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J&K High Court · body

2017 DIGILAW 436 (JK)

Juhie Mohan v. University of Jammu

2017-07-26

B.S.WALIA

body2017
JUDGMENT : 1. The only point in controversy is as to whether rejection of claim of the petitioner for conversion of status as whole time Ph.D scholar to part time Ph.D scholar while granting relief to other identically situated whole time Ph.D scholars is legally sustainable or not. 2. The point in issue has to be considered in the light of Statutes 7(a), 8 (a)(iv) and 13 of the University Statutes. The same are reproduced here under : “7(a): Every candidate shall pursue, as a whole time research scholar of the University, a course of research, for not less than two years from the date of registration. 8(a): Notwithstanding anything to the contrary contained in Statute 7, the following categories of employees shall be eligible for registration for PhD Programme as part-time scholars on production of written permission of the employer and subject to the fulfilment of other conditions of eligibility. 8(a)(iv): Employees of the Central/State Government/Public undertakings/Autonomous bodies (other than the employees of the University of Kashmir) Academic NGO’s/Corporate executives working in Public/Private Limited Companies with minimum 3 years managerial experience serving within the State of Jammu and Kashmir. Regular service for the purpose of registration as part time scholars means that the candidate has put in two years service against a clear vacancy after being appointed through a properly constituted Selection Committee. 13: In no case a whole time research scholar shall take up a job or engage himself/herself in any business, profession or a vocation during the minimum period as required under Statute 7(a). Provided that in exceptional cases if a candidate joins service after completion of one year as a whole time scholar, he/she will be treated as a part time scholar and his/her remaining period of registration will be doubled subject to minimum of three years." 3. Brief facts of the case leading to the filing of the instant writ petition are that the petitioner was registered as PhD scholar on 09.05.2012 while one Asha Rani and Usha Sharma were registered as PhD scholars on 10.05.2012 and 04.05.2012 respectively. On 15.07.2013, the petitioner got a job as Radio Jockey in Reliance Broadcast Network Limited while Asha Rani and Usha Sharma got appointment as Social workers in the Health and Medical Education Department on 7th October, 2013. On 15.07.2013, the petitioner got a job as Radio Jockey in Reliance Broadcast Network Limited while Asha Rani and Usha Sharma got appointment as Social workers in the Health and Medical Education Department on 7th October, 2013. Applications were submitted by all three aforementioned whole time PhD scholars for conversion of their registration from whole time Ph.D scholar to part time Ph.D scholar's. In the case of Asha Rani and Usha Sharma, decision was taken by the competent authority to convert their whole time registration to part time registration subject to production of NOC from the employer, but in the case of the petitioner, the same was rejected. 4. Learned counsel for the petitioner has referred to page 72 of the paper book i.e. order Annexure Z dated 08.11.2016 rejecting the claim of the petitioner in terms of Statute 8(a)(iv) of the Statutes. Learned counsel states that the aforementioned order has been passed in derogation of the Statutes applicable and Statute 8(a)(iv) has no applicability whatsoever in the facts of the case and that the case of the petitioner was to be considered in the light of proviso to Statute 13. 5. Per contra, learned counsel for the respondents contended that a perusal of Statute 7(a) made it crystal clear that a candidate registered for Ph.D programme was required to carry out research as a whole time research scholar of the University for a period of not less than two years from the date of registration and that in terms of Statute 13, there was a specific bar that in no case, a whole time research scholar could take up a job or engage himself/herself in any business, profession or a vocation etc., during the minimum period as required under Statute 7(a). Learned counsel further contends that the case of the petitioner was covered under Statute 8(a)(iv) which provided that employees of the Central/State Government, Public Undertakings, Autonomous Bodies/Corporative executives working in the Public/Private Ltd. companies with minimum of three years’ managerial experience serving within the State of Jammu and Kashmir were eligible for registration for Ph.D programme as a part time scholar on production of written permission from the employer and subject to fulfilment of other eligibility conditions as stipulated in Statute 8(a)(iv). 6. I have considered the submissions of learned counsel for the parties and have gone over the Statutes. 6. I have considered the submissions of learned counsel for the parties and have gone over the Statutes. Statute 8(a)(iv) contemplates part time registration for Ph.D programme for employees already working, therefore, the submission of learned counsel for the respondents that it is Statute 8(a)(iv) which is applicable has no applicability to the facts of the instant case since it is not a case of registration of an employee for Ph.D programme as part time scholar but of conversion of status as whole time Ph.D scholar to part time Ph.D scholar. 7. No doubt, Statute 7(a) stipulates that every candidate registered for PhD is to pursue research as a whole time scholar of the University, for not less than two years from the date of registration. Statute 13 reiterates the same position when it lays down that in no case shall a whole time research scholar take a job or engage himself/herself in any business, profession or a vocation during the minimum period as required under Statute 7(a). However, the fact remains that the bar contained in Statute 7(a) and Statute 13 is whittled down by the proviso to Statute 13 which provides that in exceptional cases, if a candidate joins service after completion of one year as a whole time scholar, he/she will be treated as a part time scholar and his/her remaining period of registration will be doubled subject to minimum of three years. 8. I find merit in the submissions of learned counsel for the petitioner that the petitioner and Usha Rani and Asha Sharma being identically situated except for the petitioner having got employment in the private sector in comparison to other candidates having got employment in the Government Sector, there is no other distinguishable feature qua the claim of all three candidates since all of them had been registered one year prior to their obtaining jobs and had done research for a period of one year after registration. I also find merit in the submissions of learned counsel for the petitioner that rejection of claim of the petitioner for conversion of her whole time Ph.D scholar status to a part time Ph.D scholar status by applying Statute 8(a)(iv) of the University Statutes is in derogation of the proviso to Statute 13 which, in fact, is applicable and not Statute 8(a)(iv). 9. 9. In the light of the position as noted above, the decision on Agenda Item No.l2, dated 18th November, 2014 qua the petitioner and the decision of the Dean Research Studies dated 08.11.2016 is held to be legally unsustainable being in derogation of the Statutes applicable. Accordingly, the decision on Agenda Item No.12, dated 18th November, 2014 qua the petitioner and decision of Dean Research Studies dated 08.11.2016 are quashed. The respondents are directed to pass fresh orders in accordance with the observations made above and on the same reasoning on the basis of which the case of the other two Ph.D. whole time scholars i.e. Ms. Usha Rani and Ms. Asha Sharma was considered. Needful be done within a period of six weeks from the date of receipt of certified copy of this order. 10. Writ petition is disposed of in the aforementioned terms.