UGC NET: Reservation Can't Destroy Equality, Says Kerala HC [Read Judgment]
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY,THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938
WP(C).No. 5190 of 2016 (W)
---------------------------
PETITIONER :
--------------------
NAIR SERVICE SOCIETY,
REPRESENTED BY ITS GENERAL SECRETARY,
G.SUKUMARAN NAIR,AGED 71, S/O.GOPALAN NAIR,
HEAD OFFICE, PERUMA, CHANGANASSERY-686 102.
BY ADVS.SRI.R.T.PRADEEP
SMT.MINI GOPINATH
RESPONDENT(S):
--------------------------
1. UNIVERSITY GRANTS COMMISSION,
REPRESENTED BY ITS MEMBER SECRETARY,
UNIVERSITY GRANTS COMMISSION,
NEW DELHI-110 001.
2. THE SECRETARY,
UNION MINISTRY OF HUMAN RESOURCES,
GOVERNMENT OF INDIA, NEW DELHI-110 001.
3. CENTRAL BOARD OF SECONDARY EDUCATION,
REPRESENTED BY ITS SECRETARY, H 149, SECTOR 63,
NOIDA, DISTRICT GAUTHAM BUDH NAGAR-201 (U.P).
4. THE STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
5. THE PRINCIPAL SECRETARY,
SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2/-
-2-
WP(C).NO.5190/2016
*ADDL.R6 IMPLEADED
*ADDL.R6: NIKHIL ANIL, S/O.ANILKUMAR.S, AGED 23 YEARS,
RESIDING AT GEETHAM, VADAKKEVEEDU HOUSE,
CHEMPUMPURAM.P.O., CHAMPAKKULAM,
ALAPPUZHA DISTRICT -688 505
*ADDL.R6 IS IMPLEADED AS PER ORDER DATED 28/3/16 IN IA.NO.3774/2016.
R1 BY ADV. SRI.S.KRISHNAMOORTHY, CGC
R2 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA
SRI.P.L.VENUKUMAR, CGC
R3 BY ADV. SRI.NIRMAL.S, SC, CBSE
R4 & R5 BY GOVERNMENT PLEADER SRI.BABY THOMAS
ADDL.R6 BY ADVS. SRI.K.R.AVINASH (KUNNATH)
SRI.ABDUL RAOOF PALLIPATH
SRI.K.M.ANEESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-07-2016, ALONG WITH WPC.NO. 24730/2016, THE COURT
ON 16-12-2016 DELIVERED THE FOLLOWING:
sts
WP(C).No. 5190 of 2016 (W)
----------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1. TRUE COPY OF THE UNIVERSITY GRANTS COMMISSION
REGULATIONS ON MINIMUM QUALIFICATION FOR APPOINTMENT OF
TEACHERS AND OTHER ACADEMIC STAFFS IN UNIVERSITIES AND
COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARD
OF HIGHER EDUCATION 2010.
EXT.P2. TRUE COPY OF THE NOTIFICATION FOR UGC-NET DECEMBER 2015
TO DETERMINE ELIGIBILITY FOR ASSISTANT PROFESSOR OR
JUNIOR RESEARCH FELLOWSHIP OR BOTH DATED 30/9/2015.
EXT.P3. TRUE COPY OF THE CATEGORY AND SUBJECT WISE RESULT OF NET
HELD IN JUNE 2015 WITH RESPECT TO THE SUBJECTS TAUGHT IN
THE COLLEGES OF THE PETITIONER
EXT.P4. TRUE COPY OF THE TABULATION BASED ON THE RESULT OF NET
HELD IN JUNE BY UGC.
RESPONDENT(S)' EXHIBITS
-----------------------------------------
EXT.R6(A) TRUE COPY OF THE ADMISSION CARD OF THE PETITIONER IN UGC-
NATIONAL ELIGIBILITY TEST (NET) DECEMBER, 2014.
/TRUE COPY/
P.A.TO JUDGE
sts
C.R.
P.B.SURESH KUMAR, J.
= = = = = = = = = = = = = = = = =
WP(C).Nos.5190 & 24730 of 2016.
= = = = = = = = = = = = = = = = =
Dated this the 16th day of December, 2016.
J U D G M E N T
The criteria fixed by the University Grants Commission
for qualifying the National Eligibility Test is under challenge in
these writ petitions. Exhibits are referred to in this judgment as
they appear in WP.(C).No.5190 of 2016. The National Eligibility
Test ('the NET', for short) is provided for in the regulations issued
by the University Grants Commission ('the UGC', for short) for
appointment of teachers and academic staff in Universities and
Colleges. The petitioner in WP.(C).No.5190 of 2016 is a body
engaged in running various educational institutions including Arts
and Science Colleges and the petitioner in WP(C).No.24730 of
2016 is a candidate who failed to qualify in the last NET.
2. The short facts relevant for adjudication of the
WP(C).Nos.5190 & 24730/2016.
2
issues raised in the writ petitions are the following:
The UGC is a body constituted by virtue of the
provisions contained in the University Grants Commission Act for
co-ordination and determination of the standards in institutions
for Higher Education. In exercise of the powers conferred under
the said statute, the UGC issued Ext.P1 Regulations on minimum
qualifications for appointment of teachers and other academic
staff in Universities and Colleges. As per Ext.P1 Regulations,
only candidates who qualify the NET are eligible for appointment
as Assistant Professor in Universities and Colleges. The criteria for
qualifying the NET are being fixed by the UGC from time to time.
Pass in the NET is the criterion for award of Junior Research
Fellowship also. Ext.P2 is the notification issued by the third
respondent on behalf of the UGC for the NET held during
December 2015. In Ext.P2, it is provided that the minimum marks
to be obtained in the NET for the award of Junior Research
Fellowship and eligibility for appointment as Assistant professor
are, 40% for papers I and II and 50% for paper III for general
WP(C).Nos.5190 & 24730/2016.
3
candidates and 35% for papers I and II and 40% for paper III for
OBC (Other Backward Communities), PWD (Persons With
Disability), SC (Scheduled Caste) and ST (Scheduled Tribe)
candidates. It is also provided in Ext.P2 notification that the merit
lists of the candidates who secure minimum marks will be
prepared thereafter subject wise as also category wise based on
the aggregate marks secured by the candidates in all the three
papers and the top 15% candidates in all the categories will be
declared NET qualified for each subject. The petitioners are
aggrieved by the said criteria stipulated in Ext.P2 notification.
According to them, in the light of the lower minimum marks
prescribed for the candidates belonging to the reserved
categories, the number of candidates securing minimum marks in
the NET from the reserved categories is far above the number of
candidates securing minimum marks in the NET from the general
category, and therefore, when the top 15% of candidates from
each category, subject wise, are qualified in the NET, the
qualified candidates in the NET from the reserved categories far
WP(C).Nos.5190 & 24730/2016.
4
outnumber the qualified candidates from the general category,
infringing the fundamental right of equal opportunity guaranteed
under Article 16(1) of the Constitution to the candidates
belonging to general category in matters relating to public
employment. It is the specific case of the petitioner in WP.(C)
No.5190 of 2016 that since candidates are qualified in the NET in
the aforesaid manner, there is dearth of sufficient number of
candidates for appointment against open vacancies and
consequently, less meritorious candidates belonging to reserved
categories are usurping the open vacancies. According to the
petitioners, the said mode of selection is deteriorating the quality
of higher education in the country. The petitioners, therefore,
seek a declaration that Clause 8 of Ext.P2 notification is
unconstitutional, being violative of Articles 14 and 16 of the
Constitution. They also seek directions to the UGC to maintain
uniform minimum marks for candidates for qualification in the
NET irrespective of the fact whether they belong to reserved or
general categories.
WP(C).Nos.5190 & 24730/2016.
5
3. A counter affidavit has been filed by the UGC in
WP.(C) No.5190 of 2016, supporting the criteria laid down for
qualification in the NET as per Ext.P2 notification. The stand
taken by the UGC in the counter affidavit is that there is no
illegality in prescribing lower minimum marks for pass in the NET
for reserved categories and since only the candidates who secure
the minimum marks in the reserved categories are entitled to be
qualified in the NET, there is no illegality in qualifying the top
15% among them.
4. Heard the learned counsel for the petitioners, the
learned Standing Counsel for the UGC as also the learned
Standing Counsel for the third respondent.
5. The learned counsel for the petitioners
vehemently contended that in so far as lower minimum marks
are prescribed for the candidates belonging to reserved
categories for pass in the NET, a further classification among the
candidates who have secured the minimum marks, other wise
than on the basis of the aggregate marks secured by them, is
WP(C).Nos.5190 & 24730/2016.
6
arbitrary. According to the learned counsel, in so far as lower
minimum pass marks are prescribed for candidates belonging to
reserved categories, there cannot be any further preference to
them as provided for in Step III. Per contra, the learned standing
counsel for the UGC contended that the criteria fixed for
qualification in the NET is perfectly in order.
6. I have anxiously considered the contentions
raised by the learned counsel for the parties. Clause 8 of Ext.P2
notification, which is under challenge, reads thus:
"PROCEDURE & CRITERIA FOR DECLARATION OF
RESULT: This will comprise of following steps:
Step I: Minimum marks to be obtained in NET for considering a
candidate for the award of JRF and eligibility for Assistant Professor:
The candidates are required to obtain minimum marks separately in
Paper-I, Paper-II and Paper-III as given below:
CATEGORY Minimum Marks (%) to be obtained.
PAPER-I PAPER-II PAPER-III
GENERAL 40 (40%) 40 (40%) 75 (50%)
OBC
(Non-creamy layer) 35 (45%) 35 (35%) 60 (40%)
PWD/SC/ST
Step II: Amongst those candidates who are cleared step I, a merit
list will be prepare subject wise and category-wise using the
aggregate marks of all the three papers secured by such candidates.
Step III: Top 15% candidates (for each subject and category), from
the merit list mentioned under Step II, will be declared NET qualified
WP(C).Nos.5190 & 24730/2016.
7
for eligibility for Assistant Professor only.
Step IV: A separate merit list for the award of JRF will be prepared
from amongst the NET qualified candidates figuring in the merit list
prepared under step III."
It is beyond dispute that certain number of posts of Assistant
Professor in the Universities and Colleges are reserved for
candidates belonging to Backward Communities, Scheduled
Castes, Scheduled Tribes and for persons with disability. The
same is done by the appropriate Governments obviously in
discharge of their obligation under Article 16(4) of the
Constitution to protect the fundamental right of equality in public
employment guaranteed to the candidates belonging to the said
categories under Article 16(1) of the Constitution. It is also
beyond dispute that only candidates who are NET qualified are
entitled to participate in the selection process for appointment to
the post of Assistant Professor in Universities and Colleges
irrespective of the fact as to whether they belong to the reserved
categories or the general category. As such, there cannot be any
dispute to the fact that if the candidates belonging to the
reserved categories do not qualify the NET, the State will not be
WP(C).Nos.5190 & 24730/2016.
8
in a position to protect the fundamental right of equality in public
employment guaranteed to them under Article 16(1) of the
Constitution. It is, therefore, evident that the very purpose of
prescribing lower minimum marks for pass in the NET for the
candidates belonging to the reserved categories is to make
available sufficient number of candidates from those categories
for selection for appointment in the vacancies earmarked for
them. So long as certain number of vacancies of Assistant
Professor in Universities and Colleges are reserved for backward
and other classes who are not adequately represented in the
services, it cannot be said that the prescription of lower minimum
marks for candidates belonging to the said classes, as provided
for under Step I of Ext.P2 notification, is illegal in any manner.
7. As noted above, Step II of the procedure only
provides for the preparation of merit lists of the candidates who
have cleared Step I subject wise and category wise based on
their aggregate marks. Step III, however, provides that only the
top 15% of the candidates in the merit lists subject and category
WP(C).Nos.5190 & 24730/2016.
9
wise, will be declared NET qualified. The question, therefore, is
whether the said criterion is valid. The case of the petitioners is
that since lower minimum marks are prescribed for the
candidates belonging to reserved categories, the number of
candidates securing minimum marks in the NET from the
reserved categories is far above the number of candidates
securing minimum marks in the NET from the general category
and that therefore, when the top 15% of candidates from each
category are qualified in the NET from the merit lists prepared
based on the aggregate marks, sufficient number of candidates in
proportion to open vacancies are not NET qualified from the
general category. In order to substantiate the case that only less
number of candidates are NET qualified from general category on
account of the impugned criteria, the petitioners rely on Ext.P4
tabulation indicating the number of candidates qualified in the
NET held during June, 2015 in the reserved as also the general
categories. Going by the data furnished in Ext.P4, which is not
disputed by the UGC in the counter affidavit filed in this matter,
WP(C).Nos.5190 & 24730/2016.
10
the number of candidates qualified in the last NET from reserved
categories varies from 38.92% to 91.8%, the average being
62.17%. According to the petitioners, on account of the said
reason, candidates belonging to reserved categories are getting
selected for appointment to both open and reserved vacancies,
thereby infringing the fundamental rights guaranteed to the
candidates belonging to general category under Article 16(1) of
the Constitution. In other words, the case of the petitioners is
that a qualifying examination which would not ensure sufficient
number of qualified hands for appointment against open
vacancies is violative of the fundamental right guaranteed to the
general candidates under Article 16(1) of the Constitution.
8. Though the impugned criteria do not provide for
any reservation, since the same are attacked on the ground that
the provision made therein, to ensure the right to equal
opportunity in public employment guaranteed to backward and
other classes of citizens under Article 16(4) of the Constitution,
results in infringement of the fundamental right guaranteed to
WP(C).Nos.5190 & 24730/2016.
11
the candidates belonging to general category under Article 16(1)
of the Constitution, it is necessary to refer to the principles on
which the State should harmonise the fundamental right to equal
opportunity in public employment guaranteed to the citizens
under Article 16 of the Constitution. It is settled that no
provision of reservation or preference can be so vigorously
pursued as to destroy the very concept of equality. Equality is
the rule and protection is the exception. Exception cannot
exhaust the rule. The purpose of Articles 14 and 16 of the
Constitution is equality and equality of opportunity respectively,
and Article 16(4) is only a means of achieving the very same
objective. Both the provisions have, therefore, to be harmonised
keeping in mind the fact that both are but the restatements of
the principle of equality enshrined in Article 14. The provision
under Article 16(4) conceived in the interest of certain sections of
society should be balanced against the guarantee of equality
enshrined in Article 16 (1) which is a guarantee held out to every
citizen and to the entire society. Neither should be allowed to
WP(C).Nos.5190 & 24730/2016.
12
eclipse the other. If the extent of reservation goes beyond the
desirable limit, it is settled that it would result in reverse
discrimination. [See Indra Sawhney v. Union of India (AIR
1993 SC 477)]. It is on the basis of the aforesaid principles, the
Apex Court held in Indra Sawhney (supra) that reservation of a
majority of the seats was never envisaged by the founding
fathers of our Constitution and that the same at any rate should
not exceed 50%. Relying on the decisions of the Apex Court in
M. R. Balaji and others v. The State of Mysore and others
(AIR 1963 SC 649), T. Devadasan v. Union of India and
another (AIR 1964 SC 179) and Indra Sawhney's case
(supra), the Apex Court has held in P.G.Institute of Medical
Education and Research, Chandigarh v. Faculty Association
(AIR 1998 SC 1767) that Articles 14, 15 and 16 including Article
16(4) must be applied in such a manner so that a balance is
struck in the manner of appointments by creating reasonable
opportunities for the reserved classes and also for the other
members of the society who do not belong to reserved classes.
WP(C).Nos.5190 & 24730/2016.
13
It was also held by the Apex Court in the said case that while
providing for preferences in favour of backward classes, the State
shall not ignore the fundamental rights of the rest of the citizens,
indicating that while serving the cause of backward classes, the
State shall not unreasonably encroach upon the field of equality.
It is worth referring in this context, to a passage from the
judgment of the Apex Court in M.Nagaraj v. Union of India
[(2006) 8 SCC 212], which reads thus:
"Word of caution against excess reservation was first
pointed out in G.M., S.Rly. v. Rangachari. Gajendragadkar, J.
giving the majority judgment said that reservation under Article 16
(4) is intended merely to give adequate representation to
backward communities. It cannot be used for creating monopolies
or for unduly or illegitimately disturbing the legitimate interests of
other employees. A reasonable balance must be struck between
the claims of Backward Classes and claims of other employees as
well as the requirement of efficiency of administration."
It was also emphasised by the Apex Court in M.Nagaraj (supra)
that in matters like this, a stable equilibrium shall be found out
between justice to the backwards, equity for the forwards and
efficiency for the entire system. The contention raised by the
petitioners as aforesaid needs to be examined in the light of the
WP(C).Nos.5190 & 24730/2016.
14
principles referred to above.
9. It is seen that by securing the minimum marks,
one does not get qualified in the NET. In order to qualify the
NET, the candidates should come within the first 15% of the
merit lists prepared on the basis of aggregate marks category
wise. The benefit of lower minimum marks prescribed for pass in
the NET for candidates belonging to the reserved categories will
enure to their benefit only if they come within the top 15% of the
candidates in the respective categories. In other words, as
indicated above, lower minimum marks are prescribed for
candidates belonging to reserved categories only to ensure that
sufficient number of candidates are available for selection from
those categories. As such, it cannot be contended that there
cannot be any further classification after the pass in the NET and
that the qualification in the NET shall thereafter be solely on the
basis of the aggregate marks secured by the candidates, for, if
the said course is adopted, selection thereafter will be virtually on
the basis of merit and sufficient number of candidates from
WP(C).Nos.5190 & 24730/2016.
15
reserved categories cannot be ensured for selection. It has,
therefore, to be conceded that a further classification of the
candidates securing minimum marks in the NET is necessary to
ensure the right to equal opportunity guaranteed to the
candidates belonging to the reserved categories. As noted
above, the criterion to be adopted to ensure the said right of the
reserved categories in a case like this shall be a criterion which
would ensure justice to the candidates belonging to the reserved
categories, equity for the candidates belonging to the general
categories and would ensure standards of the higher education
system. Does the present criteria contained in Step III of Ext.P2
prospectus satisfy the said Constitutional requirement is the
question to be answered. While it is the Constitutional obligation
of the instrumentalities of the State to ensure that sufficient
number of candidates are NET qualified from reserved categories
to stake claim for appointment against the seats reserved for
them, the instrumentalities of the State are equally obliged to
ensure that the provision made for protecting the rights of
WP(C).Nos.5190 & 24730/2016.
16
reserved categories does not affect the sufficiency of the
candidates from general category to stake claim for appointment
against open vacancies. If the candidates from general category
are eliminated while ensuring the interests of the candidates from
reserved categories, it is beyond dispute that the candidates
belonging to reserved categories will be able to claim not only the
seats reserved for them, but also the open seats, for, there is no
interdiction for them to claim appointment against open
vacancies on merit. Situation of that nature would certainly be a
situation of reverse discrimination. As noted above, after Step II,
five separate lists are prepared for the five categories viz,
General, OBC, SC, ST and Persons with Disability, based on
aggregate marks secured by the candidates. Assuming that only
a very few candidates from the general category secure the
higher minimum marks prescribed for pass in the NET in a
particular year, 15% of the same will be very negligible.
Likewise, if large number of candidates from the four reserved
categories secure the lower minimum marks prescribed for pass
WP(C).Nos.5190 & 24730/2016.
17
in a particular year, 15% from each of the said categories will
be substantially high. It is beyond dispute that candidates
securing places in the merit lists would depend upon the number
of candidates applied for the NET and their performance. As
such, if almost equal number of candidates are securing places in
all the five lists, the number of candidates qualifying the NET
from among the candidates belonging to general category would
only be 20%. In all the said situations, the number of NET
qualified candidates from reserved categories would far
outnumber the number of NET qualified candidates from general
category. That does not mean that the same will be the position
always for every subject. Depending upon the number of
candidates applied for the NET and their performance, the
reverse situation is also possible. But, the fact remains that if
the impugned criteria is adopted, the number of NET qualified
candidates from general category reaching to a skeleton
percentage cannot be ruled out. As noted above, in the last
selection process, the number of candidates qualified from the
WP(C).Nos.5190 & 24730/2016.
18
reserved categories for some subjects went upto 91.8% and the
average was 62.17%. In other words, even in the last selection,
the NET qualified candidates from general category were very
minimal when compared to the NET qualified candidates from
reserved categories for some subjects. There is no dispute to the
fact that more than 50% of the vacancies in the post of Assistant
Professor in Universities and Colleges are open vacancies. When
more than 50% of the vacancies in the post of Assistant
Professor in Universities and Colleges are open vacancies and
when NET qualification is mandatory for staking a claim for
selection in the said vacancies, a criterion which is likely to
eliminate more than 50% of the candidates from general
category from acquiring the NET qualification cannot be said to
be a valid one, especially when they, or at least a substantial
number among them, are more meritorious than the candidates
who are NET qualified from the reserved categories. For the
aforesaid reasons, I have no hesitation to hold that the impugned
criteria would infringe the fundamental right to equal opportunity
WP(C).Nos.5190 & 24730/2016.
19
guaranteed to the candidates belonging to the general category
under Article 16(1) of the Constitution and hence
unconstitutional.
10. The learned counsel for the third respondent in
WP(C).No.24730 of 2016, the Central Board of Secondary
Education, who have conducted the last NET on behalf of the UGC
contended that the petitioner in WP(C).No.24730 of 2016 being a
person who has not secured the minimum marks in the NET has
no locus standi to challenge the criterion after the NET. There is
force in this contention. But, neither the third respondent in the
said writ petition nor the UGC has disputed the locus standi of the
petitioner in WP(C).No.5190 of 2016 in instituting the writ
petition. Further, it is seen that in West Bengal Head Masters'
vs Union of India and ors. (AIR 1983 Calcutta 448), the
Calcutta High Court took the view that any person interested in
education may come to the High Court complaining about any
illegality committed by the statutory body entrusted with
education and seek relief against such illegality. In the light of
WP(C).Nos.5190 & 24730/2016.
20
the aforesaid decision, it cannot be said that the petitioner in WP
(C) No.5190 of 2016 has no locus standi to prefer a writ petition
of the said nature. The question whether the petitioner in WP
(C).24730 of 2016 has the locus standi to institute the said writ
petition is, therefore, irrelevant. At the same time, since none of
the candidates belonging to general category who have secured
more marks than the NET qualified candidates from reserved
categories have approached this Court and since none of the
candidates who are NET qualified in the last NET are made
parties to the writ petitions, it may not be proper for this Court to
interfere with the result of the last NET conducted on the basis of
the criteria which is found to be unconstitutional.
In the result, the writ petitions are allowed and the
criterion prescribed by the UGC for qualifying the NET as
contained in Step III of Clause 8 of Ext.P2 notification is declared
unconstitutional. It is made clear that this judgment will not
affect the result of the NET held pursuant to Ext.P2 notification. It
is also made clear that the UGC is free to evolve a criterion which
WP(C).Nos.5190 & 24730/2016.
21
would not affect the sufficiency of meritorious candidates from the
general category for selection to all open vacancies in future
National Eligibility Tests.
Sd/-
P.B.SURESH KUMAR,
JUDGE.
Kvs/-
// true copy //