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validity of notification – The notification prescribing educational qualification of doctorate degree or equivalent with 55% marks at the Master’s Degree Level examination or 12 years teaching experience of degree classes in a college affiliated to any university or equivalent is upheld as validly prescribing the qualifications for filling the post by direct recruitment.

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 1

 Reportable

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 7570 OF 2011

 [Arising out of SLP (C) No.3568/2006]

Chandigarh Administration through the

Director Public Instructions (Colleges), Chandigarh ... Appellant

Vs.

Usha Kheterpal Waie & Ors. ... Respondents

 J U D G M E N T

R.V.RAVEENDRAN,J.

 Leave granted. 

2. There are four Government Arts and Science colleges in Union 

Territory of Chandigarh. Till 1988, the Chandigarh Administration, 

appellant herein, used to fill the vacancies of the post of Principal of the Arts 

and Science colleges by deputation from neighbouring States of Punjab and 

Haryana. When the post of Principal in Government College for Boys, 

 2

Sector 11, Chandigarh was due to fall vacant on 29.2.1988 on 

superannuation of a deputationist, two UT cadre lecturers filed an 

application before the Central Administrative Tribunal, Chandigarh, seeking 

a direction that UT cadre lecturers from the Government Arts & Science 

Colleges should be considered for the post of Principal instead of taking 

someone on deputation from the neighbouring states. The said application 

was ultimately disposed of with a direction to the Chandigarh 

Administration to consider the case of the applicants and other lecturers of 

UT cadre who may fall within the zone of consideration as may be 

determined by a competent authority, for regular appointment to the post of 

Principals of the Government Arts & Science colleges, on the basis of 

relevant criteria, and appoint those who were found suitable. In pursuance of 

the said order, the Chandigarh Administration fixed 30 years experience as 

Lecturer as the eligibility criterion for promotion of lecturers to the post of 

Principal, though at that time (1989-90) there were no lecturer with 30 years 

experience in the cadre. As no UT cadre lecturer possessed such experience, 

again deputationists were appointed as Principals in the said colleges.

3. Feeling aggrieved, the UT cadre lecturers again approached the 

Tribunal and their applications were allowed by the Tribunal by order dated 

 3

12.1.1991, quashing the order prescribing 30 years experience as also the 

order appointing deputationists. Thereafter, whenever vacancies arose, it is 

stated that the appellant promoted UT cadre lecturers as Principals. It may be 

mentioned that persons so promoted did not possess a Ph.D. degree. 

4. By notification dated 13.1.1992, Chandigarh Administration adopted 

the corresponding Service Rules of Punjab with effect from 1.4.1991 to 

govern the conditions of service of its employees, where it had no rules 

governing the matter. The effect of it was that the provisions of Punjab 

Educational Service (College Grade) (Class I) Rules, 1976 (as amended in 

1983 (for short `1976 Punjab Rules') became applicable in regard to the 

recruitment of candidates to UT college cadre. Under the said 1976 Punjab 

Rules, the qualification and experience for appointment to the service was as 

under: For direct recruitment : (a) MA, first division or high second 

division (50%) in relevant subject or an equivalent degree of a foreign 

university with eight years teaching experience; (b) Ph.D. with eight years 

teaching experience; By promotion : Experience of working as a lecturer for 

a minimum period of eight years. 

 4

5. When matters stood thus the Administrator, Chandigarh 

Administration, framed and notified the "Chandigarh Educational Service 

(Group A Gazetted) Government Arts and Science College Rules, 2000 (for 

short `Recruitment Rules') vide notification dated 29.3.2000 published in 

the Gazette dated 1.4.2000. The said Rules were framed in consultation with 

the Union Public Service Commission (`UPSC' for short) and sent to the 

Government of India for being issued in the name of the President of India. 

As per the said Rules, the appointment to the posts of Principal in 

Government Arts and Science Colleges was 25% by direct recruitment and 

75% by promotion. The said rules prescribed the educational qualification of 

Ph.D. for appointment to the post of Principal by direct recruitment. The 

appellant advertised a post of Principal (which was falling vacant on 

31.7.2001) on 14.7.2001 prescribing the following eligibility criteria as per 

the said Rules : 

 "Educational and other qualifications required for direct recruits : 

 Essential: (i) A Doctorate degree or equivalent with at least 55% marks at 

 the Master's Degree level from a recognized university or equivalent; (ii) 

 12 years teaching experience of degree classes in a college affiliated to a 

 university or equivalent."

6. Respondents 1 to 4 had joined UT Colleges (Arts & Science) cadre in 

1969 and 1970 and were serving as lecturers in the Government Arts & 

Science Colleges. None of them possessed a Ph.D. degree. They filed OA 

 5

No.684/CH/2001 before the Central Administrative Tribunal challenged the 

said Recruitment Rules and the advertisement dated 14.7.2001, as 

unconstitutional and for a direction that they along with other eligible 

candidates from the UT cadre should be considered for promotion to the said 

post. It was contended that the Administrator of the Union Territory had no 

power to make the said Recruitment Rules, as it was only the President of 

India who was competent to frame such rules under Article 309 of the 

Constitution of India. They also contended that on earlier occasions the 

appellant had promoted lecturers as Principals without insisting upon the 

qualification of Ph.D.; and that though they did not possess Ph.D. degree, 

having regard to the eligibility criteria earlier being applied, they were 

eligible for being considered for the post of Principals, and the Chandigarh 

Administration should fill the vacancies of Principals, by applying the 

eligibility criteria which was prevalent prior to the making of the said 

recruitment rules. 

7. The appellant, in its statement of objections filed before the Tribunal 

conceded that the "power to notify the recruitment rules for Class I Posts 

vested with the President of India". The appellant stated that they had 

forwarded the Recruitment Rules to the government of India under cover of 

 6

letter dated 21.9.2001, to notify the said Rules under the name of President 

of India, and such notification was awaited. They contended that pending 

publication of the Rules, they could resort to recruitment in terms of the 

draft Rules on the basis of administrative instructions. The appellant also 

contested the application by contending that the post in question was 

required to be filled under the direct recruitment quota, and none of the 

applicants were eligible as they did not possess Ph.D. degree, which was the 

qualification prescribed by the university Grants Commission (`UGC' for 

short) and approved by the UPSC, and therefore none of them could be 

considered for appointment to the said post. 

8. The said application (OA No.648 - CH of 2001) was allowed by the 

Tribunal, by order dated 22.4.2002. The Tribunal held that in the absence of 

any recruitment rules prescribing such qualification, Ph.D. degree was not an 

eligibility requirement for the post of Principal. The Tribunal held that UGC 

guidelines would not apply as the Rules providing for 25% by direct 

recruitment was not in force; and that even if the new rules were to be duly 

framed, such Rules would apply only to future vacancies and not to the 

vacancies which arose on 31.7.2001. The Tribunal held that in the absence 

of any Rules, it was appropriate to take guidance from its earlier judgments 

 7

dated 12.9.1989 and 12.11.1991 which accepted the administrative 

instructions dated 20.8.1987 permitting UT cadre lecturers to be promoted as 

Principals, even though they did not possess any Ph.D. degree. The Tribunal 

also rejected the contention of the appellant that as per notification dated 

13.1.1992, the 1976 Punjab Rules became applicable under which 75% of 

the posts had to be filled by promotion and 25% by direct recruitment with 

Ph.D as an eligibility requirement, on the ground that no material was placed 

to show that the said 1976 Punjab Rules were ever followed for appointing 

Principals in UT of Chandigarh. The Tribunal therefore quashed the 

advertisement dated 14.7.2001 inviting applications for the post of Principal 

and directed the appellant to fill the vacancy according to law, keeping in 

view the eligibility criteria and the past practice till the Rules are framed and 

notified by the competent authority. The said order of the Tribunal was 

challenged by the appellant before the High Court. The High Court 

dismissed the writ petition by impugned order dated 26.10.2005, affirming 

the findings of the Tribunal. 

9. Feeling aggrieved, the appellant has filed this appeal by special leave 

raising the following contentions: (i) When appellant has framed the draft 

Rules in consultation with UPSC and had been placed the Rules before the 

 8

central government, for being notified under the name of the President of 

India, pending such notification of the Rules, it was entitled to invite 

applications for the post of Principal in terms of the said Rules by treating 

them as draft rules under consideration. (ii) The Tribunal and the High Court 

could not substitute the eligibility requirements prescribed by the appellant. 

(iii) The Tribunal and the High Court could not have ignored the notification 

dated 13.1.1992 adopting the corresponding Punjab Rules to govern the 

service of its employees wherever there were no rules of the Chandigarh 

Administration. (iv) The 1976 Punjab Rules were applicable, and in terms of 

it, the advertisement for filling one post of Principal by direct recruitment by 

prescribing the eligibility requirement of Ph.D was valid. The appellant also 

pointed out that another bench of the Tribunal by order dated 3.8.1995 in 

OA No.844-CH of 1994 has clearly held that the 1976 Punjab Rules would 

apply to recruitment/employment, having regard to the notification dated 

13.1.1992 of the Chandigarh Administration adopting the Punjab Rules; and 

as there was a clear divergence between the two decisions of the Tribunal, 

the High Court could not have mechanically affirmed the decision of the 

Tribunal that the 1996 Punjab Rules were inapplicable.

 9

10. The first question for our consideration is whether the appellant could 

have prescribed in the advertisement, the educational qualifications for the 

post of Principal in terms of its 2000 Recruitment rules. The Administrator 

of the Chandigarh Administration made the Chandigarh Educational Service 

(Group A) Gazetted Government Arts & Science College Rules, 2000 vide 

notification dated 29.3.2000 and published it in the Gazette dated 1.4.2000. 

The said Rules were made in consultation with the UPSC, taking note of the 

UGC guidelines prescribing Ph.D. degree as an eligibility criteria for the 

post of Principals to be filled by direct recruitment. The Rules were sent to 

the Central Government for being notified in the name of the President of 

India and were pending consideration. It is in these circumstances the 

appellant advertised the post in terms of the said Rules, by prescribing the 

educational qualification of Ph.D. for direct recruitment to the post of 

Principal. In Abraham Jacob vs. Union of India [1998 (4) SCC 65], this 

Court held that where draft rules have been made, an administrative decision 

taken to make promotions in accordance with the draft rules which were to 

be finalized later on, was valid. In Vimal Kumari vs. State of Haryana [1998 

(4) SCC 114], this Court held that it is open to the Government to regulate 

the service conditions of the employees for whom the rules were made, even 

if they were in their draft stage, provided there is a clear intention on the part 

 10

of the Government to enforce those rules in the near future. In this case, the 

High Court however rejected the advertisement on the ground that the 

regular rules were not notified by the President of India even after five years, 

when the High Court decided the matter. But what is relevant to test the 

validity of the advertisement, was the intention of the appellant when the 

advertisement was issued. At that time, the appellant had the clear intention 

to enforce the Recruitment Rules in future as they had been made in 

consultation with UPSC, in accordance with the UGC guidelines and the 

Rules had been sent to the Central Government for being notified by the 

President and the matter was pending consideration for a few months when 

the advertisement was issued. The appellant at that time had no inkling that 

there would be inordinate delay or the Rules may not be notified by the 

President. Therefore, the advertisement in terms of the 2000 Recruitment 

rules was valid. 

11. Even in the absence of valid rules, it cannot be said that the 

advertisement was invalid. In exercise of its executive power, the appellant 

could issue administrative instructions from time to time in regard to all 

matters which were not governed by any statute or rules made under the 

Constitution or a statute. In fact it is the case of the respondents that the 

 11

appellant had issued such instructions on 20.8.1987 directing that the 

lecturers from UT cadre should be promoted as principals. In fact, the 

administrator of appellant had issued a notification on 13.1.1992 adopting 

the corresponding Punjab Rules to govern the service conditions of its 

employees. If so, the administrator of appellant could issue fresh directions 

in regard to qualifications for recruitment. The Recruitment Rules made by 

the Administrator were duly notified. Though they were not rules under 

Article 309, they were nevertheless valid as administrative instructions 

issued in exercise of executive power, in the absence of any other Rules 

governing the matter. Once the recruitment rules, made by the 

Administrator, were notified, they became binding executive instructions 

which would hold good till the rules were made under Article 309. 

Therefore, the advertisement issued in terms of the said Recruitment Rules 

was valid.

12. The Tribunal and High Court also committed an error in holding that 

the appellant could not prescribe the qualifications of Ph.D. for the post of 

principal merely because earlier the said educational qualification was not 

prescribed or insisted. The Recruitment Rules were made in consultation 

with UPSC, to give effect to the UGC guidelines which prescribed Ph.D. 

 12

degree as the eligibility qualification for direct recruitment of Principals. In 

fact, even the 1976 Punjab Rules prescribed Ph.D. degree as a qualification. 

In several States, Ph.D. is a requirement for direct recruitment to the post of 

a college Principal. When the said qualification is not unrelated to the duties 

and functions of the post of Principal and is reasonably relevant to maintain 

the high standards of education, there is absolutely no reason to interfere 

with the provision of the said requirement as an eligibility requirement. It is 

now well settled that it is for the rule-making authority or the appointing 

authority to prescribe the mode of selection and minimum qualification for 

any recruitment. Courts and tribunals can neither prescribe the qualifications 

nor entrench upon the power of the concerned authority so long as the 

qualifications prescribed by the employer is reasonably relevant and has a 

rational nexus with the functions and duties attached to the post and are not 

violative of any provision of Constitution, statute and Rules. [See J. 

Rangaswamy vs. Government of Andhra Pradesh - 1990 (1) SCC 288 and 

P.U. Joshi vs. Accountant General - 2003 (2) SCC 632]. In the absence of 

any rules, under Article 309 or Statute, the appellant had the power to 

appoint under its general power of administration and prescribe such 

eligibility criteria as it is considered to be necessary and reasonable. 

Therefore, it cannot be said that the prescription of Ph.D. is unreasonable. 

 13

13. The Tribunal and the High Court have held that in the years 1989 and 

1991, the Tribunal had accepted the earlier administrative instructions dated 

20.8.1987 which required the UT cadre employees to be considered for the 

post has to be followed. The fact that at that time Ph.D. degree was not 

insisted upon, does not mean that for all times to come, Ph.D. degree could 

not be insisted. Ph.D. degree was made a qualification because UGC 

guidelines required it for direct recruitment post and the UPSC approved the 

same. Therefore, merely because on some earlier occasions, the posts of 

Principal were filled by UT cadre lecturers without Ph.D. degree, it cannot 

be argued that the Ph.D. degree cannot be prescribed subsequently. 

14. The Tribunal and High Court were not justified in holding that 1976 

Punjab Rules were not applicable on the ground that no material had been 

placed to show that they were followed while appointing a principal in the 

past. The fact that the appellant had issued a notification dated 13.1.1992 

adopting the corresponding Punjab Rules governing the conditions of 

service of its employees, is not disputed. Therefore when appellant acted in 

accordance with the said directions, it is not necessary to consider whether 

there were any occasion between 1992 to 2001 to invoke the said rules or 

whether they were in fact invoked. The notification dated 13.1.1992 could 

 14

not have been brushed aside in the manner done by the Tribunal and the 

High Court. 

15. In view of the above, we allow this appeal and set aside the order 

dated 22.4.2002 of the Tribunal and the order dated 26.10.2005 of the High 

Court. The original application (OA No.648 - CH of 2001) filed by 

respondents 2 to 5 before the Tribunal is dismissed. The prayer that 

Chandigarh Administration should be directed to fill the vacancies of 

Principals in accordance with the eligibility criteria as was prevalent prior to 

the issue of the notification dated 14.7.2001, is rejected. The notification 

prescribing educational qualification of doctorate degree or equivalent with 

55% marks at the Master's Degree Level examination or 12 years teaching 

experience of degree classes in a college affiliated to any university or 

equivalent is upheld as validly prescribing the qualifications for filling the 

post by direct recruitment. 

 ................................J.

 (R V Raveendran)

New Delhi; ...............................J.

September 2, 2011. (Markandey Katju) 

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