# Ms. Priti Upadhyay v. Banaras Hindu University & Ors

- **Citation:** (2024) 4 ILRA 343
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Case number:** Writ A No. 11734 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ms-priti-upadhyay-v-banaras-hindu-university-ors-51801
- **Pages:** 10

## Headnote

Service Law - UGC Regulations, 2018 -
Banaras Hindu University
- Assistant
Professor Recruitment - Qualification for
Genetics and Plant Breeding - Challenge to
rolling advertisement no. 01 of 2023-24
(28.06.2023)
prescribing
4-year
B.Sc.
(Agriculture)/B.Sc. (Hons.) (Agriculture)/B.Sc.
(Horticulture) as essential qualification for
Assistant Professor in the Department of
Genetics and Plant Breeding dismissed. UGC
Regulations, 2018, under Regulations 1, 1.1,
3.1, 3.2, 3.4, 3.5, 4, 4.1, mandate a Master's
degree with 55% marks and NET/SLET/SET or
Ph.D. as minimum qualifications for Assistant
Professor, applicable to disciplines including
Agriculture. Employer (University) has discretion
to prescribe specific Bachelor's degree (e.g., 4year B.Sc. Agriculture) to suit departmental
needs, provided it does not dilute the minimum
qualification of a Master's degree. Prescription of
specific Bachelor's degree is not a modification
of
UGC's
minimum
standards
but
an
enhancement within employer's prerogative to
ensure
quality.
Ministry
of
Agriculture's
endorsement (02.08.2010) of UGC Regulations
for Agriculture faculties does not preclude
additional
qualifications
by
the
University.
Petitioner, holding B.Sc. (Biology), failed to
plead equivalence to 4-year B.Sc. (Agriculture).
No illegality in University's requirement, upheld
as within its discretion. (Paras 5-19)

Writ Petition Dismissed.

List of Cases cited:

## Text

4 All. Ms. Priti Upadhyay Vs. Banaras Hindu University & Ors.
343
(2024) 4 ILRA 343
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 11734 of 2023

Ms. Priti Upadhyay ...Petitioner
Versus
Banaras Hindu University & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ishwar Kumar Upadhyay, Sri Sanjeev
Singh

Counsel for the Respondents:
Sri Dhananjay Awasthi, Sri Hem Pratap
Singh, Ms. Pooja Agarwal, Sri Sudhanshu
Srivastava

Service Law - UGC Regulations, 2018 -
Banaras Hindu University
- Assistant
Professor Recruitment - Qualification for
Genetics and Plant Breeding - Challenge to
rolling advertisement no. 01 of 2023-24
(28.06.2023)
prescribing
4-year
B.Sc.
(Agriculture)/B.Sc. (Hons.) (Agriculture)/B.Sc.
(Horticulture) as essential qualification for
Assistant Professor in the Department of
Genetics and Plant Breeding dismissed. UGC
Regulations, 2018, under Regulations 1, 1.1,
3.1, 3.2, 3.4, 3.5, 4, 4.1, mandate a Master's
degree with 55% marks and NET/SLET/SET or
Ph.D. as minimum qualifications for Assistant
Professor, applicable to disciplines including
Agriculture. Employer (University) has discretion
to prescribe specific Bachelor's degree (e.g., 4year B.Sc. Agriculture) to suit departmental
needs, provided it does not dilute the minimum
qualification of a Master's degree. Prescription of
specific Bachelor's degree is not a modification
of
UGC's
minimum
standards
but
an
enhancement within employer's prerogative to
ensure
quality.
Ministry
of
Agriculture's
endorsement (02.08.2010) of UGC Regulations
for Agriculture faculties does not preclude
additional
qualifications
by
the
University.
Petitioner, holding B.Sc. (Biology), failed to
plead equivalence to 4-year B.Sc. (Agriculture).
No illegality in University's requirement, upheld
as within its discretion. (Paras 5-19)

Writ Petition Dismissed.

List of Cases cited:

1. St. of T.N. Vs S.VS Bratheep (Minor), (2004)
4 SCC 513 (Para 15)

2. Maharashtra Public Services Commission Vs
Sandeep Sriram Varade, (2019) 6 SCC 362 (Para
15)

3.
P.U.
Joshi
Vs
Accountant
General,
Ahmedabad, (2003) 2 SCC 632 (Para 15)

4. Dr. Thingujam Achouba Singh Vs Dr. H.N.
Nabachandra Singh, (2020) 20 SCC 312 (Paras
11, 16)

(Delivered by Hon'ble Ajit Kumar J.)

1. Heard Sri Sanjeev Singh, learned
counsel for the petitioner, Ms. Pooja
Agarwal, learned counsel for the University
and Sri Sudhanshu Srivastava, learned
counsel
for
the
Indian
Council
of
Agricultural Research.

2. Petitioner before this Court
questions the rolling advertisement no. 01
of 2023-24 dated 28.06.2023 issued by
Banaras Hindu University (6th respondent)
in so far as it provides for 4 years Honor's
Bachelor's
Degree
as
an
essential
qualification for the post of Assistant
Professor in the Department of Genetics
and Planned Breeding.

3. The argument is two fold: (i) for
the purpose of appointment on the post of
Assistant
Professor
in
a
recognized
University at Master's level the minimum
qualification
prescribed
for
by
the
344 INDIAN LAW REPORTS ALLAHABAD SERIES
University Grants Commission through its
guidelines would prevail; and (ii) while the
University
Act
have
prescribed
for
additional qualification as a preferential
qualification but could not have modified
the minimum qualification prescribed as
eligibility for the post in question.

4. In support of his first argument,
learned Advocate has taken the Court
through the UGC Regulations, 2018 that
prescribed minimum qualification for the
post of Assistant Professor, Associate
Professor and Professor in the Universities
and Colleges running Bachelor's and
Master's Courses and Senior Professors in
the Universities on the basis of merit and
through an All India Advertisement.
Regulation 1 of the UGC Regulations states
that it shall apply to Universities and
College Teachers and cadre of Librarian
etc. while regulation 1.1 provides norms of
standards for teaching positions in various
disciplines that includes Agriculture in the
University. Regulation 3 provides for
recruitment
and
qualifications
and
regulation 3.4 and 4.1(i) provide for
minimum marks that a candidate must have
and also the minimum degree with
minimum percentage of marks. Regulation,
1, 1.1, 3.1, 3.2, 3.4, 3.4(i), 3.5, 3.6, 4, 4.1,
4.1(I), A(i) and (ii) are reproduced
hereunder:

Minimum qualifications for the
post of Senior Professor, Professors and
Teachers, and other Academic Staff in
Universities and Colleges and revision of
pay scales and other Service Conditions
pertaining to such posts.

1.0 Coverage

These Regulations are issued for
minimum qualifications for appointment
and other service conditions of University
and College teachers and revision of pay
scales Directors of Physical Education and
Sport for maintenance of standards in
higher education and revision of payscales.

1.1 For the purposes of direct
recruitment to teaching posts in disciplines
relating
to
university
and
collegiate
education, interalia in the fields of health,
medicine, special education, agriculture,
veterinary and allied fields, technical
education, teacher education, norms or
standards
laid
down
by
authorities
established
by
the
relevant
Act
of
Parliament under article 246 of the
Constitution for the purpose of coordination and determination of standards
in institutions for higher education or
research and scientific and technical
institutions, shall prevail.

i. Provided that where no such
norms and standards have been laid down
by
any
regulatory
authority,
UGC
Regulations herein shall be applicable till
such time as any norms or standards are
prescribed by the appropriate regulatory
authority.

ii. Provided further that for
appointment to the post of Assistant
Professor
and
equivalent
positions
pertaining to disciplines in which the
National Eligibility Test (NET), conducted
by the University Grants Commission or
Council
of
Scientific
and
Industrial
Research as the case may be, or State Level
Eligibility Test (SLET) or the State
Eligibility Test (SET) conducted by bodies
accredited by the UGC for the said
purpose, qualifying in NET/SLET/SET shall
be an additional requirement.

1.2 Every university of institution
deemed to be University, as the case may
be, shall as soon as may be, but not later
than within six months of the coming into
force of these Regulations, take effective
steps for the amendment of the statutes,
4 All. Ms. Priti Upadhyay Vs. Banaras Hindu University & Ors.
345
ordinance or other statutory provisions
governing it, so as to bring the same in
accordance with these regulations.

2.0 Pay Scales, Pay Fixation,
and Age of Superannuation

Pay scales as notified by the
Government of India from time to time
will be adopted by the University Grants
Commission.

2.1 Subject to the availability of
vacant positions and fitness, teachers such
as
Assistant
Professor,
Associate
Professor, Professor and Senior Professor
only, may be re-employed on contract
appointment
beyond
the
age
of
superannuation, as applicable to the
concerned
University,
college
and
Institution, up to the age of seventy years.

Provided further that all such re
employment shall be strictly in accordance
with the guidelines prescribed by the UGC,
from time to time.

2.2 The date of implementation
of the revision of pay shall be 1st January,
2016.

3.0
Recruitment
and
Qualifications

3.1 The direct recruitment to the
posts of Assistant Professor, Associate
Professor and Professor in the Universities
and Colleges, and Senior Professor in the
Universities, shall be on the basis of merit
through
an
all-India
advertisement,
followed by selection by a duly-constituted
Selection Committee as per the provisions
made under these Regulations. These
provisions shall be incorporated in the
Statutes/Ordinances
of
the
university
concerned. The composition of such a
committee shall be as specified in these
Regulations.

3.2 The minimum qualifications
required for the post of Assistant Professor,
Associate Professor, Professor, Senior
Professor. Principal, Assistant Librarian,
Deputy Librarian, Librarian, Assistant
Director of Physical Education and Sports,
Deputy Director of Physical Education and
Sports and Director of Physical Education
and Sports. shall be as specified by the
UGC in these Regulations.

3.3

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 Ph.D. Degree in
accordance with the University Grants
Commission (Minimum Standards and
Procedure for Award of M.Phil./Ph.D.
Degree)
Regulation,
2009,
or
the
University Grants Commission (Minimum
Standards and Procedure for Award of
M.Phil/Ph.D. 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
M.Phil/Ph.D. programme prior to July 11,
2009, shall be governed by the provisions
of the then existing Ordinances/Bye-laws/
Regulations of the Institutions awarding the
degree. All such Ph.D. candidates shall be
exempted
from
the
requirement
of
NET/SLET/SET
for
recruitment
and
appointment of Assistant Professor or
346 INDIAN LAW REPORTS ALLAHABAD SERIES
equivalent
positions
in
Universities/
Colleges/
Institutions
subject
to
the
fulfillment of the following conditions:

a) The Ph.D. degree of the
candidate has been awarded in regular
mode only;

b) The Ph.D. thesis has been
awarded
by
at
least
two
external
examiners;

c) An open Ph.D. viva voce of the
candidate has been conducted;

d) The candidate has published
two research papers from his/her Ph.D.
work out of which at least one is in a
refereed journal;

e) The candidate has presented at
least two papers, based on his/her Ph.D.
work
in
conferences/seminars
sponsored/funded/supported
by
the
UGC/ICSSR/CSIR-or any similar agency.

The fulfilment of these conditions
is to be certified by the Registrar or the
Dean (Academic Affairs) of the University
concerned.

II.
The
clearing
of
NET/SLET/SET shall not be required for
candidates in such disciplines for which
NET/SLET/SET has not been conducted.

3.4 A minimum of 55% marks (or
an equivalent grade in a point-scale,
wherever the grading system is followed)
or the Master's level shall be the essential
qualification for direct recruitment of
teachers and other equivalent cadres at any
level

I. A relaxation of 5% shall be
allowed at the Bachelor's as well as at the
Master's level for the candidates belonging
to Scheduled Caste/Scheduled Tribe/Other
Backward Classes (OBC) (Non-creamy
Layer)/Differently abled ((a) Blindness and
low vision; (b) Deaf and Hard of Hearing,
(c) Locomotor disability including cerebral
palsy, leprosy cured, dwarfism, acid-attack
victims and muscular dystrophy; (d)
Autism, intellectual disability, specific
learning disability and mental illness; (e)
Multiple disabilities from amongst persons
under (a) to (d) including deaf-blindness)
for the purpose of eligibility and assessing
good
academic
record
for
direct
recruitment. The eligibility marks of 55%
marks (or an equivalent grade in a point
scale wherever the grading system is
followed) and the relaxation of 5% to the
categories
mentioned
above
are
permissible, based only on the qualifying
marks without including any grace mark
procedure.

3.5 A relaxation of 5% shall be
provided, (from 55% to 50% of the marks)
to the Ph.D. Degree holders who have
obtained their Master's Degree prior to 19
September, 1991.

3.6 A relevant grade which is
regarded as equivalent of 55%, wherever
the grading system is followed by a
recognized university, at the Master's level
shall also be considered valid.

3.7 The Ph.D. Degree shall be a
mandatory qualification for appointment
and promotion to the post of Professor.

3.8 The Ph.D. Degree shall be a
mandatory qualification for appointment
and promotion to the post of Associate
Professor.

3.9 The Ph.D. Degree shall be a
mandatory qualification for promotion to
the post of Assistant Professor (Selection
Grade/Academic Level 12) in Universities.

3.10 The Ph.D. Degree shall be a
mandatory
qualification
for
direct
recruitment to the post of Assistant
Professor in Universities with effect from
01.07.2021.

3.11 The time taken by candidates
to acquire M.Phil. and/or Ph.D. Degree
shall not be considered as teaching/
research experience to be claimed for
appointment to the teaching positions.
4 All. Ms. Priti Upadhyay Vs. Banaras Hindu University & Ors.
347
Further the period of active service spent
on
pursuing
Research
Degree
simultaneously with teaching assignment
without taking any kind of leave, shall be
counted as teaching experience for the
purpose of direct recruitment/ promotion.
Regular faculty members upto twenty per
cent
of
the
total
faculty
strength
(excluding faculty on medical/maternity
leave) shall be allowed by their respective
institutions to take study leave for
pursuing Ph.D. degree.

3.12 Qualifications:

No person shall be appointed to
the post of University and College teacher,
Librarian
or
Director
of
Physical
Education and Sports, in any university or
in any of institutions including constituent
or affiliated colleges recognised under
clause (f) of Section 2 of the University
Grants commission Act, 1956 or in an
institution deemed to be a University
under Section 3 of the said Act if such
person does not fulfil the requirements as
to the qualifications for the appropriate
post as provided in the Schedule 1 of these
Regulations.

4.0 Direct Recruitment

4.1 For the Disciplines of Arts,
Commerce, Humanities, Education, Law,
Social Sciences, Sciences, Languages,
Library Science, Physical Education, and
Journalism & Mass Communication.

I. Assistant Professor:

Eligibility (A or B):

A.

i) A Master's degree with 55%
marks (or an equivalent grade in a point
scale wherever the grading system is
followed) in a concerned/relevant/allied
subject from an Indian University, or an
equivalent degree from an accredited
foreign university.

ii) Besides fulfilling the above
qualifications, the candidate must have
cleared the National Eligibility Test (NET)
conducted by the UGC or the CSIR, or a
similar test accredited by the UGC, like
SLET/SET or who are or have been
awarded a Ph. D. Degree in accordance
with the University Grants Commission
(Minimum Standards and Procedure for
Awant
of
M.Phil
Ph.D.
Degree)
Regulations 2009 or 2016 and their
amendments from time to time as the case
may be exempted from NET/SLET/SET:

Provided,
the
candidates
registered for the Ph.D. programme prior
to July 11, 2009, shall be governed by the
provisions
of
the
then
existing
Ordinances/Bye-laws/ Regulations of the
Institution awarding the degree and such
Ph.D. candidates shall be exempted from
the requirement of NET/SLET/SET for
recruitment and appointemnt of Assistant
Professor
or
equivalent
positions
in
Universities/ Colleges/ Institutions subject
to
the
fulfillment
of
the
following
conditions:

a) The Ph.D. degree of the
candidate has been awarded in a regular
mode;

b) The Ph.D. thesis has been
evaluated
by
at
least
two
external
examiners;

c) An open Ph.D. viva voce of the
candidate has been conducted:

d) The Candidate has published
two research papers from his/her Ph.D.
work, out of which at least one is in a
refereed journal;

e) The candidate has presented at
least two papers based on hischer Ph.D
work
in
conferences/seminars
sponsored/funded/supported
by
the
UGC/ICSSR/ CSIR or any similar agency.

The fulfilment of these conditions
it to be certified by the Registrar or the
Dean (Academic Affairs) d the University
concerned.
348 INDIAN LAW REPORTS ALLAHABAD SERIES

NET/SLET/SET shall also not be
required for such Master's Programmes in
disciplines for which NET/SLET/SET is
not conducted by the UGC, CSIR or
similar test accredited by the UGC, like
SLET/SET.

5. A conjoint reading of the
provisions as quoted above, minimum
qualification that a candidate must
possess to be appointed as Assistant
Professor
for
all
Universities
and
Colleges in various disciplines including
Agriculture. All Universities have to
follow
the
minimum
qualification
prescribed for.

6. The recruitment has to be made
by advertisement the vacancy on All
India basis and then selection has to be
hold by a duly selected Committee
constituted as per provisions made under
the regulation. A candidate must possess
minimum 55% marks both on Bachelor's
Level and Master's Level subject to
relaxation of 5%, if one holds a Ph.D.
degree, but most have obtained Master's
degree
prior
to
19.09.1991.
Broad
disciplines
are
Arts,
Commerce,
Humanities,
Education,
Law,
Social
Sciences, Sciences, Languages, Library
Science,
Physical
Education
and
Journalism & Mass Communication.
Agriculture would equally be a discipline
governed under the Regulations. For the
post of Assistant Professor, one must
have a Master's degree with 55% marks
subject to relaxation applicable under
regulation 3.5. A candidate must have
cleared
National
Eligibility
Test
conducted by UGC or CSIR.

7. Now from the above, two things
are cleared that one must have both
Master's degree and Bachelor's degree
with 55% marks subject to relaxation as
provided to a Ph.D. holder who has done
Master's degree prior to 19.09.1991.

8. The argument, therefore, is that
since Master's degree in the subject in a
concerned relevant or allied is required
under the regulation, whether one has an
Bachelor's degree with four years simple
degree or four years Honor's degree or even
three years degree would not make any
difference
and hence the respondent
University
was
not
justified
in
incorporating the provisions as an essential
qualification
of
four
years
B.Sc.
(Agriculture) or four years B.Sc. (Hons.).

9. This according to learned Advocate
Mr. Sanjeev Singh, appearing for the
petitioner is an additional qualification in
modification to the UGC Regulations and
therefore, are bad. He submits that as per
the Universities own stand vide instruction
no. 3 of the advertisement, the minimum
qualification for appointment of teachers
and other academic staff in the Universities
and Colleges would be same as prescribed
for under UGC Regulations, 2018. He
submits
that
any
additional
quality
parameters in order to promote merit and
quality over and above UGC qualifications
would only be applicable if the candidates
are larger than the number of candidates to
be called for interview as per clause 4 of
the instructions. He therefore, submits that
rule of preferential qualification is only
with a purpose to short list the candidate to
avoid
a
large
number
of
candidate
appearing in which may otherwise affect
the quality in selection, but preferential
qualification is a preferential qualification
and cannot be a minimum eligibility
qualification. He also submits that even the
Ministry of Agriculture, Department of
Agriculture
Research
and
Education,
Government of India, New Delhi vide its
4 All. Ms. Priti Upadhyay Vs. Banaras Hindu University & Ors.
349
letter dated 02.08.2010 had clarified that
UGC Regulations notified on 30.06.2010
providing for minimum qualification for
appointment
of
teachers
and
other
academic
staffs
in
Universities
and
Colleges in the Higher Education and the
norms issued by ICAR shall apply for
teachers in Faculties of Agriculture and
Veterinary Science. He submits that since
the UGC Regulations themselves provide
applicability of norms and regulations
issued by ICAR for tachers in the Faculties
of Agriculture and Veterinary Science, the
ICAR regulations would have prevail had
they been issued independent of the UGC
Regulations in the sense that they provided
different minimum qualification but since
the Ministry of Agriculture itself decided to
endorse the UGC regulations, 2018 and
directed it to be adopted by the State
Agriculture Universities, this only would
be applied.

10.

Countering
the
aforesaid
submissions, learned Advocate appearing
for the University Ms. Pooja Agarwal has
argued that since post is Agriculture
specific dealing with Agriculture Science,
the University is justified in providing four
years B.Sc. Course/ four years B.Sc.
(Hons.) also along with M.Sc. (Agriculture)
as a minimum qualification to promote
merit and quality in the department of
Agriculture in the Department of Genetics
and Plant Reading relating to Agriculture
Science. Ms. Pooja Agarwal submitted that
even previously when the advertisement
was published, the same qualification was
prescribed and since there is a uniform
pattern brought in the four years Bachelor's
course now almost in All India basis, the
employer correctly thought in its wisdom to
provide it also as a minimum qualification.
Ms. Pooja Agarwal has submitted that
UGC prescribes for minimum qualification
and does not bar to the employer from
providing additional qualification or a
higher
qualification.
The
four
years
Agriculture Undergraduate degree course
or four years Honor's course is only an
additional qualification to the minimum
qualification prescribed for and it cannot be
said to be modifying the minimum
qualification. She argued that the minimum
qualification is a concept for laying down a
bottom line and therefore, this parameter
cannot be relaxed. She submitted that the
UGC Guidelines that ask for a Bachelor's
degree with 55% marks is sufficient to
demonstrate
that
one
must
possess
Bachelor's degree. Now to provide a
particular
Bachelor's
degree
with
a
particular standard and course cannot be
said to be modifying the minimum
qualification nor can it be said to be
transgressing in any manner the authority
of the UGC. She argued that had it been a
case that University required less than 55%
marks in Bachelor's level, it could have
been said that University modified the
minimum qualification but at the same time
the University could have asked for a
higher percentage of marks.

11. Meeting the argument relating to
the letter dated 02.08.2010 issued by the
Ministry of Agriculture, Department of
Agriculture
Research
and
Education,
Government of India, New Delhi it is
sought to be urged that this did not dilute
the argument advanced by her either. She
argued that the minimum qualification
under the UGC Regulations have been
accepted by the University and merely the
University prescribes for four years course
as a course one must have passed through
or four years Honor's does not amount to
modifying the minimum qualification.
Since UGC itself provides 55% marks in
the Bachelor's degree that a candidate must
350 INDIAN LAW REPORTS ALLAHABAD SERIES
have, the University could have been
provided equally whether to four years
Agriculture Course or four years (Hons.)
course. It was also argued by Ms. Pooja
Agarwal that providing a qualification falls
within the domain of the employer either
by way of additional qualification or
preferential qualification. The minimum
standards and norms if are fixed by UGC,
any enhancement thereof cannot be said to
be in transgression of the authority vested
in the employer. It was argued that the
University was in a best position to assess
its
requirement
and
to
prescribed
qualification to suit that and therefore, this
Court may not embark upon an inquiry as
to the qualification prescribed by the
University. She relied upon the authority of
Supreme Court in the case of Dr.
Thingujam Achouba Singh and Others
v.
Dr.H.N.Nabachandra
Singh
and
Others, (2020) 20 SCC 312.

12. Sri Sudhanshu Srivastava, learned
counsel appearing for Indian Council of
Agricultural Research has adopted the
arguments of Ms. Pooja Agarwal in
defending the advertisement.

13. Having heard learned counsel for
the respective parties and their arguments
raised across the bar and having perused
the records, I find that the UGC vide its
regulation no. 3.4 provides that one must
have a Bachelor's degree with 55% marks
and there can be relaxation upto 5%,
meaning thereby, one must have both
Bachelor's degree and Master's degree.
Now whether one has a Bachelor's degree
in a particular subject relating to the
discipline in which the appointment is
sought to be made or in some other
discipline shall fall within the domain of
the employer to determine. An employer
can ask for four years Honor's degree in a
particular subject or four years ordinary
bachelor degree in particular subject or a
three years' Bachelor degree in particular
subject or related subject. If the University
in the discipline of Agriculture like in the
present case Plant Breeding and Genetics,
wants to prescribe for a particular Bachelor
degree with a particular course and if it
provided for B.Sc. With four years course/
B. Sc. four years Honor's course, it cannot
be said that this being not the minimum
qualification required, the University has
modified
the
minimum
qualification
against
the
UGC
Regulations.
The
minimum qualification is still the Master's
degree in the discipline concerned which a
candidate must possess to in order to
provide a suitable candidate to the
particular subject of Agriculture discipline
and if the University wants that one should
have Bachelor's degree also of Agriculture
Science like B.Sc. (Agriculture) with four
year's course or B.Sc. four year's Honor's
course, it cannot be said that it had in any
manner provided an additional qualification
only with a purpose to short list the
candidates.

14. The University running courses in
agriculture can of course, besides M.Sc.
(Agriculture)
can
ask
for
B.Sc.
(Agriculture)
at
the
same
time
as
Bachelor's
degree
is
also
required.
Petitioner, who is B.Sc. (Biology) can not
complain against requirement of B.Sc.
(Agriculture) 4 years' course. It is sole
discretion of employer to ask for a
qualification in a particular discipline but
of course cannot ask for lesser qualification
as minimum qualification contrary to the
U.G.C. regulations.

15. In State of Tamilnadu &
Another v. S.V. Bratheep (minor) &
Others, (2004) 4 SCC 513 while dealing in
4 All. Ms. Priti Upadhyay Vs. Banaras Hindu University & Ors.
351
the matter of prescribed qualification by
AICTE and the scope of University
prescribing qualification for admission in
Engineering Colleges the Court held that
the State once prescribes a qualification
for having secured certain percentage of
marks in the related subjects which were
higher than the minimum qualifying
marks examination in order to be eligible
for admission, the Court held that if the
higher minimum marks is prescribed by
the
State
Government
in
common
entrance than what was the prescribed by
AICTE for admission in Engineering
Colleges, it could not be faulted with as it
would be permissible for the State
Government
to
prescribed
higher
qualification. The Court has held in that
case that if the AICTE provided for
certain marks to be obtained in the
qualifying examination, then if the State
Government prescribes certain higher
marks in the Common Entrance Test
which would be higher than the minimum
in
the
qualifying
examination
to
participate in the Common Entrance Test
it would though be in addition to the
Common Entrance Test and would not be
contrary to what was prescribed by the
AICTE but would be complementary and
supplementary. The Court in this case
had relied upon the judgment of Supreme
Court in the case of Maharasthra Public
Services
Commission
v.
Sandeep
Sriram Varade and others (2019) 6
SCC 362 and in the case of P.U. Joshi
and others v. Accountant General,
Ahmedabad & Others (2003) 2 SCC
632 wherein it was held that the High
Court
under
Article
226
of
the
Constitution cannot exercise a judicial
review to inquire into the validity of the
qualifications prescribed for and to
modify the requisite qualification. Four
years B.Sc. Agriculture Course or four
years B.Sc. Agriculture (Hons.) will rest
upon the discretion of the employer as
employer would be in better position to go
ahead with the particular degree course to
suit the requirement to ensure quality in
teaching and other academic activities in
the department concerned.

16. In the case of Dr. Thingujam
Achouba Singh (supra) the court vide
paragraph no. 16 has observed thus:

"16. So far as relaxation of upper
age limit, as sought by the petitioners in
one of the writ petitions is concerned, High
Court has directed the competent authority
and Executive Council of the Society to
consider for providing such relaxation
clause. We fail to understand as to how
such direction can be given by the High
Court for providing a relaxation which is
not notified in the advertisement. While it is
open for the employer to notify such
criteria for relaxation when sufficient
candidates are not available, at the same
time nobody can claim such relaxation as a
matter of right. The eligibility criteria will
be within the domain of the employer and
no candidate can seek as a matter of right,
to provide relaxation clause."

17. In the circumstances, therefore,
the decision taken by the Policy and
Planning
Committee
(Institute
of
Agriculture Sciences) in its meeting held
on 29.03.2023 providing for four years
B.Sc.
(Agriculture)/
B.Sc.
(Hons.)
(Agriculture)/
B.Sc.
(Horticulture)
in
respect of the departments with various sub
disciplines of discipline of agriculture
including the department of Genetics and
Plant Reading cannot be said to be
erroneous one and in access of the authority
nor it can be said to be in any manner
modifying the minimum qualification so as
352 INDIAN LAW REPORTS ALLAHABAD SERIES
to further pull it down by way of minimum
qualification
which
the
UGC
had
prescribed for.

18. No pleading has been raised in the
entire writ petition that the petitioner has
the same standard of learning in B.Sc.
(Biology) as provided and prescribed under
the four years B.Sc. (Agriculture)/ four
years B.Sc.(Hons.). All that is pleaded is
that
since
minimum
qualification
prescribed by UGC is only M.Sc. in the
concerned subject/ allied subject from an
Indian University whether one is B.Sc.
(Agriculture) or otherwise in any other
discipline would be entitled.

19. Writ petition fails and is
accordingly dismissed.
----------
(2024) 4 ILRA 352
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

Writ A No. 12307 of 2019

Shashi Kant Tiwari ...Petitioner
Versus
High Court of Judicature at Allahabad &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Sushil Kumar Shukla, Sri Shashi Kant
Shukla

Counsel for the Respondents:
Sri Ashish Mishra

Service Law - U.P. Higher Judicial Service
Rules, 1975 - Rule 5(c) - Direct Recruitment
to Higher Judicial Service (HJS) - Eligibility -
Continuous Practice as Advocate - Shashi Kant
Tiwari Vs High Court of Judicature at Allahabad,
Writ A No. 12307 of 2019 - Petitioner challenged
rejection order (08.05.2019) of his candidature
for U.P. HJS Examination 2016, claiming
inclusion in the final select list. Petitioner,
registered as an advocate since 16.11.1998, was
in full-time employment as Law Officer with
Alliance Builders and Contractors Ltd. from
15.01.2009 to 01.02.2010, which interrupted his
continuous practice. Per Article 233(2) of the
Constitution and Rule 5(c), a candidate must
have 7 years of continuous practice as an
advocate immediately preceding the application
cut-off date (18.06.2016). Supreme Court's
rulings in Deepak Aggarwal Vs Keshav Kaushik,
(2013) 5 SCC 277, and Dheeraj Mor Vs High
Court of Delhi, (2020) 7 SCC 401, mandate
continuous practice as an advocate, excluding
periods of full-time employment except for
public prosecutors or government pleaders
acting predominantly as advocates. Petitioner's
employment terms prohibited engaging with
other clients, and his practice from 01.02.2010
to 18.06.2016 amounted to only 6 years, 4
months, and 17 days, falling short of the
required 7 years. Claim of filing vakalatnamas
for other clients during employment not
considered, as it was potentially in violation of
Bar Council of India Rules 43 and 49 and
employment
terms.
A
belated
letter
(19.01.2009) permitting practice with other
clients, raised for the first time, was not relied
upon. Petitioner's higher marks (471) compared
to the last selected candidate (455) irrelevant
due to ineligibility. Resolution of Selection and
Appointment Committee (17.05.2017) upheld,
finding no infirmity. (Paras 5-24)

Writ Petition Dismissed.

List of Cases cited:

1. Deepak Aggarwal Vs Keshav Kaushik, (2013)
5 SCC 277 (Paras 5, 9, 12, 14, 15, 18)

2. Dheeraj Mor Vs High Court of Delhi, (2020) 7
SCC 401 (Paras 9, 13, 18)

3. Rameshwar Dayal Vs St. of Punj., AIR 1961
SC 816 (Paras 16, 18)

4. Chandra Mohan Vs St. of U.P., AIR 1966 SC
1987 (Paras 13, 16)