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Gauhati High Court · body

2017 DIGILAW 359 (GAU)

Malabika Talukdar W/o Sri Ajoy Kumar Das v. State of Assam, Represented by the Commissioner & Secretary to the Government of Assam, Higher Education Department

2017-03-21

A.K.GOSWAMI

body2017
JUDGMENT & ORDER : 1. Heard Mr. G.Z. Ahmed, learned counsel for the petitioners. Also heard Mr. K. Gogoi, learned standing counsel, Higher Education Department, appearing for the respondent Nos. 1 & 2, Mr. L.P. Sarma, learned standing counsel, Gauhati University, appearing for the respondent No. 3 and Mr. P. Kataki, learned counsel, appearing for the impleaded respondent No. 4. 2. The respondent No. 4 had filed an application for vacating the interim order dated 06.11.2013, which is registered as I.A. (Civil) No. 317/2017. By the aforesaid interim order, the 2(two) petitioners were permitted to appear in the interview scheduled to be held on 08.11.2013, observing that the result shall not be declared till the next date fixed, which was fixed on 20.11.2013. The interim order was subsequently continued from time to time. 3. The learned counsel appearing for the parties submit that instead of taking up the interlocutory application for vacating the interim order, it will be more appropriate if the writ petition is taken up for disposal. 4. Mr. Kataki has submitted that he does not intend to file any affidavit in the writ petition. Accordingly, the writ petition is taken up for disposal. 5. The petitioner No. 1 and the petitioner No. 2, at the time of filing of the writ petition, were working in the capacity of Assistant Professor/ Lecturer (Contractual) and Assistant Professor/Lecturer (Part Time) in the University Law College, Gauhati University, respectively. Both of them responded to an advertisement published on 15.05.2013 in an English daily, namely, “The Assam Tribune” whereby applications were invited from the eligible candidates for appointment to 2(two) posts of Assistant Professor in the subject of Constitutional and Administrative Law. The interview was scheduled to be held on 08.11.2013 and as the petitioners came to learn that some of the other candidates had already received their call letters and as they did not receive any, they made enquiries and such enquiries revealed that their applications had not been accepted by the authorities of the University and, therefore, no call letters were issued to them. It is pleaded in the writ petition that though no reason was assigned for the rejection of their applications, their attention was drawn to a Clause in the advertisement which recites that mere fulfillment of qualification would not entitle an applicant for being invited to the interview. 6. It is pleaded in the writ petition that though no reason was assigned for the rejection of their applications, their attention was drawn to a Clause in the advertisement which recites that mere fulfillment of qualification would not entitle an applicant for being invited to the interview. 6. It is in this aforesaid background that these petitioners approached this Court ventilating their grievances to the effect that despite having the requisite qualifications, they had been unjustly and unreasonably denied participation in the interview process. 7. Mr. Ahmed has submitted that the petitioner No. 1 had enrolled for his Ph.D. Programme in the year 2003 and the petitioner No. 2 in the year 2005 and both of them had obtained their Ph.D. Degrees in the year 2012. It is submitted by him that no doubt that the petitioners did not have the qualification of NET, but in view of the resolution of the University Grants Commission (UGC) in a meeting held on 27.09.2010, they were exempted from the requirement of NET for the purpose of appointment as Lecturer/ Assistant Professor. In this connection, the learned counsel draws the attention of the Court to the Annexure-9 of the writ petition, which is minutes of the 472nd meeting of the UGC held on 27.09.2010 as well as a Notification dated 01.01.2011 issued by the Additional Chief Secretary to the Government of Assam, Education (Higher) Department (Annexure-10 of the writ petition) incorporating the said resolution of the UGC and forwarding copies, amongst others, to the Registrar, Gauhati University. Accordingly, he submits that there is no shadow of doubt about the eligibility of the petitioners to participate in the selection process pursuant to the aforesaid advertisement. It is also submitted by Mr. Ahmed that the Clause incorporated in the advertisement that fulfillment of qualification may not entitle an applicant for being invited to the interview is per se arbitrary, illegal and cannot be countenanced in law as the same has the potential of leveraging great mischief. 8. Abiding by the stand taken in the affidavit, it is submitted by Mr. Sarma that the petitioners did not have NET and, therefore, they were not qualified. 8. Abiding by the stand taken in the affidavit, it is submitted by Mr. Sarma that the petitioners did not have NET and, therefore, they were not qualified. He has submitted that exemption of NET would have come into play only if the petitioners had obtained Ph.D Degree under the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil /Ph.D Degree) Regulation, 2009 (for short “Regulation of 2009”) and admittedly, the Ph.D Degree acquired by the petitioners does not fall in the category covered by the aforesaid Regulation of 2009. 9. Mr. Sarma emphasizes that the Ph.D Degree of the petitioners having not been awarded in compliance of the aforesaid Regulation of 2009, they are plainly not qualified to appear in the interview. 10. Mr. Kataki submits that, according to his perception, the petitioners are also eligible to respond to the advertisement. 11. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record. 12. The Regulation of 2009 provides as follows:- “NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/ Colleges/Institutions. Provided, however, that candidates, who are or have been awarded Ph.D. Degree in compliance of the ‘University Grants Commission (minimum standards and procedure for award of Ph.D Degree) Regulation, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in University/Colleges/Institutions.” 13. The affidavit of the University wishes away the subsequent resolution taken on the 472nd meeting of the UGC by simply saying that the same was merely a process of deliberation and not final decision. Under item No. 2.08, it was recorded 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 this modification, the minutes of the 471st meeting of the UGC held on 12.08.2010 was confirmed.” It is also indicated therein that the action shall be taken by the Director (Administration). 14. It is on the basis of the aforesaid resolution that the Additional Chief Secretary to the Government of Assam, Education (Higher) Department had issued the Notification dated 01.01.2011 (Annexure-10 of the writ petition) and copy was also forwarded, amongst others, to the Registrar of the Gauhati University. 15. The resolution of 471st meeting of the UGC, as modified, makes it clear that candidates, who had registered themselves for Ph.D degree on or before 10.07.2009 and are subsequently awarded Ph.D degree, shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. 16. In view of the above resolution, I concur with the submissions of the learned counsel for the petitioners that the petitioners did have the requisite qualification for appearing in the interview as advertised by the advertisement dated 15.03.2013. Accordingly, a writ of Mandamus is issued to the University Authorities directing them to declare the result of the interview including that of the petitioners and thereafter, to take such steps as may be necessary to make appointment to the aforesaid 2(two) posts. 17. Since the applications of the petitioners were rejected on the ground that they did not meet the eligibility criteria, it will not be necessary for this Court to examine the allegedly offending part of the advertisement, as the same will be, in the context of the case, an academic exercise. It is an accepted proposition in law that a writ Court ought not to embark upon an academic exercise. 18. The writ petition stands allowed with the directions and observations as indicated above.