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,  

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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  

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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.   

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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  

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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  

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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  

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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  

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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.

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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  

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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  

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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.  

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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.  

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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  

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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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