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2025:UHC:2087-DB IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
HON’BLE SRI JUSTICE MANOJ KUMAR TIWARI AND HON’BLE SRI JUSTICE ASHISH NAITHANI
24TH MARCH, 2025
Writ Petition (S/B) No. 515 OF 2017
Dr. Umesh Kumar Singh
…Petitioner Versus The Chancellor, Kumaon University Nainital and others
…..Respondents
Counsel for the petitioner : Mr. Anil Kumar Joshi, learned counsel . Counsel for the respondent no. 4 : Mr. Vipul Sharma, learned counsel.
Counsel for the respondent no. 5 : Mr. K.P. Upadhyaya, Senior Counsel, assisted by Mr. Hemant Pant, learned counsel.
JUDGMENT : (per Sri Manoj Kumar Tiwari, J.)
Kumaon University issued advertisement dated 21.04.2010 inviting applications for faculty positions, including two posts of Assistant Professor (Sanskrit). Out of these two posts of Assistant Professor (Sanskrit), one was reserved for Scheduled Caste Category and the other was unreserved. Petitioner responded to the advertisement by making application for unreserved post of Assistant Professor 1
2025:UHC:2087-DB (Sanskrit). Since he was not selected while respondent no. 4 was selected and appointed against unreserved post; while, respondent no. 5 was selected and appointed against reserved post, therefore, petitioner has filed this writ petition seeking the following reliefs:-
“(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 19.05.2017 (Annexure No. 18) and 112 executive council minutes item no. 14 **orZeku esa foKkfir 'kSf{kd inksa dh vgZrk ;w0 th0 lh0 jsxqys'ku 2009 i= la0 1@2000 ¼ih,l&ihVh&Qkby&III½ fnukad 27 vxLr 2009 }kjk iznRr 'kfDr dk iz;ksx djrs gq, fd;s x;s gSa**A (The eligibility criterion of present advertisement is determined as per U.G.C. Regulation 2009 No. 1/2000 (PS-PT-File-III) dated 27/08/2009.)
(ii) Issue a writ, order or direction in the nature of Mandamus declared the ultra vires to first line of clause III of substitution of statute 11.02 by Kumaun University/Respondent nos. 2 & 3 by way of amendment no. 1280/GS/Shiksha/2009 dt. 20/07/2009 quoted as here “Holder of Ph.D. degree as on the date of Notification of these Regulation.” Which is unconstitutional and inconformity of U.G.C. regulation 2009-10 (Annexure-25 of the writ petition).
(iii) Issue a writ, order or direction in the nature of certiorari quashing the appointment order nos. ekU;rk@ 'kS0 O;0@1468 ¼11½ and ekU;rk@ 'kS0 O;0@1468 ¼10½ dated 30/11/2010 issued by respondent university to respondent nos. 4 & 5.
(iv) Issue a writ, order or direction in the nature of Mandamus directing the respondent nos. 2 & 3 to issue the appointment letter on the post of Assistant Professor Sanskrit as per condition of advertisement dated 21/04.2010 and as per its selection and result from the due date the respondent nos. 4 & 5 has been offered the appointment.”
Respondent no. 4 was appointed by the Competent Authority in Kumaon University, vide order dated 30.11.2010. Petitioner challenged the appointment of respondent no. 4 as Assistant Professor (Sanskrit) by filing Writ Petition (S/B) No. 238 of 2015, which was dismissed vide order dated 29.06.2015. Petitioner thereafter again filed Writ Petition (S/B) No. 210 of 2016, which was dismissed on 15.06.2016. 2
2025:UHC:2087-DB Order dated 15.06.2016 passed in Writ Petition (S/B) No. 210 of 2016 is extracted below for ready reference:-
“Prayers in the writ petition are as follows:
“A. pass an order / direction quashing the appointment of Dr. Lajja Bhatt as Assistant Professor Sanskrit in pursuance of evaluation dated 17-11-2010 (at serial no. 22) (Not having NET/SLET) (ANNEXURE NO. 05).
B. pass an order / direction that the Kumaun University act as per UGC (Minimum Qualification Required For The Appointment And Career Advancement Of Teachers In Universities and Institutions Affiliated To It) (3rd AMENDMENT), Regulation 2009 published on The Gazette of India dated 17th July 2009 (ANNEXURE NO. 03) and appoint the petitioner as Assistant Professor Sanskrit in pursuance of evaluation dated 17-11-2010 (at serial no. 01 and waiting list no. 01) (ANNEXURE NO. 05) along with all benefits, increments and emoluments.
C. pass an order / direction that a high level enquiry be initiated and culprits be punished for forgery being done in pursuance of deep rooted conspiracy, corruption and malpractices at the Kumaun University in various appointments of teaching and working staff.”
We heard learned counsel for the petitioner and Ms. Mamta Bisht, learned counsel for respondent no. 2. 3. We see no reason to give any direction as such. We notice that, in fact, in the writ petition filed by the petitioner earlier, we declined to interfere on the ground of laches. We noticed that the petitioner has a remedy under Section 68 of the U.P. State Universities Act. Now, apparently the petitioner has invoked the said provision and his complaint is of delay. We would only observe that we would expect that the first respondent will take decision without any undue delay. 4. The writ petition stands disposed of accordingly.” 3.
Petitioner thereafter submitted a representation to the Chancellor under Section 68 of the State Universities Act, 1973. The representation submitted by him was rejected by the Chancellor vide order dated 19.05.2017. In this writ petition, petitioner has challenged the order passed by the Chancellor and has sought other reliefs also, which are extracted above. In his representation made to the Chancellor, petitioner contended that respondent no. 4 was not qualified for appointment as Assistant Professor in terms of UGC Regulations, as her Ph.D. degree was not as per UGC Regulations, 2009, therefore, selection and 3
2025:UHC:2087-DB appointment of respondent no. 4 is bad in law. The Chancellor has considered and discussed all the issues raised by petitioner in great detail while repelling the challenge thrown by petitioner to selection and appointment of respondent no. 4. 4.
From the order passed by Chancellor, it is revealed that respondent no. 4 (Dr. Smt. Lajja Pant Bhatt) was awarded Ph.D. degree in the year 1991; while, respondent no. 5 was awarded Ph.D. degree in the year 2008. Regarding the challenge thrown by petitioner to the appointment of respondent no. 4 on the ground that without NET she is not eligible for appointment as Assistant Professor, the Chancellor, by relying upon the law declared by Hon’ble Supreme Court in the case of Kalyani Mathivanan v. K. V. Keyaraj and others, reported in (2015) 6 SCC 363, has held that since UGC Regulations 2009 & 2010 were adopted by Government of Uttarakhand vide Government Order dated 30.09.2011; while, the respondent nos. 4 & 5 were appointed much earlier on 30.11.2010, therefore, the selection and appointment of respondent no. 4 do not suffer from any infirmity. The order passed by the Chancellor revealed the respondent no. 4 was the top scorer in the interview with 90% marks; while, petitioner scored only 80% marks. 5.
The reasoning given by the Chancellor for upholding the selection and appointment of respondent nos. 4 & 5 in paragraph no. 47 of the impugned order is extracted below:- 4
2025:UHC:2087-DB “47. Therefore, I reach at the conclusion that on the date of issue 21.04.2010 of notification by the Kumaon University provisions of U.G.C. Regulations, 2006 were applicable on the Universities under the State according to which for the Assistant Professors in the University passing of NET was compulsory educational qualification but the candidates who had obtained Ph.D. degree they were exempted from NET eligibility. Because, on the above date, the educational qualification of both the above selected candidates Dr. Lajja Bhatt and Dr. Neeta Arya was complete according to U.G.C. Regulations, 2006 and Government Order No. 204/XXIV (7)/2007-3(15) 2005 dated 24th April, 2007 and the Kumaon University has selected the above candidates according to the above Government Order only, there is no fault in it. In such a situation, the representation of the applicant Dr. Umesh Kumar Singh is rejected.” 6.
Learned counsel for the petitioner vehemently contended that the view taken by the Chancellor is erroneous and UGC Regulations, 2009 and 2010 became effective the moment they were notified and date of adoption of UGC Regulations by Uttarakhand Government will make no difference at all. It is further contended that respondent nos. 4 & 5 are not eligible for appointment, as they were not having NET and the Ph.D. degree they possessed was not as per UGC Regulations, 2009. 7.
The said contention raised on behalf of the petitioner cannot be accepted. In the case of Kalyani Mathivanan v. K. V. Keyaraj (supra), Hon’ble Supreme Court was dealing with an issue that in case of conflict between State University Act and UGC Regulations, which will prevail. After considering the entire law on the subject, Hon’ble Supreme Court summarized the law on the point in paragraph no. 62 of the judgment, which is extracted below:- “62. In view of the discussion as made above, we hold: 62.1. To the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List shall be repugnant to the Central legislation and would be inoperative. 5
2025:UHC:2087-DB 62.2. The UGC Regulations being passed by both the Houses of Parliament, though a subordinate legislation has binding effect on the universities to which it applies. 62.3. The UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central universities and colleges thereunder and the institutions deemed to be universities whose maintenance expenditure is met by UGC. 62.4. The UGC Regulations, 2010 are directory for the universities, colleges and other higher educational institutions under the purview of the State legislation as the matter has been left to the State Government to adopt and implement the Scheme. Thus, the UGC Regulations, 2010 are partly mandatory and is partly directory. 62.5. The UGC Regulations, 2010 having not been adopted by the State of Tamil Nadu, the question of conflict between the State legislation and the Statutes framed under the Central legislation does not arise. Once they are adopted by the State Government, the State legislation to be amended appropriately. In such case also there shall be no conflict between the State legislation and the Central legislation.”
The principle laid down in paragraph nos. 62.4 & 62.5 of the aforesaid judgment, applies to the facts of the present case with full force. Kumaon University is a State University established under State Universities Act, 1973, therefore, UGC Regulations, relied by the petitioner for challenging the selection and appointment of respondent nos. 4 & 5 would not be applicable in Kumaon University, unless the said Regulations are adopted by the State Government. Thus, we concur with the reasoning given by the Chancellor for upholding the selection and appointment of respondent nos. 4 & 5. 9.
Learned counsel for the respondents have relied upon a judgment rendered by Hon’ble Supreme Court in the case of University of Kerala and others v. Marlin J.N. and another, reported in (2022) 9 SCC 389. In the said case, Dr. Jaykumar, who acquired Ph.D. degree on 23.08.2006 was selected for appointment as Lecturer (Sociology); while, respondent Dr. Marlin J.N. 6
2025:UHC:2087-DB was placed at the second position by the Selection Committee. Dr. Marlin J.N. questioned selection and appointment of Dr. Jaykumar on various grounds, including the ground that he had not obtained his Ph.D. as per UGC Ph.D. Regulations, 2009. The writ petition filed by Dr. Marlin J.N. was allowed by learned Single Judge of Kerala High Court, vide judgment dated 01.02.2017. Division Bench of the High Court dismissed the appeals filed by Dr. Jaykumar and University of Kerala. Hon’ble Supreme Court allowed the appeals filed by the University and Dr. Jaykumar by relying on the UGC Regulations, 2016 & 2018, which were held to be declaratory or clarificatory. Relevant extract of the judgment rendered in the case of University of Kerala and others v. Marlin J.N. and another (supra) is reproduced below: “9. Before this Court, it was argued on behalf of Dr Jayakumar as well as the University that the former's appointment was in accordance with the extant law and regulations. It was emphasised that the University adopted the 2009/10 UGCR only with effect from 23-11-2013. In these circumstances, when the advertisement was published, as also when Dr Jayakumar was appointed in August 2012, he was fully qualified and entitled to be appointed as Lecturer. It was further contended that prior to Dr Jayakumar's appointment, the UGC had, through its Resolution dated 12-8-2010 passed in its 471st meeting, clarified that 2009 PhD Regulations and 2009 UGCR were prospective in nature, and not retrospective: “[A]ll candidates who had either obtained PhD on or before 31-12-2009 and such candidates who had registered themselves for PhD degree on or before 31-12- 2009 were exempt from the requirement of NET.” 10. It was argued on behalf of the appellant that the fourth amendment placed the matter beyond any doubt because it rendered eligible candidates who had acquired their PhD degree before 11-7-2009. In this regard, great emphasis was placed on the following: “The proviso prescribed under Regulations 3.3.1, 4.4.1, 4.4.2, 4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in the University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) (3th Amendment) Regulations, 2016 regarding exemption to 7
2025:UHC:2087-DB the candidates registered for PhD programme prior to 11- 7-2009 shall stand amended and be read as under: Provided further, the award of degree to candidates registered for the MPhil/PhD programme prior to 11-7- 2009, shall be governed by the provisions of the then existing Ordinances/bye-laws/regulations of the institutions awarding the degree and the PhD candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions subject to the fulfilment of the following conditions: (a) PhD degree of the candidate awarded in regular mode only; (b) Evaluation of the PhD thesis by at least two external examiners; (c) Open PhD viva voce of the candidate had been conducted; (d) Candidate has published two research papers from his/her PhD work out of which at least one must be in a refereed journal; (e) Candidate has made at least two presentations in conferences/seminars, based on his/her PhD work. (a) to (e) as above are to be certified by the Vice- Chancellor/Pro Vice-Chancellor/Dean (Academic Affairs)/Dean (University instructions).” [ Regn. 3, 2016 UGCR.]
It was argued on behalf of Dr Merlin that Dr Jayakumar was ineligible and could not have been granted exemption from the NET qualification which was essential under the prevalent 2009/10 UGCR. It was highlighted that the 2009 PhD Regulations ushered a new rigorous academic framework for the award of PhD degrees. If one kept this in mind, the stipulation that only those candidates who acquired their PhD in terms of the 2009/10 UGCR were eligible for exemption from taking the NET — such a stipulation was absolute. In other words, candidates who had acquired their PhD in terms of the 2009/10 UGCR were the only class of candidates who were exempt from having to qualify the NET. Since Dr Jayakumar did not fall in that class, but had obtained his PhD much earlier, the exemption did not apply to him. To be eligible, he had to have taken the NET. It was submitted that Dr Merlin on the other hand, was better qualified because she had passed the NET in 1998 and had later obtained a PhD. Further, she was working in the University of Kerala as a contractual teacher since 2001. Despite these factors, the University proceeded to appoint Dr Jayakumar and ignored her candidature. As between the two of them, she alone was qualified, whereas Dr Jayakumar was not. It was submitted that the appellant Dr Jayakumar could not rely upon the resolution of UGC taken in its 471st meeting.
The learned Senior Counsel for Dr Merlin urged that the UGC's resolution was contrary to the express terms of the 2010 UGCR. This became the subject-matter of controversy since the Central Government had expressed its disagreement with the resolution, in a Letter dated 23-11-2010. This controversy was discussed in the decision of this Court in P. Suseela [P. Suseela v. UGC, (2015) 8 SCC 129 : (2015) 2 SCC (L&S) 633 : 7 8
2025:UHC:2087-DB SCEC 333] . The learned counsel relied upon that judgment to urge that this Court had categorically ruled that UGC's resolution taken in its 471st meeting could not provide any relief to candidates similarly situated as Dr Jayakumar as it was at odds with the Central Government's directives which had to prevail in terms of the parent enactment. [ University Grants Commission Act, 1956 (hereinafter “the UGC Act”).] The learned Senior Counsel also relied upon the subsequent judgment in Manoj Sharma [State of M.P. v. Manoj Sharma, (2018) 3 SCC 329 : (2018) 1 SCC (L&S) 585] . It was further argued that the 2016 UGCR were expressly prospective in nature — those possessing PhD qualifications prior to the cut-off date of 11-7-2009 but seeking to benefit from the 2016 UGCR had to fulfil specific conditions (as mentioned above) which were absent hitherto. In the same vein, it was highlighted that though UGC has the power to frame regulations with retrospective effect [by Section 26(3) of the UGC Act] the 2016 UGCR is expressly prospective and that this Court should not, by interpretation, give it retrospective effect, as is being sought by the appellants. In these circumstances, there could be no question of Dr Jayakumar seeking to benefit from the 2016 UGCR which came into force after his appointment. Having regard to these facts, it was urged that this Court should desist from interfering with the concurrent findings of the High Court.
From the narration of facts, it is evident that for long, whenever the UGC introduced regulations pertaining to qualifications for university teaching staff, exemptions were provided for PhD and MPhil holders from the requirement of qualifying in the NET. This is evident from the successive changes which UGC introduced in the relevant regulations dealing with eligibility and qualifications for appointment as Assistant Professors, Associate Professors, etc. in 1993, 2000, 2002 and 2006. The 2009 PhD Regulations were the first time that the pedagogic content of curriculum and manner in which evaluation of thesis/viva voce, etc. were spelt out. Building on this, the 2009/10 UGCR dealt with the qualifications for appointment of teaching staff in universities, and made a break with the past inasmuch as only those who had earned their PhD in terms of the 2009 PhD Regulations or were to earn them under that regime were entitled to the exemption from taking the NET.
This meant that a large group of PhD holders (such as Dr Jayakumar in this case) who had been awarded their doctoral degrees prior to 11-7-2009 i.e. the cut-off date under the 2009 UGCR, suddenly became disentitled to claim exemption and were per force made to appear and qualify in the NET. The UGC become aware of this situation and by two resolutions dated 12- 8-2010 and 27-9-2010, opined that since the regulations are prospective in nature, all candidates having MPhil degree on or before 10-7-2009 and all persons who obtained the PhD degree on or before 31-12-2009 and had registered themselves for the PhD before this date, but would be awarded such degree subsequently, shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. However, as the facts discussed in P. Suseela [P. Suseela v. UGC, (2015) 8 SCC 129 : (2015) 2 SCC (L&S) 633 : 7 SCEC 333] reveal — the Central Government did not agree with the opinion of the UGC. Some correspondence took place between the two authorities i.e. the UGC and the Central Government. It was in the background of these facts that the petitioner in P. Suseela [P. Suseela v. UGC, (2015) 8 SCC 129 :
(2015) 2 SCC (L&S) 633 : 7 SCEC 333] had approached the Allahabad High Court (as did some other candidates in other High Courts). The differing decisions of the various High Courts led to 9
2025:UHC:2087-DB appeals before this Court by special leave. In the batch of cases decided by P. Suseela [P. Suseela v. UGC, (2015) 8 SCC 129 : (2015) 2 SCC (L&S) 633 : 7 SCEC 333] , the question of application of exemption from NET for candidates who obtained PhD under the old regime (i.e. prior to the coming into the force of the 2009 PhD Regulations) was considered — specially whether the distinction between pre-and post-2009/10 UGCR PhD holders amounted to an impermissible classification, whereby one set (pre-2009) was denied exemption which the other set (post-2009) was entitled to.
This Court in P. Suseela [P. Suseela v. UGC, (2015) 8 SCC 129 : (2015) 2 SCC (L&S) 633 : 7 SCEC 333] ruled that since the Central Government was the final authority under the UGC Act, it had the final say with regard to how the 2009/10 UGCR were going to operate. It was held that the regulations had to be construed in such a manner that only those acquiring their PhD degree or after 11-7-2009 in terms of the 2009 PhD Regulations were entitled to the exemption.
The facts of this case would reveal that the selection process was completed in 2012. There is no doubt that at that stage, the 2009 PhD Regulations and 2009/10 UGCR were in force. Yet the University appointed Dr Jayakumar by applying the existing standards as understood by it. According to the University, the 2009/10 UGCR was incorporated in its statute only in 2013. In the opinion of this Court, that detail is irrelevant. What is undeniable is that like Dr Jayakumar, there are perhaps hundreds of other PhD candidates who had secured their degrees prior to the 2009 PhD Regulations and who were, till the 2009/10 UGCR were brought into force, entitled to claim exemption from NET in every selection for any teaching vacancy in any university in India. This state of affairs led the UGC to issue clarifications, which the Central Government did not agree to. The appellant Dr Jayakumar fell within that category of PhD holders for whom the UGC intended to soften the rigours of the 2009/10 UGCR. However, lack of approval by the Central Government led to litigation which culminated in P. Suseela.
17.P. Suseela appears facially, to adversely clinch the issue with respect to pre-2009 PhD holders. The UGC perhaps realised the hardship which they had to endure (with many of them even appointed in various universities on account of the resolution adopted in UGC's 471st meeting on 12-8-2010), and therefore amended the Regulations once more (2016 UGCR), which read as follows:
“3. The proviso prescribed under Regulations 3.3.1, 4.4.1, 4.4.2, 4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in the University Grants Commission (Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and other measures for the maintenance of standards in higher education) (3th Amendment) Regulations, 2016 regarding exemption to the candidates registered for PhD programme prior to 11- 7-2009 shall stand amended and be read as under:
Provided further, the award of degree to candidates registered for the MPhil/PhD programme prior to 11-7- 2009, shall be governed by the provisions of the then existing Ordinances/Bylaws/Regulations of the Institutions awarding the degree and the PhD candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/institutions 10
2025:UHC:2087-DB subject to the fulfilment of the following conditions …” v (emphasis supplied) 18. The intention of the UGC to protect the pre-2009 PhD holders, who may have been appointed in various universities and taught for many years, is evidently clear in the language adopted. To make the intention even clearer, the 2018 UGCR, published on 18-7-2018, bifurcated the pre- and post-2009 PhD holders into two groups, and allowed both exemption from taking the NET, as follows: “I. The National Eligibility Test (NET) or an accredited test (State Level Eligibility Test SLET/SET) shall remain the minimum eligibility for appointment of Assistant Professor and equivalent positions wherever provided in these Regulations. Further, SLET/SET shall be valid as the minimum eligibility for direct recruitment to Universities/Colleges/Institutions in the respective state only: Provided that candidates who have been awarded a PhD degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of MPhil/PhD Degree) Regulation, 2009, or the University Grants Commission (Minimum Standards and Procedure for Award of MPhil/PhD Degree) Regulation, 2016, and their subsequent amendments from time to time, as the case may be, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or any equivalent position in any University, College or Institution: Provided further that the award of degree to candidates registered for the MPhil/PhD programme prior to 11-7- 2009, shall be governed by the provisions of the then existing Ordinances/Bye-laws/Regulations of the Institutions awarding the degree. All such PhD candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions subject to the fulfilment of the following conditions…” (emphasis supplied)
This Court did not have the benefit of examining these amendments to the regulations in P. Suseela or Manoj Sharma To construe them as applying only prospectively, would give rise to an absurdity, and defeat the purpose for which the amendment was promulgated. The manner of interpretation of amendments, where the language adopted gives clear inference of retrospective application, was determined by this Court in Rafiquennessa v. Lal Bahadur Chetri , which pertained to the bar on eviction of tenants brought about retrospectively by an amendment :
“9. … In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly 11
2025:UHC:2087-DB follows from the relevant words and the context in which they occur.” This interpretation has withstood the test of time, and was upheld in the decision of Darshan Singh v. Ram Pal Singh which succinctly stated : (SCC p. 213, para 37) “37. … courts will construe a provision as conferring
power to act retroactively when clear words are used.” 20. Further, in Shyam Sunder v. Ram Kumar , a Constitution Bench of this Court discussed the scope and ambit of a declaratory law and observed : (SCC p. 49, para 39) “39. Lastly, it was contended on behalf of the appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore, has retroactive operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word “declaration” in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective. Conversely where a statute uses the word “declaratory”, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law.”
The respondents herein had submitted that it was not the UGC's intention to give retrospective effect to the 2016 UGCR, even though the UGC had the power to do so under Section 26(3) of the UGC Act. It was additionally urged that in such circumstances, the court should not interpret the amendments so as to confer such benefits retrospectively, especially to pending proceedings.
This Court is unpersuaded by such contentions. In situations such as these, a retrospective restoration of rights which had earlier been taken away, will certainly affect pending proceedings — however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. If on such consideration, it is held by the court that an amendment speaks a language which expressly or by clear intendment takes in even pending matters, the court of first instance as well as the court of appeal must have regard to the intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance. 23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in CIT v. Shelly Products where this Court, while interpreting an amendment, held that : (SCC p. 478, para 38) “38. … It seeks to clarify the law so as to remove doubts 12
2025:UHC:2087-DB leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well-settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit.”
Likewise, in Zile Singh v. State of Haryana , this Court, quoted from G.P. Singh's Principles of Statutory Interpretation (9th Edn.), and applied the relevant rule of construction : (SCC p. 9, para 14)
“14. … If a new Act is “to explain” an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. … An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.”
Another argument raised by the respondent was that this Court's decision in Manoj Sharma squarely held against the appellants. We disagree. In Manoj Sharma , the respondents had obtained MPhil degrees under distance education programs, which was de-recognised by the 2009 PhD Regulations. The Madhya Pradesh High Court held that such de-recognition was prospective in nature, and their MPhil degrees were not rendered ineffective, which was upheld by this Court. As far as the issue of application of 2009 UGCR was concerned, the same was restricted to only MPhil degree-holders, wherein the 2009 UGCR removed the NET exemption granted for MPhil degree-holders, and retained it only for PhD holders in accordance with 2009 PhD Regulations. Again, this Court was not afforded the opportunity to analyse the 2016 or 2018 UGCR, as those were not raised before it (the respondents were unrepresented before this Court). Thus, we find limited applicability of Manoj Sharma to the present case.
The logic pervading all the versions of the UGCR from 1993- 2018 (as discussed above) to exempt MPhil/PhD holders from qualifying in the NET was perhaps premised on the understanding that such a doctorate in one's chosen subject, involving years of study, would render a greater understanding of the subject compared to most other candidates taking the NET who have only obtained a Master's degree. Such qualification (MPhil or PhD) is undoubtedly awarded for a proven proficiency of the candidate in the subject or discipline concerned. This is apparent from the minimum qualification requirements of different positions as well, for e.g. while a Master's degree is sufficient for application to the post of Assistant Professor, a PhD is required for applying to the post of Associate Professor onwards. [See Regn. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication.] To interpret the 2018 UGCR prospectively would imply that a pre-2009 PhD holder's appointment would be 13
2025:UHC:2087-DB rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach — which is clearly unwarranted. This Court therefore, holds that Dr Jayakumar's appointment is protected by the 2016 UGCR, which is applicable retrospectively.
Thus, the appeals are allowed. The impugned judgment is set aside, and all applications are disposed of accordingly. There will be no order as to costs.” 10. Learned counsel for respondent nos. 4 & 5 contended that the challenge thrown by petitioner to the appointment of respondent nos. 4 & 5 suffers from delay and laches and there is no explanation offered for such long delay in the writ petition. They submit that the first writ petition was filed by the petitioner five years after selection and appointment of respondent nos. 4 & 5 and this writ petition is filed after more than seven years of the appointment given to respondent nos. 4 & 5. Thus, they submit that the writ petition is liable to be dismissed on the ground of delay and laches alone. 11. This Court finds some substance in the said contention. It is settled position in law that challenge to appointment/promotion given to a person on a particular post has to be made within a reasonable time and petitioner for the first time challenged the appointment of respondent no. 4, after five years in 2015. In the case of Meena Sharma v. State of J&K,
(2020) 15 SCC 648, Hon’ble Supreme Court held as under:-
“17. In assessing the rival submissions, the central aspect of the case which needs to be emphasised is that after the appointment of the appellant on 3-12-2007, the first challenge to her appointment was four years later in the writ petition of 2011. The fifth respondent filed a writ petition earlier in 2009, but chose not to implead the appellant or to challenge her appointment. Though the fifth respondent claims that she was unaware of the appointment of the appellant, this explanation cannot be 14
2025:UHC:2087-DB accepted for the reason that the select list was annexed at Annexure A-4 to the first writ petition. A diligent enquiry would have revealed that the appellant had been appointed in the meantime. The appellant was appointed after the first two candidates who had been appointed as teaching guides under the RET Scheme resigned from the position. The four-year delay on the part of the fifth respondent in contesting the appointment of the appellant disentitled her to claim any relief.” 12. Similarly, in the case of Sankar Mondal v. State of W.B., 2022 SCC OnLine SC 1800, Hon’ble Supreme Court has held as under:- “6. In our view, in a recruitment process, a candidate cannot be permitted to approach for redressal, howsoever may be the genuineness of the grievance, at any stage of time as there has to be a closure to the process of recruitment. In case of an advertisement dated 1999, the appellant cannot be permitted to plead that he was waiting for seven long years for getting an appointment letter and then woke up to file the O.A. before the State Administrative Tribunal. This itself is a ground to non-suit the appellant”. 13. Now, coming back to the facts of the present case. Respondent no. 4 was awarded Ph.D. degree in 1991. The amendments brought about by UGC in the Regulations in the year 2016 & 2018, which were considered and discussed by Hon’ble Supreme Court in paragraph no. 17 & 18 of the judgment rendered in University of Kerala and others v. Marlin J.N. and another (supra) reveals that UGC relaxed the conditions of 2009 Regulations for candidates who have obtained Ph.D. degree before 2009. Hon’ble Supreme Court held that the amendments made in the UGC Regulations 2016 and 2018 are declaratory or clarificatory, which shall operate from an antecedent date to cover antecedent events. 14. Mr. Anil Kumar Joshi, learned counsel appearing for the petitioner, however, placed reliance upon a judgment rendered by Hon’ble Supreme Court in the case Gambhirdan K. Gadhvi v. State of Gujarat, 15
2025:UHC:2087-DB reported in (2022) 5 SCC 179. Paragraph nos. 29 & 50 of the said judgment, on which heavy reliance was placed, are extracted below:-
“29. It is not in dispute that the SP University is receiving Central financial assistance under the Scheme and it is included in the State Universities receiving Central financial assistance as per Section 12(b) of the UGC Act, 1956. Therefore, having adopted the UGC Scheme and implemented the same and getting Central financial assistance to the extent of 80% of the maintenance expenditure, the State Government and the SP University are bound by the UGC Regulations, 2010. The UGC Regulations, 2010 are superseded by the UGC Regulations, 2018. However, the eligibility criteria for the post of Vice- Chancellor and the constitution of the Search Committee for appointment of a Vice-Chancellor remains the same. Therefore, the State of Gujarat and the universities thereunder including the SP University are bound to follow UGC Regulations, 2010 and UGC Regulations, 2018.
It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject “education” is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto.”
The judgment relied by Mr. Anil Kumar Joshi is distinguishable on facts; while, the judgment rendered in the case of University of Kerala and others v. Marlin J.N. and another (supra) is directly on the point, therefore, in view of the enunciation of law made in the case of University of Kerala and others v. Marlin J.N. and another (supra), this Court do not find any reason to interfere with the order passed by Chancellor. Selection and appointment of respondent nos. 4 & 5 also cannot be faulted in view of reasons indicated above. 16
2025:UHC:2087-DB 16. Thus, the writ petition fails and is dismissed. No order as to costs.
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MANOJ KUMAR TIWARI, J.
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ASHISH NAITHANI, J.
Dt: 24.03.2025 Navin 17 NAVEEN CHANDRA Digitally signed by NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e44 03d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095 C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA Date: 2025.04.22 17:57:12 -07'00'