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Gauhati High Court · body

2010 DIGILAW 612 (GAU)

Leena B. Dam v. State of Assam

2010-08-19

HRISHIKESH ROY, MADAN B.LOKUR

body2010
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. S.S. Dey, learned Counsel appearing for the Appellant (writ Petitioner). Mr. V.M. Thomas, learned Standing Counsel for the Education Department appears for Respondents 1 & 2. The Respondents 3, 4 & 5 are represented by Mr. B. Chakraborty. None appears for the private Respondent. RELEVANT FACTS 2. In pursuant to the advertisement dated 14.2.2004 issued by the Gauhati Commerce College (hereinafter referred to as "the College") for filling up, inter alia, two posts of lecturer in Accountancy and Commerce, the Appellant and the Respondent No. 6 along with others offered their candidature. Thereafter selections were held and the private Respondent No. 7 Dr. Pranjit Kumar Nath was placed at Sl. No. 1 in the Select List whereas the writ Petitioner was placed at Sl. No. 2. The Governing Body of the College approved the recommendation of the Selection Committee and sought approval of the Director of Higher Education (DHE) for giving appointment to the selected candidates. At that stage, the selection of the private Respondent was assailed through WP(C) No. 5962/2004 filed by the present Appellant and WP(C) No. 6898/04 filed by another writ Petitioner. 3. The writ Petitioners contended that in the advertisement dated 14.2.2004 latest UGC norms and State Government Rules were prescribed as essential qualification and clearance of National Eligibility Test (NET) or State Level Eligibility Test (SLET) are prescribed as mandatory conditions by the UGC and the Government for appointment of lecturer. As the private Respondent No. 7 didn't possess either the NET or SLET qualification, he is not eligible to be considered for appointment as a lecturer and accordingly could not have been recommended for by the Selecting Authority. It was also contended that the private Respondent on the basis of his Ph.D. obtained on 9.8.2000 was considered eligible, without clearing the NET/SLET test, on the strength of exemption granted by the University Grants Commission (UGC). Therefore when the private Respondent by virtue of his Ph.D. Degree secured a right for consideration of his candidature, the same Ph.D. degree can't be used a second time for securing 10 marks in the evaluation. The writ Petitioner urged that she too deserved to be given additional 10 marks for the NET qualification, as no specific marks is awardable for NET. The writ Petitioner urged that she too deserved to be given additional 10 marks for the NET qualification, as no specific marks is awardable for NET. The Respondents supported the selection by contending that candidates were evaluated by following selection criterion notified by the Government on 20.2.2003 and the private Respondent was recommended at merit position 1 through an entirely transparent procedure. 4.1 On an elaborate consideration of the rival submissions, the learned Single Judge held that the eligibility requirement of clearing NET has been exempted for Ph.D. degree holders by the UGC and the State Government. The Court also recorded that since the UGC's policy was found to be reasonable and have been approved by the Supreme Court in the case of UGC v. Sadhana Choudhury (1996) 10 SCC 536 the contention of the Appellant/writ Petitioner were not tenable. 4.2 In so far as the claim of equal marks for NET as for the Ph.D., the Court considered the same to be unjustified as the Notification of 20.2.2003 prescribing the marks to be awarded for academic achievements including Ph.D., was not under challenge in the writ proceedings. 4.3 However, the participation of the then In charge Principal (Respondent No. 6) of the College in the selection process of his relative was found to have vitiated selection held on 13.8.2004 and accordingly direction was issued to conduct a fresh selection by a competent Selection Committee. A fresh exercise was then carried out and this point of selection, being vitiated through bias is not urged by the Appellant at this stage. SUBMISSIONS 5.1 Mr. S.S. Dey, learned Counsel for the Appellant (writ Petitioner) submits that since the eligibility criteria have been prescribed earlier through the advertisement dated 14.2.2004, the exemption subsequently granted by the UGC and notified by the Assam Government on 28.10.2004 (Annexure-5), shouldn't enable consideration of the candidature of the private Respondent without the NET/SLET qualification as these qualifications are compulsory requirement for applying for the post of lecturers. 5.2 It is further contended that on the basis of a Ph.D. degree, double benefit cannot be claimed by a candidate and if the essential eligibility qualification of NET/SLET is exempted for Ph.D. degree holders, such candidate should not be granted a second benefit because of the Ph.D. degree, by awarding of 10 marks in the evaluation process as has been prescribed in the Government selection guidelines of 20.2.2003. 5.3 Mr. Dey also submits that in the writ petition i.e. WP(C) No. 3373/2005 filed subsequently, the marking pattern stipulated through Notification dated 20.2.2003 for allotment of 10 marks for Ph.D. degree holders are being challenged to provide equal opportunity for candidates with NET/SLET vis-a-vis those having Ph.D. degree without NET/SLET qualification. 6. Countering the arguments of the Appellant, it is submitted by Mr. V.M. Thomas, learned Standing Counsel as well Mr. B. Chakraborty, learned Counsel for the College Authorities that the exemption from NET/SLET eligibility requirement for those who have submitted Ph.D. thesis on or before 31.12.2002 was notified by the UGC on 31.7.2002 and the said decision of the UGC have been adopted by the Government through Notification dated 21.12.2002, well ahead of the advertisement issued by the College on 14.2.2004. It is pointed out that the private Respondent had obtained his Ph.D. degree on 9.8.2000 and was therefore exempted from the requirement of NET/SLET qualification on the date of the advertisement and under such circumstances the private Respondent cannot be considered ineligible for being considered for appointment. 7. In so far as the prescription of 10 marks to be granted for Ph. D.1 degree holders, it is pointed out that in the Government selection guidelines notified on 20.2.2003, objective criteria have been prescribed for awarding of marks for the qualification and performance of candidates in different examinations such as, HSLC, H.S. Graduation, Post Graduation, M. Phil and Ph.D. and also for publication of research papers. Since prescription of marks in the guidelines ensure that the selecting body follows an uniform and transparent criterion, no discrimination can be alleged by any candidate, who does not possess any the prescribed qualification. It is further submitted that since no marks are prescribed for NET/SLET, which is only an eligibility qualification (with exemption for Ph.D. degree holders), there can be no legal basis for claiming marks for the NET/SLET qualification. CONCLUSION 8. We have considered the submissions made by the rival counsels. We find from the Notification dated 21.12.2002 issued by the Secretary to the Government of Assam, Education (H) Department that the Ph.D. degree holders were exempted from the condition of eligibility i.e., NET clearance through this notification. CONCLUSION 8. We have considered the submissions made by the rival counsels. We find from the Notification dated 21.12.2002 issued by the Secretary to the Government of Assam, Education (H) Department that the Ph.D. degree holders were exempted from the condition of eligibility i.e., NET clearance through this notification. This exemption notification of the Government was preceded by the UGC's exemption notification dated 31.7.2002 and both i.e. the decision by the Government and the UGC were taken before the advertisement was issued on 14.2.2004. Therefore on the date of the advertisement, a Ph.D. degree holder without NET/SLET qualification was eligible for appointment. The later Government Notification dated 28.2.2004 referred to by the Appellant is only a reiteration of the earlier declaration. Therefore we are of the considered opinion that the learned Single Judge rightly held that with his Ph.D. qualification, the private Respondent is eligible for being considered for appointment as a lecturer. 9. When a person's candidature is found eligible because of exemption granted which have been declared as reasonable by the Supreme Court, it would be inappropriate in our view to hold that Ph.D. degree holder shouldn't be given any credit for such qualification since evaluation is to made on the academic achievements/performance of the candidates. The selection process in our considered view lays down a transparent and objective norms of selection and it would not be correct to deny 10 marks for a Ph.D. degree holder, merely because the said degree also enables a candidate to be considered eligible even without NET/SLET degree, for appointment as lecturer. 10. Anybody who makes a legitimate entry in the fray by virtue of a Ph.D. degree, ought not to be denied the credit of marks for his high academic achievement because if such contention is accepted, the value of the Ph.D. degree would be greatly undermined. 11. We further find that NET has been prescribed as a general qualification criteria and all candidates are expected to meet the NET/SLET eligibility qualification. Therefore not providing any special credit by way of marks for NET, cannot be considered to be unreasonable, merely because a special exemption from NET/SLET qualification is granted for Ph.D. degree holders. 12. 11. We further find that NET has been prescribed as a general qualification criteria and all candidates are expected to meet the NET/SLET eligibility qualification. Therefore not providing any special credit by way of marks for NET, cannot be considered to be unreasonable, merely because a special exemption from NET/SLET qualification is granted for Ph.D. degree holders. 12. It is clear that a policy decision was taken by the UGC which is a specialized statutory body whereby Ph.D. degree holders have been exempted from the requirement of NET and this policy decision has received the approval of the Apex Court in Sadhana Choudhury (supra). Therefore this Court sees no reason to interfere with the impugned decision to grant exemption from NET qualification for the Ph.D. degree holders. For selecting lecturers, the academic achievements are of paramount consideration and considering the onerous process of obtaining a Ph.D. degree, there is no justification for not awarding credit against a Ph.D. degree, recognized universally as a scholarly achievements of highest order. A Ph.D. qualified candidate is expected to have in depth knowledge of his subject and also the creativity and capacity to undertake higher research in the subject. 13. We are also of the opinion that a Ph.D. degree cannot be equated with NET and similar marks cannot be claimed for NET, which has no other utility but to make a person eligible to apply for a post of lecturer. The guidelines issued by the Assam Government on 20.2.2003 prescribing the criterion for evaluation of candidates on a scale of 100 marks is an objective process where 65 marks are earmarked for academics and Ph.D. degree being an academic achievement of the highest order, the same cannot be equated with a NET qualification which is only an eligibility test conducted by the UGC or SLET Commission. 14. For the foregoing reasons we see no merit in this Appeal and hold that the learned Single Judge committed no error in dismissing the Writ Petition of the Appellant. Accordingly the Appeal stands dismissed without any order on cost. Appeal dismissed