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2015 DIGILAW 237 (CAL)

Satarupa Ghosh v. State of West Bengal

2015-03-12

DIPANKAR DATTA

body2015
JUDGMENT : Dipankar Datta, J. The Registrar (Officiating), University of North Bengal (hereafter the NBU) issued an advertisement dated 18.02.2012 reading as follows: "Applications are invited for the post of Assistant Professor 4 posts (Contractual), in the Department of Law, Remuneration @ Rs. 27432/- (may be enhanced further) per month. The candidate must posses a good academic record with at least 55% marks or an equivalent grade of B+ in master degree Law (LL.M.). Besides fulfilling the above qualifications, candidates having NET/SLET/SET qualifications will be preferred. Detailed information and Application Form (Cost Rs. 200/-) may be collected from the Office of the undersigned. Filled in application form must reach the office of the undersigned on or before 10.03.2012. Form may also be downloaded from the university website: http:/www.nbu.ac.in. Advt. No. 47/R-12 Dated: 18.02.2012 Registrar (Officiating)." 2. The petitioner offered her candidature for the post of 'Assistant Professor' in Law by submitting an application within the stipulated date. 3. It appears that the said registrar issued a further advertisement dated 21.09.2014, which reads as follows: "Applications are invited within 13.10.2014 from the Indian citizens for contractual appointment of Full Time/Part Time Assistant Professor (purely on temporary basis) in the Department of Law of the University. (i) Law (Full-Time) - 04, (ii) Political Science (Full - Time) - 01, (iii) English (Part- Time) - 01. Prescribed application form, requisite qualifications, remuneration and other relevant information are available in the University portal http://www.nbu.ac.in Please Note: Candidates who have applied earlier in response to advt. No. 47/R-12 Dated: 18-02-2012 need not apply again. However they may update their C.V. if they so desire. Advt. No. 19/R-14 Registrar Date: 21.09.2014 (Officiating)" 4. The university received applications from 49 aspirants for appointment on the post of 'Assistant Professor' in Law. A broad sheet was prepared indicating therein the marks obtained by the aspirants at various examinations, their respective research and teaching experience, etc. One column related to acquisition of NET/SLET/M.PHIL/PH.D. qualifications. It is noted that although on the date the petitioner submitted her application she had not qualified in the NET Examination, she qualified in such examination by the time the second advertisement dated 21.09.2014 was issued. 5. On the basis of the qualifications and their performance at the interview, the respondents 10 and 11 (Ms. Priya Roy and Shirin Md. Zulfiquar respectively), Smt. Soma Dey Sarkar and Md. 5. On the basis of the qualifications and their performance at the interview, the respondents 10 and 11 (Ms. Priya Roy and Shirin Md. Zulfiquar respectively), Smt. Soma Dey Sarkar and Md. Maazul Haque were selected for appointment as Assistant Professors in Law on contractual basis. It is further noted that Smt. Soma Dey Sarkar and Md. Maazul Haque possess NET qualifications whereas the respondents 10 and 11 lack the same. 6. This writ petition dated 02.02.2015 was presented by the petitioner upon finding that the respondents 10 and 11 have been appointed as Assistant Professors in Law by the NBU on contractual basis although they did not possess NET qualification. The writ petition was admitted on 11.02.2015 and direction for exchange of affidavits was made. Upon exchange of affidavits, the writ petition has been listed today for final hearing. 7. I have heard Mr. Sanyal, learned advocate for the petitioner, Ms. Sarkar, learned advocate for the NBU, Mr. Chakraborty, learned advocate for the respondent No. 10 and Mr. Mukherjee, learned senior advocate for the respondent No. 11 at some length. 8. Before I proceed to decide the contentious issue that has been raised by the petitioner, it would be convenient to note the respective academic qualifications of the respondents 10 and 11, and the petitioner, and the marks obtained by them at the different examinations taken by them. Name Secondary Examination Higher Secondary Examination Graduation Post-Graduation Respondent 10 70.8% 58% 50.13% 60.63% Respondent 11 58.25% 48.10% 55.60% 60.28% Petitioner 77.37% 66.3% 52% 64% 9. Further, from the overall score sheet prepared by the selection committee, it appears as follows: SI No. Name of Candidate Academic Record and Research Performance (50%) Assessment of Domain Knowledge and Teaching Skills (30%) Interview Performance (20%) Total marks 10. Respondent 10 25.7 22 14 61.7 07. Respondent 11 20.2 23 13 56.2 11. Petitioner 25.7 15 06 46.7 10. The NBU in its affidavit-in-opposition has adopted a bold stand that in the matter of contractual appointment of Assistant Professors in universities created by Central/State Acts, no regulations have been framed by the University Grants Commission (hereafter the UGC) regulating appointments and that neither the UGC nor the State Government has prescribed any Rule/Order relating to appointment of contractual teachers by the NBU. 11. This also appears to be the stance of the respondents 10 and 11. 12. Mr. 11. This also appears to be the stance of the respondents 10 and 11. 12. Mr. Sanyal has invited the attention of this Bench to regulation 13.0 of 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) Regulations, 2010. Regulation 13.1 provides as follows: "....................The qualifications and selection procedure for appointing them should be the same as those applicable to a regularly appointed teacher." (emphasis supplied) 13. In terms of the Regulations, the qualifications that are required to be possessed for appointment on regular basis on the post of an Assistant Professor are as follows: "4.4.0 ASSISTANT PROFESSOR 4.4.1. Arts Humanities, Sciences, Social Sciences, Commerce, Education, Language, Law, Journalism and Mass Communication. i. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent 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." 14. It would appear that an aspirant for the post of Assistant Professor in Law, be it in case of a regular appointment or a contractual appointment, must have acquired NET conducted by the UGC or similar institution. According to Mr. Sanyal, apart from Smt. Soma Dey Sarkar and Md. Maazul Haque, none of the other aspirants were NET/SLET qualification holders and, therefore, ought not to have been considered for appointment. 15. Ms. According to Mr. Sanyal, apart from Smt. Soma Dey Sarkar and Md. Maazul Haque, none of the other aspirants were NET/SLET qualification holders and, therefore, ought not to have been considered for appointment. 15. Ms. Sarkar, learned advocate appearing for the NBU, however, referred to the advertisements inviting applications and contended that in terms thereof, NET/SLET were desirable qualifications and that in terms of the Rules of Legal Education (hereafter the Rules) framed by the Bar of Council of India, it is not an essential condition for appointment on the post of Assistant Professor in Law that the candidates must have acquired NET/SLET qualifications. Reference was made to Schedule III of the Rules titled Minimum Infrastructural Facilities required in a Centre of Legal Education for applying for permission to run law courses with affiliation from an Indian University. Attention of the Bench was further drawn to clause 20 thereof which reads as follows: "20. Minimum qualification needed for the Faculty: Full-time faculty members including the Principal of the Centre of Legal Education shall be holders of a Master's degree or as prescribed by UGC or other such standard setting bodies. However, faculty for teaching clinical program may be appointed from the retired judicial officers or from the Bard, a person with professional experience for a minimum period of 10 years. Visiting faculty from the Bar, bench or academy shall have a minimum experience of 10 years." 16. The contents of Schedule III cannot be read divorced from Rule 11 of the Rules. Rule 11, for the facility of reference, reads as follows: "11. Minimum infrastructure Any institution conducting legal education by running either of the law degree courses or both leading to conferment of graduate degree in law on successful completion of the courses shall have minimum standard infrastructure facility stipulated by the Bar Council of India specified in Schedule III of these Rules. The University shall ensure that all its Centres of Legal Education under the University maintain the standard infrastructure and other facilities for the students to suitably impart professional legal studies." 17. Reading of the aforesaid statutory provisions would lead one to the irresistible conclusion that the qualifications that are required to be possessed by a candidate who intends to be appointed as an Assistant Professor in Law are those specified by the UGC as in Rule 4 extracted (supra). Reading of the aforesaid statutory provisions would lead one to the irresistible conclusion that the qualifications that are required to be possessed by a candidate who intends to be appointed as an Assistant Professor in Law are those specified by the UGC as in Rule 4 extracted (supra). Rule 11 of the Rules read with Schedule III, however, cannot be construed, as the relevant provision specifying the qualifications that an Assistant Professor in Law must possess. The provisions of the Rules and the Schedule are meant only for the purpose of grant of recognition of a course of study in a University or a Law Study Centre and recognition would not be denied if the Department of Law of such university or a law study centre does not have a faculty who is NET/SLET qualified. It would be sufficient for the purpose of recognition if the faculty is a master degree holder. However, when it comes to the question of appointment of Assistant Professors from amongst candidates possessing NET/SLET qualifications, the provisions contained in Regulation 4 would provide the guiding light for making appointments and any appointment made in derogation of such Regulations would be contrary to law and as such unsustainable. 18. The argument of Ms. Sarkar that the NBU was bound by the terms of the advertisement is misconceived. Law is well settled that an advertisement for a post cannot mention essential qualifications that the aspirants must possess, which are at variance with statutory regulations. In the unlikely event of such an eventuality, the requirement of the statutory regulations have to be read into the terms of the advertisement and further action taken accordingly. If any reference is required, one may usefully refer to the decisions of the Supreme Court reported in (2006) 9 SCC 507 (Malik Mazhar Sultan v. U.P. Public Service Commission) and (2006) 9 SCC 670 (Indian Institute of Technology v. Paras Nath Tiwari). 19. In the present case, despite the NBU having the petitioner as an aspirant possessing NET qualification, her candidature was overlooked and candidates not possessing such qualifications were preferred. In course of hearing Ms. Sarkar did concede that the provisions contained in Regulation 13 of the Regulations had escaped the notice of the NBU. 19. In the present case, despite the NBU having the petitioner as an aspirant possessing NET qualification, her candidature was overlooked and candidates not possessing such qualifications were preferred. In course of hearing Ms. Sarkar did concede that the provisions contained in Regulation 13 of the Regulations had escaped the notice of the NBU. In view of such position, there can be no doubt that the petitioner was illegally excluded from the zone of consideration and the respondents 10 and 11 were preferred to her despite not having the minimum qualifications for appointment as an Assistant Teacher in Law in terms of the Regulations. 20. This Bench could have ended the judgment here, but having regard to the other contentions raised by Mr. Sanyal with regard to the marks that were awarded to the petitioner as well as the respondents 10 and 11, the need to make certain observations is felt. It would appear that the petitioner and the respondent No. 10 were awarded 25.7 marks each for academic record and research. From the chart containing marks obtained by the petitioner and the respondent No. 10 at the various public examinations taken by them, it would definitely appear that the petitioner deserved more marks than the respondent No. 10. That apart, the petitioner who is the possessor of NET qualification does not appear to have been given any credit for such qualification. Over and above that, despite the respondent No. 10 having no research experience at all, she was awarded the same marks as awarded to the petitioner who, it was noted, had admitted herself for the Ph.D degree. Surprisingly, the respondent No. 11 was given 20.2 marks for academic record and research performance although her research and teaching experience were recorded as nil and her accompanying record was far inferior in comparison to that of the petitioner. Although a writ Court does not sit in appeal over decisions of academic bodies, for lack of measurable standards this Bench is of the further considered view that the modality for awarding of marks to the concerned candidates lack transparency and smack of unfairness and bias. 21. For the reasons aforesaid, the appointments of the respondents 10 and 11 cannot be sustained in law and the same stand set aside. 22. 21. For the reasons aforesaid, the appointments of the respondents 10 and 11 cannot be sustained in law and the same stand set aside. 22. The NBU shall proceed to find out whether apart from the petitioner there is any other candidate (who may have applied pursuant to the aforesaid advertisements) having NET/SLET qualification as on 21.09.2014. If there be any such candidate, the NBU shall conduct a fresh selection process for filling up the two posts of Assistant Professor in Law from amongst such NET/SLET qualified aspirants. Should there be no such candidate, obviously the petitioner by dint of her NET qualification would lay valid claim to one such post and shall be offered appointment. Insofar as the remaining post of Assistant Professor in Law is concerned, it would be open to the NBU to conduct a selection process between the respondents 10 and 11 and to determine who between the two is entitled for fresh appointment on such post. If the NBU so chooses, it shall also be at liberty to publish fresh advertisement for filling up the said post instead of confining the selection to the respondents 10 and 11. 23. Let this process be completed as early as possible, but not later than a month from date of receipt of a copy of this order. 24. The writ petition stands allowed. There shall be no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.