aniket College of Social Work Ram Nagar,Wardha.

10. Baburao Namdeorao Khelkar C/o G.S.Kamble, Nagari Bank Colony,

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Wardha.

11. Rupesh Rambhau Kuchewar, Sahakar Nagar, Near Sai Nagar, Ward No. 19, Wardha.

12. Nishant Ashok Chikate, C/o: Dinesh R. Dongre, At Vikram Shila Nagar, Ward No.1, Sindhi (M), Wardha.

13. Mrs. Sujata Suryabhan Gajbhiye, C/o Yuvraj Ramteke Satkar Nagar, Nagpur Road, Bhandara.

....Petitioners..versus.

1. Union of India,Ministry of Human Resource Development,Through its Secretary, Library Avenue Pusa,New Delhi 110 012.

2. University Grants Commissionthrough its ChairmanBahadurshaha Zafar Marg,New Delhi 440002.

....Respondents.Mr. P.P.Thakare, Advocate for the petitioners.Mr. S.K.Mishra, ASGI for respondents 1 and 2.


Anjali Omprakash Kothari

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aged about 26 years, R/o B5 Uday Coop. Housing Society, Nelson Square Chaoni, Nagpur 440013.


University Grants Commission National Educational Testing Bureau University of Delhi, South Campus, Benito Jaurez Marg, New Delhi 110021. Through its Head.

...Respondent.Ms T.H.Udeshi, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondent.


1. Krishna Fulchand Meshram

2. Vinodkumar Walmik Gedam

3. Urvil Vinubhai Patel

4. Rajesh Zanaklal Gautam

5. Lina Chhagan Kumbhalwar

6. Rajendrakumar Lalji Nikose

7. Shushma Radheshyam Nagpure

8. Hirwanta Bhayyalal Garade

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9. Rakesh Kisanlal Bambhare

10.Nilkantha Ramchandra Bhendarkar

11.Premlal Dhuranlal Basene(Petitioner nos. 1 to 11 are permanent residents of Gondia, Dist. Gondia. Tathya Tope Nagar Plot No. 11).

12. Nirajsingh Fulchand Yadav

13. Mangesh Bhakruji Meshram(Petitioner nos. 12 and 13 are permanent residents of Nagpur, Dist. Nagpur, Civil Line Nagpur Plot No.1.)

....Petitioners. .versus.

1. Union of India,Ministry of Human ResourceDevelopment, Through its Secretary,Library Avenue Pusa, New Delhi 110 012.

2. University Grants Commission,through its Chairman,Bahadurshaha Zafar Marg, New Delhi 440002.

....Respondents.Mr. P.P.Thakare, Advocate for the petitioners.Mr. S.K.Mishra, ASGI for respondents 1 and 2.


1. Jyotsna Pandurangi Timande.

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2. Kalyani Hemant Manmode.

3. Nilima Bhaurao Rindhe.

4. Taxshila B. Kamble.

(Petitioner no. 1 to 4 are residents of C/o Nilesh Mahakalkar, 49, New Jagruti Colony, Katol Road, Nagpur).

5. Vikrant Anntram Dhamgaye.

6. Madhukar Sahasram Gomase.

7. Sachin Deodas Jambhulkar

8. Bhagwat Yuvraj Shende(Petitioner nos. 5 to 8 are permanent residents of C/o at Dahegaon, P.O.Mahagaon (Devi) Tah. Mohadi, Dist. Bhandara).

.....Petitioners. .versus.

1. Union of India,Ministry of Human ResourceDevelopment, Through its Secretary,Library Avenue Pusa, New Delhi 110 012.

2. University Grants Commission,through its Chairman,Bahadurshaha Zafar Marg, New Delhi 440002. ....Respondents.

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Mr. P.P.Thakare, Advocate for the petitioners.Mr. S.K.Mishra, ASGI for respondents.


Mangala Durgadas Bansod aged about 40 years, R/o Swayam Apartments, Rajwada Road, At post Taq Aheri. Dist. Gadchiroli 442705.

.....Petitioner..versus.

1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg, New Delhi 110 021Through its Head.

2. The Coordinator,UGCNET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.

3. RTM Nagpur University, NagpurThrough its Registrar,Nagpur, Dist. Nagpur.

....Respondents. Ms. T.H.Udeshi, Advocate for petitioner.Mr. S.K.Mishra, Advocate for respondent no.1.Mr. P.B.Patil, Advocate for respondent nos. 2 and 3.

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CORAM: R.C.CHAVAN & PRASANNA B. VARALE,JJ DATE OF RESERVING JUDGMENT : 16.04.2013

DATE OF PRONOUNCEMENT : 29.04.2013 JUDGMENT (PER R.C.CHAVAN, J)

Rule. Rule made returnable forthwith. By consent of the

parties, these petitions were taken up for final disposal at admission

stage.

2. We have heard the learned counsel for the respective

parties.

3. These petitions, by aspiring University Teachers, question

the result of National Eligibility Test conducted by the respondent

University Grants Commission (for short “UGC”) in June 2012 by

prescribing qualifying criteria after the test was conducted. They seek

appropriate writ to declare that change of qualifying criteria reflected in

the Notification dated 19th September, 2012 is arbitrary and illegal and

also seek striking down the authority of the respondent UGC to decide

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such criteria after the examination and before the declaration of result.

4. The facts, which are material for deciding these petitions are as under:

In March, 2012, the UGC issued a Notification announcing

holding of National Eligibility Test on 24th June, 2012. As per the

Notification issued in March, 2012, the minimum marks, which the

candidates were supposed to obtain in papers I, II and III, were to be as

under:

CATEGORY Minimum Marks (%) to be obtained. PAPER I PAPER II PAPER III

GENERAL 40 (40% 40 (40%) 75 (50 %)

OBC (Noncreamy layer)

35 (35%) 35 (35%) 67.5 (45%)rounded off to 68

PH/VH/SC/ST 35 (35%) 35 (35%) 60 (40%)

The petitioners applied for appearing for the test for eligibility for

lectureship. They gave the test conducted on 24th June, 2012.

5. The petitioners claim that they scored more than the

minimum marks prescribed above. However, when the results of the

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examination were announced by the UGC, the petitioners found their

names missing from the list of successful candidates. After the results

were declared on 18th September, 2012, the UGC released the Press

Note stating that in addition to the minimum marks which the candidates

were supposed to obtain individually in three papers, the candidates

were required to obtain aggregate marks of 65% for General Category,

60% for OBC (Noncreamy layer) and 55% for SC/ST/persons with

disabilities. Thereafter, the UGC seems to have published

supplementary results on 12.11.2012, in which too, the petitioners’

names did not figure. Thereafter the dates for next examinations were

announced by the UGC.

6. The petitioners question the action of the UGC on the ground

that it was not open to the UGC to change the qualifying criteria after

the examination was over. The petitioners also state that the

candidates, who had secured less than the prescribed aggregate marks,

were also declared to have passed in the supplementary results, though

similar benefit was not extended to the petitioners. This was possibly

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done by the UGC after considering the recommendations of a Four

Member Committee that in addition to the candidates who secured

prescribed aggregate marks, the candidates, who figured among top

7% of all the candidates who appeared in the NET in the particular

subject, should also be considered eligible and having qualified. It

seems that the candidates who had secured less than the prescribed

aggregate marks but were in the 7% bracket were declared as qualified.

7. According to the UGC, which has filed an affidavit in Writ

Petition No. 4996/2012, which the learned counsel wants to be read in

all other petitions, the UGC in its Notification for June, 2012

Examination, stipulated the minimum marks which the candidates were

required to obtain in 3 papers separately. The Notification also

stipulated that only those candidates, who obtained such minimum

marks, were to be considered for final preparation of the result and the

Notification unmistakably stated that “However, the final qualifying

criteria for Junior Research Fellowship (JRF) and eligibility for

lectureship shall be decided by the UGC before declaration of the result.

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The UGC claimed to have carried out this activity in view of the

stipulation in the Notification. It was submitted that the minimum marks

which the candidates were required to obtain in each paper had to be

distinguished from the qualifying criteria which the UGC was to

separately decide. It was submitted that the petitioners, having clearly

understood the terms and conditions of the examination and having

appeared at the examination without protest, could not question the

declaration of the result as unfair. The UGC explained that it constitutes

a Moderation Committee of the senior academicians for finalizing the

qualifying criteria and the final cutoff is fixed generally before

declaration of the result. It was pointed out that the Committee of senior

academicians met for moderating the result of June, 2012 examination

and recommended that the candidates would be required to obtain

minimum qualifying aggregate percentage of 65%, 60% and 55% in

respect of the three categories of the candidates. The UGC candidly

states that it received some representations and then set up a Four

Member Expert Committee to examine the representations. The

Committee found that uniform high cutoff marks across various

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disciplines was not proper since it noted that the proportion of students

who passed varied hugely from 1% to 30% for various subjects. The

Committee noted that uniform cutoff marks put the candidates in some

subjects to a disadvantage and, therefore, the Committee suggested the

correction whereby candidates, who figured among the top 7% of the

candidates who appeared for the NET in each discipline, would also

qualify subject to their having secured minimum required score in each

of the three papers. Accordingly, the result was moderated and 15178

additional candidates were declared to have qualified on 12.11.2012.

The UGC refuted the allegations about arbitrariness or discrimination.

The UGC contended that in such matters the Courts should leave the

decision to experts who are more familiar with the academic issues and

problems they face rather than the courts generally can be, and,

therefore, sought dismissal of the petitions. The learned counsel for the

UGC submitted that the prayers sought could not be entertained,

particularly in the light of the fact that the petitioners sought to challenge

the decision to qualify 7% of top rankers in each subject without joining

as respondents those who were benefited by this decision.

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8. As rightly pointed out by the learned counsel for the

petitioners, it is not that the petitioners seek that those candidates

should be declared as not qualified. The petitioners seek that similar

benefits could be extended to them by enlarging this scope of

relaxation. Therefore, since nothing to the prejudice of the candidates

who are declared to have qualified subsequently by result dated

12.11.2012 is sought, this objection to the tenability of the petitions on

the ground that those candidates have not been joined, has to be

rejected.

9. This takes us to the crucial question, whether the respondent

UGC was justified in prescribing requirement to obtain 65%, 60% and

55% aggregate marks as qualifying criterion after candidates had

appeared for the examination. The learned counsel for the petitioners

submit that similar petitions had been filed before the High Court of

Kerla and by Judgment dated 17.12.2012 the learned Single Judge of

Kerla High Curt has allowed the petitions and quashed the proceedings

fixing categorywise qualifying criteria for Lectureship eligibility. The

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learned Single Judge declared that all the petitioners, who had obtained

the minimum prescribed marks separately in three papers, had cleared

the NET and directed appropriate follow up action. The learned counsel

for UGC submitted that this Judgment has been subjected to intra court

appeal in Kerla High Court and the result thereof is awaited. He further

submitted that since it is a Judgment by a Single Judge of another High

Court, this Division Bench need not feel itself bound by the said

Judgment. He submitted that conclusions drawn by the Kerla High

Court, in the view of UGC, are not correct and, therefore, this Court may

not toe that line.

10. The learned counsel for the petitioners submitted, mainly

relying on the causation in the Judgment of the Kerla High Court, that

such change of the criteria after the process begins is not permissible.

11. The learned counsel for the UGC, on the other hand, relied

on the number of Judgments to support its contention that once the

candidates take part in the selection process without demur, they would

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not be entitled to challenge the process, if the result of the process is

adverse to them. He submitted that the Notification for examination held

in June, 2012 clearly stipulated that in addition to the minimum marks

which the candidates were supposed to obtain individually in each of

the three papers, the candidates were to be subjected to some

qualifying criteria before declaration of the result. He pointed out that

the Notification, after prescribing minimum marks in each of the three

papers stipulates that, “only such candidates, who obtain the minimum

required marks in each paper, separately, as mentioned above, would

be considered for the final preparation of result. However, the final

qualifying criteria for Junior Research Fellowship and Eligibility for

Lectureship shall be decided by the UGC before declaration of the

result”.

12. Therefore, the learned counsel for the petitioners submitted

that the candidates knew that their obtaining minimum required marks in

each of the three papers separately only enabled them to be considered

for final preparation of the result and that the final qualifying criteria were

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to be determined by the UGC before the declaration of the result.

Therefore, according to the learned counsel, the candidates had

sufficient notice that their obtaining minimum passing marks in each of

the three papers individually did not automatically make them eligible

for Lectureship. The learned counsel for UGC relied upon the Judgment

of the Supreme Court in Om Prakash Shukla vs. Akhilesh Kumar

Shukla and others reported in AIR 1986 Supreme Court, 1043. In that

case the Court was considering the question whether a competitive

examination for recruitment held according to 1950 Rules was

unauthorized as it should have been held in accordance with 1947

Rules as amended by 1969 Rules. The examination itself had been

held in September, 1981. In para no.23 of the Judgment, the Supreme

Court observed that petitioner could not be granted any relief because

he appeared for the examination without any protest and had filed

petition only after he had realized that the would not succeed in the

examination.

13. In Madan Lal and others .vs. State of Jammu and Kashmir

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and others, reported in AIR 1995 Supreme Court, 1088(1), the Supreme

Court was considering the challenge to the process of recruitment of

Munsiffs in Jammu and Kashmir. The main contention of the petitioners

was that vivevoce test was so manipulated by increasing their marks in

vivevoce that only the preferred candidates were permitted to get in the

select list. Following the Judgment in Om Prakash Shukla, the Court

reiterated that the result of an interview test on merits cannot be

successfully challenged by a candidate, who takes a chance to get

selected at the said interview and who ultimately finds himself to be

unsuccessful.

14. A Division Bench of this Court in Sonali Ramkrishna Bayani

vs. State of Maharashtra and others, reported in 2003(Supp.2) Bombay

C.R., 607 took a similar view following the Judgment in Madan Lal. In

Chandra Prakash Tiwari and others vs. Shakuntala Shukla and others,

reported in (2002) 6 Supreme Court Cases, 127 relying on the

Judgments in Om Prakash Shukla and Madan Lal, the Supreme Court

concluded that the law was well settled that in the event the candidate

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appears at the interview and participates therein only because the result

of the interview is not palatable to him, he can not turn around and

subsequently contend that the process of interview was unfair or there

was some lacuna in the process. Similar view has been taken very

recently by a Division Bench of this Court in Swati R. Khinvasara vs.

State of Maharashtra and others, reported in 2012(1) Mh. L.J., 482.

The learned counsel for the UGC, therefore, submitted that the

petitioners, having appeared at the test knowing full well that qualifying

criteria were to be fixed before the declaration of the result, could not

question the criteria subsequently fixed.

15. The learned counsel for the petitioners, on the other hand,

submitted that such change of the criteria after the process has

commenced, has not been approved by the Supreme Court. In our

view, the question as to whether the criteria could be changed after the

process began may not be decisive of the matter. The question here is

about the purpose for which the examination is conducted by the UGC.

It is nobody’s case that purpose of conducting the examination is to

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select the candidates for appointment. The UGC had prescribed

National Eligibility Test in order to have uniformity in the standards of

teaching across the country. The question of validity of the UGC

Regulations about qualifications required of a person to be appointed to

the teaching staff of Universities and Institutions, notified on 19.9.1991,

had been raised by a petitioner before the Delhi High Court. The Delhi

High Court ruled that Regulation was valid and mandatory and Delhi

University was obliged to comply there with. The Delhi University filed

an appeal which came to be decided by the Judgment of the Supreme

Court in University of Delhi vs. Raj Singh and others reported in 1994

Supp. (3) Supreme Court Cases, 516. The Supreme Court noted that

the Regulations which were sought to be challenged had been made in

exercise of power conferred by Section 26 (1)(e) r/w Section 14 of the

UGC Act, 1956. The genesis of the Regulations were then considered

by the Supreme Court in para nos.8 and 9 of the Judgment in the

following words.

“8............................... It was recognized that the

standards of performance varied from University to

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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 citizen aspiring to be a

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

in terms of a national yardstick. ................. The report,

therefore, recommended “that the UGC 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.”

“9: .......................... In order to ensure the quality of

new entrants to the teaching profession, the Mehrotra

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 TeachersII. 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

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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 fiftyfive per cent marks

or its equivalent grade and good academic record.

The minimum qualifications mentioned above should not

be relaxed even for candidates possessing M.Phil, Ph.

D. qualification at the time of recruitment.”

16. The Court then noted certain decisions about legislative

power of the State on the subject. The court considered the arguments

advanced and after analysing the Regulation observed as under in para

no.21.

“21........................... The said Regulations do not

impinge upon the power of the University to select its

teachers. The University may still select its lecturers by

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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.”

17. It may, thus, be seen that the object of the prescribing

National Eligibility Test was to have uniform standard for lecturers to be

appointed across the country and to remove disparity in evaluation while

awarding degrees by various Universities. Thus, what the UGC aimed

at achieving by conducting NET, is to ensure that the candidates, who

apply for lectureship, possess certain minimum qualifications to be

assessed on the basis of their performance at the NET. The question,

therefore, is after having prescribed minimum passing marks for each

subject, what object was the UGC seeking to achieve by prescribing a

qualifying aggregate after the examination was over and before the

results were out. To say that the candidates were aware that UGC could

do so and, therefore, could not challenge what the UGC had done,

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would amount overlooking the very purpose for which National Eligibility

Test was prescribed. In our view, since the object was to prescribe

minimum qualifying standards for the purpose of appointment as

lecturers, nothing prevented the UGC from fixing in the initial Notification

itself the aggregate qualifying marks at the levels fixed by them

subsequently. This would have enabled the candidates to strive and

achieve those percentages. The authority to moderate the result, which

the UGC claims to have exercised, does not seem to have served any

purpose, if the UGC believed that the candidates should have 65%,

60% or 55% of aggregate marks. Fixing such a percentate after viewing

the result could be permitted for shortlisting for say appointments or

admissions. The learned counsel for the UGC relied upon the Judgment

of Supreme Court in Union of India vs. T.Sundararaman and others

reported in AIR 1997 Supreme Court, 2418 on the question of

permissibility of short listing. There could be no doubt that the recruiting

authority could undertake short listing. The UGC is not a recruiting

authority. It was just expected to prescribe uniform standards for the

persons who qualify for appointment as lecturers. Therefore, it is not

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clear as to why the UGC could not prescribe the qualification as to

aggregate marks before the candidates were asked to take the

examination.

18. In Hemani Malhotra vs. High Court of Delhi, reported in AIR

2008 Supreme Court, 2103(1),which was cited at bar, the question was

about prescribing cut off marks for vivavoce after the process of

selection had began. The Court ruled that such prescribing of cut off

marks was not permissible at all after the written test was conducted.

19. In Barot Vijaykumar Balakrishna and others v. Modh

Vinaykumar Dasrathlal and others, reported in AIR 2011 Supreme

Court, 2829, the Supreme Court was considering a case where cut off

marks for vivavoce were not stipulated in the advertisement. After the

written test was held and preparation for holding vivavoce were going

on, it was decided that candidates were required to have minimum

qualifying marks in viva voce as well. The Commission then displayed

this requirement on Notice Board. The candidates were made aware of

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this before going on to the oral test by being made sign of declaration.

In this context, the court held after considering the Judgment in Himani

Malhotra that it was permissible to fix cut off marks for vivavoce and to

notify the candidates called for interview. Though the learned counsel

for the UGC submitted that there was some discord in the two decisions,

we do not see any conflict. In Hemani Malhotra’s case cut off marks in

vivavoce were fixed without informing the candidates before they

appeared for vivavoce, whereas in Barot Vijaykumar Balakrishna the

candidates were made aware of the minimum qualifying marks at

vivevoce before they actually appeared for vivevoce. Both the

Judgments would, thus, support the view that the candidate is required

to be told before he appears for the test as to what he is expected to

score in order to qualify. This has not been done by the UGC in the NET

Examination held in June,2012.

20. After viewing the results, prescribing such an aggregate

percentage was obviously injurious to the candidates who were being

examined only to find out whether they possessed the minimum

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standards for being appointed as lecturers. Since the learned counsel

for the UGC submits that an expert body of the UGC was to fix

qualifying criteria before the declaration of the result, the UGC ought to

have clarified as to what was the purpose which it sought to achieve by

such exercise after the examination and before the declaration of results

if under the act all that it was expected to do is prescribing minimum

qualifying standards. There is absolutely no merit in the arguments that

simply because the UGC had so stipulated, it could do so after the

examination and before declaration of the result and it should be

allowed to get away with this action, which does not stand to reason.

Exercise of moderation of result can be understood, if it is aimed at

mollifying harsh result. In fact, the affidavit filed on behalf of the UGC

shows that in the past when no aggregate qualifying percentage was

fixed, the minimum marks required for passing individual papers had

invariably been relaxed. Even in the examination in June,2012, after

receiving representations and on finding that in some subjects the

candidates did not get 65%, 60% or 55% marks, the UGC permitted

such candidates to qualify if they fell in the top 7% bracket in the

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discipline concerned, provided that they had secured minimum subject

wise marks in each of the three papers. Thus, there was nothing

sacrosanct about criteria of the 65% qualifying marks.

21. The learned counsel for the UGC submitted that this is not a

question which could be gone into by the courts and it is a settled

principle of law that in academic matters, courts should not interfere

with the decision of the experts. While there can be no doubt about the

proposition that ordinarily the court should not exercise the power of

judicial review for substituting its own Judgment for that of academicians

in educational affairs. As rightly pointed out by the learned counsel for

the petitioners, this very question had been raised before the Supreme

Court in Dr. J.P.Kulshrestha and others vs. Chancellor, Allahabad

University and others reported in (1980) 3 Supreme Court Cases, 418

which had been referred to by the learned Single Judge by the Kerla

High Court. The Supreme Court, in the inimitable words of the Hon’ble

Justice Krishna Iyer, spoke thus:

“1...................While legal shibboleths like ”handoff

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universities” and meticulous forensic invigilation of

educational organs may 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 selections 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

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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 decisions 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 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

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

Govinda Rao case 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 broadly conform to

the rule of caution sounded in Govinda Rao. But to

respect an authority is not to worship it

unquestioningly since the bhakti cult is inept in the

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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.”

22. Here the question is not of substituting our own wisdom for

that of the academicians. The question is what the academicians

sought to achieve by prescribing aggregate qualifying marks after the

examination was over and before the results were out, when no such

exercise had been undertaken by the UGC for the past as can be seen

from the affidavit filed on behalf of the UGC. The question is whether

the power sought from the 1991 Regulations were exercised for

achieving the object of framing those regulations.

23. At the cost of repetition, it has to be stated that the authority

to moderate the result, cannot be used to prescribe higher qualifying

criteria. There was no question of UGC undertaking any short listing

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and therefore, so long as the candidates secured the minimum

qualifying marks in each of the three papers, it could have declared

them to have qualified. In any case, as can be seen from the relaxation

of requirements of 65%, 60% and 55% of aggregate marks in respect of

the 7% of top notchers in their individual subjects, there is nothing

sacrosanct about percentage of the aggregate marks fixed.

24. In view of this, agreeing with the view taken by the learned

Single Judge of the Kerla High Court, we hold that the Notification laying

down requirement of 65%, 60% and 55% percentage of aggregate

marks at June, 2012 UGC NET Examination is illegal and is

consequently struck down. The UGC shall proceed to declare the result

of the petitioners on the basis of their scores in individual papers with

reference to the minimum marks prescribed for passing those papers.

The petitions are, therefore, allowed in the above terms.

The request of learned counsel for the respondents to stay

the order to enable the University Grant Commission to approach the

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Supreme Court is rejected. However, eight weeks’ time is granted to

declare the results.

JUDGE JUDGE

patle

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