1. Heard Sri D.S. Yadav, learned counsel for the petitioner and Sri Vinay Kumar Singh, learned Central Government Standing Counsel for the respondents.
2. This writ petition has been filed praying for the following reliefs :
"A. Issue a writ order or direction in the nature of certiorari3 quashing the -Clause (iv) of Table II of the Notification dated 11.11.2014 contained in minimum qualification for teachers in Pharmacy Institutions 2014 of Notification issued by respondent no.3 (Annexure No.2 to the writ petition).
B. Issue a writ order or direction in the nature of mandamus directing the respondents to declare the embargo regulation as null and void being contrary to the provisions of Article 14, 16, 19 and 21 of the Constitution of India."
3. Briefly stated facts of the present case are that the petitioner has passed B. Pharm in 2nd Division in the year 2005 from U.P. Technical University, Lucknow and passed M. Pharm in the year 2009 from Dr. M.G.R. Medical University, Chennai.
4. The petitioner has challenged the validity of prescribing the minimum qualification as "First Class B. Pharm" by "The Minimum Qualification For Teachers in Pharmacy Institution Regulations, 2014 " (hereinafter referred to as "the Teachers Regulations, 2014").
Submissions on behalf of the Petitioner
5. Learned counsel for the petitioner submits that the petitioner is challenging the constitutional validity of the aforesaid regulation for reason that he is a prospective candidate and intends to apply for the post in the event any vacancy is advertised in future.
6. Learned counsel for the petitioner further submits that prescribing the minimum qualification as First Class in B. Pharm is violative of Articles 14 & 21 of the Constitution of India inasmuch as the embargo of First Class degree in graduation course has not been provided in the regulations framed by Medical Council of India providing for minimum qualification for teachers in medical education whereas for teachers in pharmacy institution the minimum qualification of First Class B. Pharm degree has been incorporated under the Regulations 2014.
7. No other submission has been made before us to challenge the constitutional validity of the minimum qualification "First Class B. Pharm" under Regulations 2014.
Submissions on behalf of the Respondents
8. Learned Central Government Standing Counsel supports the regulations.
Discussion & Findings
9. We have carefully considered the submissions of learned counsels for the parties.
10. The Regulation, 2014 has been framed by the Pharmacy Council of India with the approval of the Central Government in exercise of powers conferred under Sections 10 & 18 of the Pharmacy Act, 1948. Sections 10 and 18 of the Pharmacy Act, 1948 (hereinafter referred to as "the Act 1948") are reproduced below :
"Section 10. Education Regulations.--(1) Subject to the provisions of this section, the Central Council may, subject to the approval of the Central Government, make regulations, to be called the Education Regulations, prescribing the minimum standard of education required for qualification as a pharmacist.
(2) In particular and without prejudice to the generality of the foregoing power, the Education Regulations may prescribe--
(a) the nature and period of study and of practical training to be undertaken before admission to an examination;
(b) the equipment and facilities to be provided for students undergoing approved courses of study;
(c) the subjects of examination and the standards therein to be attained;
(d) any other conditions of admission to examinations.
(3) Copies of the draft of the Education Regulations and of all Subsequent amendments thereof shall be furnished by the Central Council to all State Governments, and the Central Council shall before submitting the Education Regulations or any amendment thereof, as the case may be, to the Central Government for approval under sub-section (1) take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(4) The Education Regulations shall be published in the Official Gazette and in such other manner as the Central Council may direct.
(5) The Executive Committee shall from time to time report to the Central Council on the efficacy of the Education Regulations and may recommend to the Central Council such amendments thereof as it may think fit.
Section 18. Power to make regulations.--(1) The Central Council may, with the approval of the Central Government, [by notification in the Official Gazette,] make regulations consist with this Act to carry out the purposes of this Chapter.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for--
[(a) the management of the property of the Central Council;]
(b) the manner in which elections under this Chapter shall be conducted;
(c) the summoning and holding of meetings of the Central Council, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum;
(d) the functions of the Executive Committee, the summoning and holding meetings thereof, the times and places at which such meetings shall be held, and the number of members necessary to constitute a quorum;
(e) the powers and duties of the President and Vice-President;
(f) the qualifications, the term of office and the powers and duties of the [Registrar, Secretary], Inspectors and other officers and servants of the Central Council, including the amount and nature of the security to be furnished by the [Registrar or any other officer or servant].
(g) the manner in which the Central Register shall be maintained and given publicity;
(h) constitution and functions of the committees other than Executive Committee, the summoning and holding of meetings thereof, the time and place at which such meetings shall be held, and the number of members necessary to constitute the quorum.
(3) Until regulations are made by the Central Council under this section, the President may, with the previous sanction of the Central Government, make such regulations under this section, including those to provide for the manner in which the first elections to the Central Council shall be conducted, as may be necessary for carrying into effect the provisions of this Chapter, and any regulations so made may be altered or rescinded by the Central Council in exercise of its powers under this section.
[(4) Every regulation made under this Act, shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.]"
11. Powers to frame regulations to carry out the purpose of the Act 1948, has been conferred upon the Central Council under Section 18 of the Act, 1948. Sub section (1) of Section 10 specifically confers power upon the Central Council, subject to approval of the Central Government, to make education regulations, prescribing the minimum standard of education required for qualification as a pharmacist. Sub section (2) of Section 10 empowers the Central Council to frame education regulation prescribing (a) the nature and period of study and of practical training to be undertaken before admission to an examination; (b) the equipment and facilities to be provided for students undergoing approved courses of study; (c) the subjects of examination and the standards therein to be attained; and (d) any other conditions of admission to examinations. Thus, to maintain standard of education, it is necessary to have good quality teachers.
12. By the Regulation 2014, to maintain the minimum standard of teaching, the minimum qualification and experience for appointment as teachers in various departments of pharmacy college or institution imparting diploma in graduate and post graduate education has been prescribed as mentioned in the Schedule appended to the Regulations. Clause (ii) of the Schedule is relevant for the purposes of the present case which alongwith notes is reproduced below :-
"B.Pharm/Pharm.D/Post graduate course in Pharmacy -
Director/Principal/ Head of Institution
First Class B.Pharm with Master's degree in Pharmacy (M Pharm) in appropriate branch of specialization in Pharmacy or Pharm.D (Qualifications must be PCI recognised)
with
PhD degree in any of Pharmacy subjects
(PhD Qualifications must be PCI recognized).
Essential
15 years experience in teaching or research out of which 5 years must be as Professor/HOD in a PCI approved/recognised pharmacy college.
Desirable
Administrative experience in a responsible position.
Professor
Master's degree in Pharmacy (M.Pharm) in appropriate branch of specialization in Pharmacy or Pharm.D (Qualifications must be PCI recognized)
With
PhD degree in any of Pharmacy subjects (Ph.D. Qualifications must be PCI recognized)
Essential
10 years experience in teaching in PCI Pharmacy approved/ recognized Pharmacy College or research experience out of which 5 years must be as Associate Professor in be PCI approved/recognized Pharmacy College.
Associate Professor
First Class B.Pharm with Master's degree in Pharmacy (M.Pharm) in appropriate branch of specialization in Pharmacy (Qualification must be PCI recognized)
A PCI recognized Pharm.D degree holder shall also be eligible for the posts of Associate Professor in the subjects of pathophysiology, pharmacology sand pharmacy practice
3 years experience in teaching or research at the level of Assistant Professor or equivalent in PCI approved/ recognized Pharmacy College.
Lecturer/Assistant Professor
First Class B.Pharm with Master's degree in Pharmacy (M.Pharm) in appropriate branch of specialization in pharmacy (Qualification must be PCI recognised).
A PCI recognised Pharm.D degree holder shall also be eligible for the posts of Lecturer/Assistant Professor in the subjects of pathophysiology, Pharmacology and pharmacy practice.
A lecturer will be re-designated as Assistant Professor after 2 years of teaching experience in PCI approved/recognised Pharmacy College.
Note:
(i) Notwithstanding anything contained in the Education Regulations, 1991, the Pharm.D Regulations. 2008 or any other documents approved by the PCI the minimum qualification and experience for the teaching faculty in pharmacy shall be as mentioned in these regulations w.e.f. the date of their publication in the Official Gazette.
(ii) The existing teaching faculty working on regular basis shall not be affected. However, promotions of such faculty will be governed by these regulations.
(iii) If a class or division is not awarded at Master level, a minimum of 60% marks in aggregate or equivalent cumulative grade point average shall be considered equivalent to first class or division, as the case may be.
(iv) The existing teaching faculty working on regular basis can be appointed in any other Pharmacy College/ Institution on the same post from which such faculty member retired/relieved, however, promotions of such faculty member shall be governed by these regulations.
ARCHNA MUDGAL. Registrar-cum-Secy.
[ ADVT. III/4/Exty/101/14]"
13. Since the Act, 1948 empowers the Central Council to frame regulations prescribing the minimum standard of education, therefore, the regulation 2014 prescribing minimum standard as First class B. Pharm amongst others, is well within the powers conferred under Section 10 read with Section 18 of the Act, 1948. Thus, the impugned clause of the Regulation 2014 is not violative of the principal Act, 1948.
14. To prescribe essential qualifications for appointment to a post is essentially within the domain of the employer or the competent authority. The employer is best suited to decide the requirement that a candidate must possess according to the needs of the employer and the nature of work. The court can not lay down the conditions of eligibility and can not dwell into the issue with regard to the minimum standard prescribed by the competent authority by Regulation 2014. This settled position of law is also supported by the law laid down by Hon'ble Supreme Court in the case of Maharashtra Public Service Commission Vs. Sandeep Shriram Warade and others, (2019) 6 SCC 362 (Para 9) and Civil Appeal No.11853 - 11854 of 2018 Zahoor Ahmad Rather and Ors. etc. Vs. Sheikh Imtiyaz Ahmad and Ors. etc. decided by Hon'ble Suprme Court by judgment dated 05.12.2018.
15. The submission of learned counsel for the petitioner that prescribing "First Class B. Pharm" is violative of Article 14 of the Constitution of India, has no leg to stand.
16. Education is necessary to develop the personality of a person as a whole and in totality as it provides the process of training and acquiring the knowledge, skills, developing mind and character by formal schooling. Therefore, it is necessary to maintain high academic standard and academic discipline along with academic rigour. Democracy depends for its own survival on a high standard of vocational and professional education. Therefore, in order to maintain standard of education in Institutions imparting education in the filed of pharmacy, and to develop knowledge and skill of students, it is a basic requirement to recruit good quality and most suitable Teachers in order to maintain excellence and standard of teaching in the Institution. To achieve this object of the Act 1948, the impugned regulations provides for certain educational qualification for recruitment on the post of Principal, Professor, Associate Professor and Lecturer/ Assistant Professors. One of the essential qualification for Associate Professor and Lecturer/Assistant Professor is "First Class B. Pharm" which can not be said to be irrelevant or violative of Article 14 or 21 of the Constitution.
17. In the case of Prit Singh (Dr.) Vs. S.K. Mangal 1993 Supp (1) SCC 714 (Para 12 & 13), Hon'ble Supreme Court examined the case of a person who did not possess the requisite percentage of marks as per the statutory requirement and held that he cannot hold the post. The sole object of prescribing qualification that a candidate must have a consistently good academic record with first class Degree for appointment to the post of Associate Professor or Lecturer/Assistant Professor, is to select a most suitable person in order to maintain excellence and standard of teaching in the institution apart from administration. Thus, if the essential educational qualification prescribed under the Regulation 2014 for recruitment to the post in question, is not satisfied by a person, then he shall not be eligible to apply for the post.
18. In the absence of enabling provision for grant of relaxation, no relaxation can be made to relax the essential qualification. Even if such a power is provided under the Statute, it cannot be exercised arbitrarily, vide Union of India v. Dharam Pal & Ors., (2009) 4 SCC 170. Such a power can not be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. In the present set of facts even the regulation do not confer any power to relax the aforesaid essential qualification of "First Class B Pharm".
19. In the case of State Of Orissa Vs. Mamata Mohanty 2011 3 SCC 436 (Para 20, 21 and 68) Hon'ble Supreme Court considered the challenge of essential qualification of certain percentage of marks in the recruitment of lecturer in affiliated colleges and held it to be valid. The relevant portion of the judgment in the case of State Of Orissa Vs. Mamata Mohanty (supra)(Para 20, 21 and 68) is reproduced below :
"20.The Government of Orissa, Education and Youth Services Department Resolution dated 5-9-1978 dealt with the subject, qualification for recruitment of Lecturers in affiliated colleges of the State of Orissa and the relevant part reads as under:
"A consistently good academic record with at least first or high second class (B in the seven-point scale) at the Master's degree in a relevant subject. In other words, the University Grants Commission intended to determine high second class as average of minimum percentage of marks of second division and first division as (48+60) 54%...."
21. The Orissa State Gazette, 19-8-1983 published a Resolution dated 16-7-1983 prescribing the eligibility for appointment of teachers in affiliated colleges. The relevant part reads as under:
"(a) Candidate should have an MPhil degree or a recognised degree beyond Master's level with at least a second class Master's degree;
(b) A candidate not holding an MPhil degree should possess a high second class Master's degree i.e. 54% of marks and a second class Honours/Pass in the BA/BSc/BCom examination; or
(c) A candidate not holding an MPhil degree but possessing a second class Master's degree should have obtained a first class in the Honours/Pass in the BA/BSc/BCom examination
68. From the aforesaid discussion, the following picture emerges:
(i) The procedure prescribed under the 1974 Rules has not been followed in all the cases while making the appointment of the respondents/teachers at initial stage. Some of the persons had admittedly been appointed merely by putting some note on the noticeboard of the College. Some of these teachers did not face the interview test before the Selection Board. Once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage.
(ii) At the relevant time of appointment of the respondents/teachers there has been a requirement of possessing good second class i.e. 54% marks in Master's course and none of the said respondents had secured the said percentage.
(iii) Their appointments had been approved after a long, long time. In some cases after 10-12 years of their initial appointment by the statutory authority i.e. Director of Higher Education.
(iv) A candidate becomes eligible to apply for a post only if he fulfils the required minimum benchmark fixed by the rules/advertisement. Thus, none of the respondents could even submit the application what to talk of the appointments.
(v) The so-called relaxation by Utkal University was accorded by passing a routine order applicable to a large number of colleges, that too after a lapse of long period i.e. about a decade.
(vi) Fixation of eligibility falls within the exclusive domain of the executive and once it has been fixed by the State authorities under the 1974 Rules, the question of according relaxation by Utkal University could not arise and, therefore, the order of condonation, etc. is a nullity.
(vii) The relaxation has been granted only by Utkal University though Rule 2(i) of the 1974 Rules defined "University" means Utkal University, Berhampur University, Sambalpur University and Shri Jagannath Sanskrit Vishwa Vidyalaya.
(viii) Granting relaxation at this stage amounts to change of criteria after issuance of advertisement, which is impermissible in law. More so, it is violative of the fundamental rights enshrined under Articles 14 and 16 of the Constitution of the similarly situated persons, who did not apply considering themselves to be ineligible for want of required marks.
(ix) The exercise of condonation of deficiency had not been exercised by any university other than Utkal University.
(x) The post of the teachers i.e. the respondents is transferable to any college affiliated to any other university under the 1979 Rules.
(xi) The power to grant relaxation in eligibility had not been conferred upon any authority, either the university or the State. In the absence thereof, such power could not have been exercised.
(xii) This Court in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] has categorically held that a person cannot get the benefit of grant-in-aid unless he completes the deficiency of educational qualification. Further, this Court in Bhanu Prasad Panda (Dr.) [(2001) 8 SCC 532 : 2002 SCC (L&S) 14] upheld the termination of services of the appellant therein for not possessing 55% marks in Master's course.
(xiii) The aforesaid two judgments in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] and Bhanu Prasad Panda (Dr.) [(2001) 8 SCC 532 : 2002 SCC (L&S) 14] , could not be brought to the notice of either the High Court or this Court while dealing with the issue. Special leave petition in Kalidas Mohapatra [ SLPs (C) Nos. 14206-09 of 2001 decided on 11-3-2002] has been dealt with without considering the requirement of law merely making the reference to Circular dated 6-11-1990, which was not the first document ever issued in respect of eligibility. Thus, all the judgments and orders passed by the High Court as well as by this Court cited and relied upon by the respondents are held to be not of a binding nature. (Per incuriam)
(xiv) In case a person cannot get the benefit of grant-in-aid scheme unless he completes the deficiency of educational qualification, question of grant of UGC pay scale does not arise.
(xv) The cases had been entertained and relief had been granted by the High Court without considering the issue of delay and laches merely placing reliance upon earlier judgments obtained by diligent persons approaching the courts within a reasonable time.
(xvi) The authority passed illegal orders in contravention of the constitutional provisions arbitrarily without any explanation whatsoever polluting the entire education system of the State, ignoring the purpose of grant-in-aid scheme itself that it has been so provided to maintain the standard of education.
(xvii) The High Court granted relief in some cases which had not even been asked for as in some cases the UGC pay scale had been granted with effect from 1-6-1984 i.e. the date prior to 1-1-1986 though the same relief could not have been granted. Thus, it clearly makes out a case of deciding a case without any application of mind.
(xviii) In some cases the UGC pay scale has been granted by the High Court prior to the date of according the benefit of grant-in-aid scheme to the teachers concerned which was not permissible in law in view of the law laid down by this Court in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] .
(xix) The grievance of the respondents that not upholding the orders passed by the High Court in their favour would amount to a hostile discrimination is not worth acceptance for the reason that Article 14 of the Constitution envisages only positive equality.
(xx) Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.
(xxi) The submission on behalf of the respondents that government orders/circulars/letters have been complied with, therefore, no interference is called for, is preposterous for the simple reason that such orders/circulars/letters being violative of statutory provisions and constitutional mandate are just to be ignored in terms of the judgment of this Court in Ram Ganesh Tripathi [(1997) 1 SCC 621 : 1997 SCC (L&S) 186 : AIR 1997 SC 1446] ."
20. Thus, the essential qualification of "First Class B. Pharm" amongst other essential qualifications provided under the Regulation, 2014 for recruitment on the post of Associate Professor and Lecturer/Assistant Professor is wholly valid and does not violate fundamental rights of the petitioners under Article 14 and 21 of the Constitution of India.
21. The petitioner has not shown that how amongst equally situated persons, the impugned Regulations 2014 causes any discrimination. Therefore, the argument of learned counsel for the petitioner that prescribing "First Class B. Pharm" amounts to discrimination and thus violative of Article 14 of the Constitution of India, is wholly baseless and is hereby rejected.
22. Nothing could be pointed out nor any material could be placed by learned counsel for the petitioner before us to demonstrate that the impugned provisions of the Regulation 2014 violates fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India.
23. For all the reasons aforestated, we do not find any merit in this writ petition. Consequently, the writ petition fails and is hereby dismissed.
