University Grants Commission & Others v. Roopakala Prasad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935 WA.No.44 of 2013 IN WP(C).22187/2012 ---------------------------------------------JUDGMENT IN WP(C) 22187/2012 ......... ## APPELLANTS/RESPONDENTS: 1. THE UNIVERSITY GRANTS COMMISSION REP.BY SECRETARY, BAHADURSHA ZAFER MARG, NEW DELHI-2 2. THE CO-ORDINATOR, UGC NATIONAL ELIGIBILITY TEST FOR JUNIOR FELLOWSHIP AND ELIGIBILITY FOR LECTURESHIP JUNE 2012 O/O.THE UNIVERSITY GRANTS COMMISSION, BAHADURSHA ZAFER MARG, NEW DELHI. 3. NATIONAL EDUCATIONAL TESTING (NET) BUREAU, UNIVERSITY GRANTS COMMISSION, BAHADURSHA ZAFER MARG, NEW DELHI. BY ADV. SRI.S.KRISHNAMOORTHY, CGC ## RESPONDENT/PETITIONER: ROOPAKALA PRASAD, D/O.RAJENDRAPRASAD, AGED 38 YEARS, RESIDING AT VALLYAMELET HOUSE, PALA P.O., THEKKEKARA, KOTTAYAM DIST 686 575. BY ADVS. SRI.PRATHAP PILLAI SRI.BENOJ C AUGUSTIN SRI.I.J.AUGUSTINE SRI.SEBIN THOMAS SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.S.MANU SMT.K.DEEPA (PAYYANUR) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-10-2013, ALONG WITH W.A.NO.74/2013 AND CONNECTED CASES, THE COURT ON 24-10-2013 DELIVERED THE FOLLOWING: Manjula Chellur, C.J. & K.Vinod Chandran, J. ------------------------------------------------------------------- W.A.Nos.44, 74, 79, 117, 142, 143, 145 162, 163, 164, 170, 171 and 173 of 2013 ------------------------------------------------------------------Dated this the 24[th] day of October, 2013 ## **COMMON JUDGMENT** Manjula Chellur, C.J. These appeals are filed by the respondents in the writ petitions. The leading petition was W.P.(C)No. 26468/2012. The respondents/writ petitioners approached the learned single Judge challenging Exhibit P3, wherein change of criteria so far as the National Eligibility Test (NET) was concerned came to be issued by the appellants. All the writ petitioners appeared for the NET held on 24.06.2012, for which they had applied on the basis of Exhibits P1 and P2. It is not in dispute that the criteria for a pass is indicated at Exhibit P1 and that the test comprises of questions of objective type. After conducting the test, the answer key came to be published, thereby results were made known to the candidates who appeared for the NET. WA 44/2013 & con. cases 2 Challenging that there was no justification for the appellants/respondents to change the criteria for a pass by enhancing the total percentage required and it is arbitrary; the writ petitioners approached the court in several writ petitions. Learned single Judge by common judgment dated 17.12.2012 allowed the writ petitions rejecting the contentions raised by the University Grants Commission ('UGC' for short) opining that enhancing the aggregate marks as 65%, 60% and 55% for the three categories of candidates just before the announcement of results was not justified. Further, a direction was given to issue certificates to the candidates within one month. Aggrieved by the judgment of the learned single Judge, these writ appeals came to be filed by the UGC. 2. The view expressed by the learned single Judge of this Court was considered favourably by the Division Bench of Bombay High Court, wherein, the court ruled that there 3 WA 44/2013 & con. cases is lack of competency for the UGC to fix the aggregate marks as the final qualifying criteria, subsequent to the candidates obtaining minimum marks which was prescribed as per the notification dated 06.12.2012. The judgment was challenged before the Honourable Supreme Court in Civil Appeal No.8355/2013 and connected cases. By judgment dated 19.09.2013, the Apex Court set aside the judgment of the Bombay High Court upholding the action of UGC, thereby the appeals were allowed. The Apex Court pointing out the power of UGC to set the standard of qualifying criteria opined that the UGC, as an expert body, has been entrusted with the general duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. UGC has also got the power to define the qualification that should ordinarily be required for any person to be appointed as teaching staff of the University and to regulate the WA 44/2013 & con. cases 4 maintenance of standards and co-ordination of work and faculties in the Universities. 3. After referring to various earlier decisions of the Apex Court, i.e., **University of Delhi v. Raj Singh** (1994 Supp. (3) SCC 516), **University Grants Commission v. Sadhana Chaudhary and others** ((1996) 10 SCC 536) and **Annamalai University represented by Registrar v. Secretary to Government, Information and Tourism Department and others** ((2009) 4 SCC 590), opined that the UGC in its obligation as contemplated under the UGC Act has exercised its statutory powers. Ultimately, opining that the candidates were not misled in any manner by the words “clearing the NET” in the notification, their Lordships held that clearing the final results, not merely passing in Paper I, Paper II and Paper III, which is only the initial step, but not the final one. They also opined that the candidate should satisfy the final qualifying criteria laid 5 WA 44/2013 & con. cases down by the UGC, before declaration of results, to clear the NET examination. 4. By referring to the decisions reported in **University of Mysore v. C.D.Govinda Rao** (AIR 1965 SC 491), **Tariq Islam v. Aligarh Muslim University** ((2001) 8 SCC 546) and **Rajbir Singh Dalal v. Chaudhary Devi Lal University** ((2008) 9 SCC 284), their Lordships opined that unless there is clear violation of the statutory provisions, the Regulations or the notification issued, in academic matters, the courts should not interfere with such matters, since those issues fall within the domain of experts. 5. As in the present case, UGC entrusted the matter to an expert body to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University and for attaining that standards, it is open to the UGC to lay down any “qualifying criteria”, which has a rational nexus to the 6 WA 44/2013 & con. cases object to be achieved. Upholding the action of the UGC that it has only implemented the recommendations of the experts so far as qualifying criteria, their Lordships opined that it cannot be termed as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India and proceeded to allow the appeals. The applications for impleadment and intervention were also dismissed. In the light of the judgment of the Apex Court, upholding the action of UGC, the above writ appeals have to be allowed setting aside the judgment of the learned single Judge. 6. It is seen from the records that good number of writ petitions were filed before the learned single Judge and a common judgment was passed which is impugned before us in the above appeals. It is not in dispute that subsequent to the judgment of the learned single Judge, several other writ petitions were also filed, which were disposed of WA 44/2013 & con. cases 7 following the judgment impugned in the present appeals. We are aware of the fact that UGC has not filed appeals from all such subsequent judgments. It is also not in dispute that UGC has not filed appeals in all writ petitions allowed by the impugned common judgment. The present appeals are allowed on the basis of the judgment of the Apex Court pertaining to the very same issue, though it arises from a different State. The judgment of the Apex Court is a binding one by virtue of Article 141 of the Constitution of India in the light of the earlier judgment of the Apex Court reported in **M/s.Shenoy and Co. represented by its Partner, Bele Srinivasa Rao Street, Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others** ((1985) 2 SCC 512). In the said case, the High Court, by common judgment, allowed several writ petitions declaring the Act as unconstitutional and issued mandamus against the State. The State chose to file only one appeal 8 WA 44/2013 & con. cases before the Apex Court which came to be allowed by setting aside the judgment of the High Court by upholding the validity of the Act. In the said case, the Apex Court specifically negatived the contention raised that the judgment of the Apex Court applies only to the party before it on the ground that writ petitions were all filed challenging the Act and that no petitioner advanced any contention peculiar or individual to his petition, which was not common to others. 7. In the present appeals also the dispute pertains to the controversy between the parties and each petitioner had no personal or individual element in it. In other words, it is not personal or peculiar to each of the petitioners. In the said judgment, their Lordship held that “declaration of law is binding on every one and it is, therefore, futile to contend that mandamus would survive in favour of those parties against whom appeals were not filed”. Hence, the WA 44/2013 & con. cases 9 declaration made by the Apex Court in the judgment, which is followed by us in the present appeals would be applicable to all the parties concerned in the dispute, irrespective of the fact whether appellants have filed an appeal from the said judgment or not. 8. Incidentally, we are constrained to refer to the interlocutory applications (I.A.No.780/2013 in W.A.No. 117/2013, I.A.No.781/2013 in W.A.No.145/2013, I.A.No. 782/2013 in W.A.No.163/2013 and I.A.No.783/2013 in W.A. No.164/2013) filed by Adv.Sri.Kaleeswaram Raj, one of the counsel appearing for some of the respondents in the writ appeals. The matters were placed before Court on 11.10.2013, since the Division Bench which heard the above appeals was sitting on that day in order to hear the partheard matters. Change of Benches was notified much earlier prior to the vacation itself. The instant appeals were kept pending awaiting the judgment of the Honourable WA 44/2013 & con. cases 10 Supreme Court. On 11.10.2013, the learned counsel by referring to the decision reported in **Anil Rai v. State of Bihar** ((2001) 7 SCC 318) submitted that the Apex Court has permitted the parties to a litigation to file an application in the High Court with a prayer for earlier judgment, if a judgment reserved is not pronounced within three months from the date of reserving it. Learned counsel Sri.Kaleeswaram Raj made several submissions with respect to the delay caused in passing of the judgment in the above cases. 9. In the light of the above submissions, we will be failing in our duty if we do not address the specific issue of delay raised by the learned counsel in the verified petitions, wherein he has stated “since this Court did not pronounce the judgment, many of the parties were precluded from agitating their case before the Supreme Court either as appellants or as respondents in the SLP”. In order to clarify WA 44/2013 & con. cases 11 the position, we have to refer to the order-sheet briefly to put the facts in the proper perspective. Apparently, the judgment was reserved on 25.03.2013 by this Bench and summer vacation fell between 15.04.2013 and 18.05.2013. On 10.07.2013, Adv.Sri.Kaleeswaram Raj representing some of the respondents handed over a copy of the judgment of the Bombay High Court, which found favour with the impugned judgment in the present appeals. As the appeals were not specifically posted and the learned counsel who handed over the judgment alone was present in Court, the cases were listed on 15.07.2013 as 'to be spoken to'. On that day, Sri.S.Krishnamoorthy, learned standing counsel for UGC brought to the notice of this Court that UGC is filing a Special Leave Petition against the judgment of the Bombay High Court. The matter was again listed on 29.07.2013. On 29.07.2013, an order was passed in the following lines: WA 44/2013 & con. cases 12 “Learned counsel representing the UGC submits, the matter coming up before the Apex Court is listed to 7.8.2013, after hearing for a considerable time. List on 12.8.2013.” It is pertinent to mention that no objection whatsoever was raised to this order or on earlier dates objecting to the adjournment of the matter awaiting the proceedings before the Apex Court. When the appeals were listed again on 13.08.2013, same was adjourned to be listed after four weeks awaiting the orders of the Supreme Court. Even on this date, no objection whatsoever came to be raised from any quarter. Learned counsel appearing for either side did not oppose this and the matter was again listed on 11.09.2013. On that day, the matter was directed to be listed 'when moved again'. 10. As noticed above, on 19.09.2013 the Apex Court passed judgment in the connected appeals upholding the action of UGC, on which date, this Court was on Onam WA 44/2013 & con. cases 13 holidays. When the session commenced after the holidays, different Bench was sitting and none moved applications in any of the writ appeals. The Registry would have to take orders from the Chief Justice to constitute the Bench which heard the matter, if any one of the parties had moved an application in the above appeals. The Bench which heard the instant appeals had specifically posted other part-heard matters on 11.10.2013. Prior to 11.10.2013, learned counsel Sri.Kaleeswaram Raj made a reference orally regarding the judgment of the Apex Court dated 19.09.2013 and sought for listing the matters. The Bench informed him that the Bench which heard the appeal is sitting on 11.10.2013 and the matters will be listed on that day. However, present interlocutory applications were filed on 30.09.2013 which were placed along with the writ appeals. We are constrained to place on record the fact that till the present applications were moved, none had objected to the WA 44/2013 & con. cases 14 adjournment of the appeals as stated above and in fact, such adjournments were made in the presence of learned counsel appearing for all the parties, making it clear that the appeals are adjourned awaiting the judgment of the Apex Court on the very same issue. 11. In the interlocutory applications, it is indicated that respondents have a case that it is not the UGC but a committee that has altered the criteria as stated above, in exercise of the powers conferred on the committee and that same is to be urged before the Apex Court. With reference to this, we have to once again refer to the judgment of the Apex Court in **Shenoy and Co.** (Supra), wherein the Supreme Court observed as under: “In cases like this, where numerous petitions are disposed of by a common judgment and only one appeal is filed, the parties to the common judgment could very well have and should have intervened and could have requested the Court to hear them also. They WA 44/2013 & con. cases 15 cannot be heard to say that the decision was taken by this Court behind their back or profess ignorance of the fact that an appeal had been filed by the State against the common judgment.” Apparently, nothing precluded the parties from agitating their case before the Supreme Court. The appeals were adjourned to the knowledge of the counsel representing all the parties in the writ appeals specifically noticing that Supreme Court was seized of the very same issue and hearing was proceeding. It is also pertinent to mention that Honourable Supreme Court refers to several applications for impleadment and intervention before it which came to be dismissed after allowing the appeals. We have no material indicating whether any of the respondents herein has sought to intervene before the Apex Court on the advice of the counsel. We once again place on record that in the light of the very same issue being the subject matter of WA 44/2013 & con. cases 16 hearing before the Apex Court in SLPs, we adjourned the writ appeals awaiting the judgment of the Apex Court. We also place on record the opinion of the Apex Court in the case of **Central Coalfields and others v. H.M.P. and others** (1994 Supp. (1) SCC 323), which reads as under: “ **1** . The prayer for transferring the petitions pending in the High Courts to this Court is made in these transfer petitions on the ground that the points for determination there are the same as in Writ Petition No.787 of 1992 pending in this Court. In our opinion it is not necessary to transfer the pending matters from the different High Courts to this Court for this reason alone. Writ Petition No.787 of 1992 and the connected writ petitions involving the same points are pending in this Court and an inter order has been made in Writ Petition No.7687 of 1992 as under: “Stay granted earlier against recovery of the dues ion respect of the impugned case on minerals as well as its collection hereafter, shall continue until further orders. However, the concerned authorities shall keep accounts for which purpose the petitioner would fully cooperate with them of the amount of case which would be payable in case the writ petition is dismissed. The petitioners shall also furnish written undertaking in this Court to pay the total amount of cess due from them in case the petition is dismissed, within the period of one WA 44/2013 & con. cases 17 month from the date of the decision of the writ petition. The written undertaking be filed within four weeks from today. Subject to these conditions, the stay is to continue, and the State Governments shall not recover the impugned cess on minerals in the meantime. Similarly, the petitioners would not be entitled, in the meantime, to claim any refund of the amount of cess already paid by them”. **2** . It is open to the petitioners to apply in the High Courts in the writ petitions pending there, for an interim order in similar terms as has been made by Hon'ble Mr.Justice J.S.Verma and Hon'ble Mr.Justice G.N.Ray in W.P.(C)No.787 of 1992 on April 30, 1993. Apart from making the necessary interim orders or modification of the earlier interim order for this purpose, in these writ petitions pending in the High Court, it would be appropriate that further hearing of the writ petitions in the High Courts remains stayed until the decision of Writ Petition No. 787 of 1992 and the connected writ petitions by this Court. **3** . With these observations these transfer petitions are disposed of, for the aforesaid reasons.” We reiterate that none of the counsel, including Sri.Kaleeswaram Raj, opposed the adjournments. WA 44/2013 & con. cases 18 In the light of the above observations, placing reliance on the judgment of the Apex Court, the writ appeals are allowed. No costs. Manjula Chellur, Chief Justice K.Vinod Chandran, Judge tkv