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Uttarakhand High Court · body

2014 DIGILAW 290 (UTT)

DAYA SHANKER v. GURUKUL KANGRI UNIVERSITY

2014-08-05

K.M.JOSEPH, V.K.BIST

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JUDGMENT K.M. Joseph, C. J. (Oral) Petitioner has approached this Court with a complaint that the University has issued an Advertisement (Annexure No. 5) seeking to fill-up teaching posts in various subjects / departments for the Session 2012-2013 with the following objectionable provisos in regard to the posts of Assistant Professor (For Arts, Humanities, Sciences Discipline): “Provided further that, the candidates who have acquired Ph.D. degree up to June 30, 2009 shall also be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment as Assistant Professor or equivalent positions in the Vishwavidyalaya. Provided further that those candidates who have been enrolled for Ph.D. up to June 30, 2009 and awarded Ph.D. degree shall become eligible for exemption from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment to the posts of Assistant Professor or equivalent positions in the Vishwavidyalaya.” 2. According to the petitioner, he is fully qualified. The qualification for the post of Assistant Professor is as provided by the University Grants Commission. Our attention was invited to the following qualifications, which are found in Annexure No. 1: “4.4.0 ASSISTANT PROFESSOR 4.4.1 Arts, Humanities, Sciences, Social Sciences, Commerce, Education, Languages, Law, Journalism and Mass Communication i. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent 2 grade in a point scale wherever grading system is followed) at the Master’s Degree level in a relevant 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, CSIR or similar test accredited by the UGC like SLET/SET. iii. Notwithstanding anything contained in sub-clauses (i) and (ii) to this Clause 4.4.1, candidates, who are, or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions. iv. NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted.” 3. iv. NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted.” 3. Petitioner would draw our attention, firstly, to Clause 3.3.1 of Annexure No. 1, which purports to be the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010. The said Clause is as follows: “3.3.1 NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities / Colleges / Institutions. Provided, however, that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities / Colleges / Institutions.” 4. Thereafter, petitioner refers to Clause 4.4.1, which we have already referred. According to him, the impugned provisos in the Advertisement (Annexure No. 5) issued by the University are clearly against the Regulations issued by the University Grants Commission. He also drew our attention to the letter issued by the University Grants Commission to the University (Annexure No. 3), where it has, inter alia, stated as follows: “This is to further inform you that in terms of the provisions of the UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) 3rd Amendment Regulations, 2009, the commission has initiated the process of identifying candidates of various institutions, who have been awarded Ph.D. Degree in compliance of the provisions of the UGC (Minimum Standards and Procedure for Awards of M. Phil / Ph.D. Degree) Regulations, 2009, so as to exempt them from the requirement of minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in various universities, colleges and institutions. However, since the above process is likely to take time, therefore, keeping in view the public interest and the interest of students at large in expediting the filling up of various vacant positions of Assistant Professor or equivalent positions in various universities, colleges and institutions, the Commission has decided, as an ad-hoc measure, to leave it to the concerned universities, colleges and institutions to decide as to whether the Degree of Ph.D. awarded to various candidates is in compliance of the provisions of UGC (Minimum Standards and Procedure for Awards of M.Phil/Ph.D. Degree), Regulations, 2009, so as to exempt them from the requirement of minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in their universities, colleges and institutions. It is also hereby clarified that where the admission at the M.Phil. has been through an entrance examination and course work has been prescribed at the M.Phil. level, such M.Phil. candidates when admitted to the Ph.D. programmes shall not be required to undertake entrance examination or course work and it shall be considered to have complied with the UGC (Minimum Standards and Procedure for award M.Phil. / Ph.D. Degree) Regulation, 2009 subject to the specific compliance of other requirements of the said Regulation and particularly the provisions as contained in Regulation 9 and Regulation 13 to 18 thereof. In other cases, where a candidate has done M.Phil. from one university and moves to another university for Ph.D., the new university may give credit and exempt for the course work done in the previous university. However, such a candidate will have to appear in the entrance test as applicable to a fresh candidate directly joining Ph.D. The above procedure will apply in case of those candidates who have also obtained Ph.D. degree from abroad. This is to further inform that those presently working as teachers in ad-hoc capacity but are not NET qualified shall be given a time period of two years (i.e. four attempts at NET) to qualify in the NET/SLET and during this period of time of two years, colleges and universities may not fill teaching posts presently held by them on ad hoc basis on regular basis.” 5. Petitioner would point out that, as far as the first proviso in the Advertisement issued by the University is concerned, it is in keeping with the UGC Regulations. Petitioner would point out that, as far as the first proviso in the Advertisement issued by the University is concerned, it is in keeping with the UGC Regulations. This is for the reason that the proviso is in conformity with the requirement that the candidates, who have obtained Ph.D. in compliance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, are exempted from the requirement of minimum eligibility condition of NET / SLET for appointment as Assistant Professors. But, the petitioner would point out that the further provisos, which have been taken exception to, are clearly opposite to the UGC Regulations. It is contended that the petitioner is doing work for 6 to 7 years in the University and, instead of selecting him, in order to accommodate certain others, it is that the impugned provisos have been inserted in the Advertisement by the University. 6. Per contra, the learned counsel appearing on behalf of the University would contend, firstly, that the petitioner himself is clearly not qualified. To substantiate the same, he drew our attention to the provisions relating to qualifications, which we have already extracted hereinbefore and it is submitted that the petitioner does not have a “good academic record”, as provided in the Regulations. According to him, not only must a candidate have at least 55% marks or equivalent grade at the Masters’ Graduate level in the relevant subject from an Indian University; but he must have a “good academic record”, as defined by the concerned University. The University in question has defined “good academic record” in the Advertisement, which reads as follows: “Criteria of Good Academic Record i. The candidate has passed Master’s degree as per the eligibility criterion prescribed by UGC/AICTE/NCTE/PCI, 5 ii. The candidate has obtained minimum 50% marks in aggregate at the Graduation level. iii. The candidate has passed High School (10th) and Intermediate (12th) examinations with minimum 45% marks in aggregate. iv. The candidate has passed all the examinations from High School or equivalent to higher examinations with minimum second division. In case where division is not mentioned, 45% and above marks obtained shall be treated as second division and 60% and above marks obtained shall be treated as first division. iv. The candidate has passed all the examinations from High School or equivalent to higher examinations with minimum second division. In case where division is not mentioned, 45% and above marks obtained shall be treated as second division and 60% and above marks obtained shall be treated as first division. In case of SC/ST/PWD candidates there shall be a relaxation of 5% marks in the restriction of minimum marks in all the points from (i) to (iv) mentioned above.” 7. He would submit that, admittedly, the petitioner does not fulfill the criteria, which are provided under the heading “Criteria of Good Academic Record”, as he has passed the intermediate examination with less than 45%. He would also contend before us that the impugned clauses are supportable. In this regard, he drew our attention to the following decision, which the University Grants Commission, itself, took: “(iii) The Commission further resolved that since both the above mentioned Regulations are prospective and not retrospective in nature, therefore, all candidates having M.Phil degree on or before 10th July 2009 shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer / Assistant Professor. Further, all candidates who have either obtained Ph.D. degree on or before 31st December, 2009 and such candidates who had registered themselves for Ph.D degree on or before 31st December, 2009 and are subsequently awarded Ph.D degree shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer / Assistant Professor. 8. He would, therefore, contend that it is in conformity with the said resolution. He also drew our attention to Annexure No. 3 of the rejoinder affidavit, “Minutes of the 472nd Meeting of the University Grants Commission held on 27th September, 2010, wherein the Commission, inter alia, decided as follows: “The Commission further resolved that since both the above mentioned Regulations are prospective and not retrospective in nature, therefore, all candidates having M.Phil degree on or before 10th July, 2009 shall remain exempted from the requirement of NET for the purpose of appointment as lecturer / Assistant Professor. Further, all candidates who have either obtained Ph.D degree on or before 31st December, 2009 and candidates who had registered themselves for Ph.D degree on or before 10th July, 2009 and are subsequently awarded Ph.D degree, shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer / Assistant Professor. Further, all candidates who have either obtained Ph.D degree on or before 31st December, 2009 and candidates who had registered themselves for Ph.D degree on or before 10th July, 2009 and are subsequently awarded Ph.D degree, shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer / Assistant Professor. With the above modification the minutes were confirmed” 9. In reply to this, the learned counsel for the petitioner drew our attention to Section 26 of the University Grants Commission Act, 1956 (hereinafter referred to as the “Act”). He would submit that it is not open to the learned counsel for the University to draw support from this resolution to overturn a statutory Regulation. University Grants Commission can make Regulations, as contemplated in Section 26 of the Act, which must be gazetted. Furthermore, he drew our attention to Section 26(2) for the proposition that it must be with the previous approval of the Central Government that a Regulation can be made. This has not happened in this case and, what is more, when the decision of the University Grants Commission was conveyed to the Central Government, the Central Government conveyed its inability to agree with the proposals of the University Grants Commission, which means that the Central Government must be treated as having decided against the view of the University Grants Commission. He drew our attention to Section 20 of the Act, which, inter alia, reads as follows: “20. (1) In the discharge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government. (2) If any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final.” 10. He would, therefore, contend that this being a matter governed by Section 20 of the Act, as the Central Government has held on to subject by its communication, it must be treated that the decision of the Central Government being binding under Section 20; the resolutions, which are relied by the University, cannot be of any avail. He would, therefore, contend that this being a matter governed by Section 20 of the Act, as the Central Government has held on to subject by its communication, it must be treated that the decision of the Central Government being binding under Section 20; the resolutions, which are relied by the University, cannot be of any avail. He also submits that the question has been considered by the Delhi High Court and the Delhi High Court has taken the view that it is the Regulation, which would govern, and the resolutions cannot assist the University Grants Commission to claim to override the statutory regulation. 11. Per contra, the learned counsel for the University would draw our attention to the judgment of the Allahabad High Court, wherein the judgment of the Delhi High Court has been considered. 12. Learned counsel for the petitioner also drew our attention to the decision of the University Grants Commission (Annexure No. 3 of the rejoinder affidavit), wherein it is, inter alia, stated as follows: “i) All those who were admitted for the Ph.D. degree prior to 11th July, 2009 would be exempted from NET requirement only if they satisfy 6 out of the 10 criteria laid down for admission to Ph.D. outlined in the UGC (Minimum Standards and Procedure for Awards of M.Phil./Ph.D. Degree) Regulations, 2009 as framed by the UGC Standing Committee on Ph.D. Regulations 2009. These would be verified at the University level for compliance of these criteria as per the Commission recommendation communicated already in letter No. 1-1/2002(PS)/Pt.F-III dated 27th August, 2009.” 13. Therefore, he would contend that, unless and until the candidates pass Master’s with reference to six out of 10 criteria, no reliance could be placed on their being in possession of Ph.D. To this, the learned counsel for the University would contend that this is a matter, which would be relevant only at a latter stage. 14. This writ petition is purportedly a private interest litigation of an adversarial nature between the petitioner, who is a candidate who has applied pursuant to the Advertisement, and the University. This is not a Public Interest Litigation. If it is a Public Interest Litigation, it would be an inquisitorial proceeding. This is a litigation, where we are called upon to adjudge upon the rights of the parties. This is not a Public Interest Litigation. If it is a Public Interest Litigation, it would be an inquisitorial proceeding. This is a litigation, where we are called upon to adjudge upon the rights of the parties. There is no case for the petitioner that the present litigation is a Public Interest Litigation. If that be so, we would have to, first of all, examine whether the petitioner has got a case for being considered on merits. This means, whether the petitioner could, prima facie, show that the petitioner was qualified to be considered for selection as an Assistant Professor? 15. Undoubtedly, petitioner has passed NET in the concerned subject. He also claims to have a Ph.D. degree. Admittedly, petitioner has not acquired the requisite percentage of marks, which is 45 per cent at the Intermediate level. Going by his own reasoning and applying it to his own qualifications, he does not possess good academic record. “Good academic record” is left to be defined by the concerned University. The only limitation is that, as far as the academic record at the Post Graduate level is concerned, the University Grants Commission has, itself, expressed the requirement of 55 per cent. As far as the other courses prior to the Post Graduate level are concerned, it is to be decided by the University. The University has defined it in the Advertisement. There is no case for the petitioner that the petitioner has such “good academic record”. Petitioner cannot be said to have “good academic record”, as defined by the University, in view of his not having 45 per cent marks at the Intermediate level. If that is so, petitioner himself is clearly not qualified. We would think that the entire effort on his part to attempt to persuade us to interfere with the impugned provisos in the Advertisement should not be accepted by us, as it would then be converting the litigation, which is adversarial, into a Public Interest Litigation. At the end of the litigation, petitioner is certainly not going to gain, as his academic record will remain the same, which falls short of the standards fixed by the University in the Advertisement pursuant to which the petitioner has himself applied. At the end of the litigation, petitioner is certainly not going to gain, as his academic record will remain the same, which falls short of the standards fixed by the University in the Advertisement pursuant to which the petitioner has himself applied. In such circumstances, we would think that the writ petition is liable to be dismissed as meritless on the ground that the petitioner does not possess the qualification going by the norms, which have been projected by the University. We, therefore, do not wish to pronounce on the other issues, which have been raised by the petitioner in regard to the impugned provisos. 16. On the above reasoning, the result, therefore, is inevitable that the writ petition must fail. Accordingly, the writ petition fails and is dismissed. There will be no order as to costs.