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2018 DIGILAW 270 (GAU)

Ganga Dhar Das v. State of Assam

2018-02-13

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. N.N. Upadhayay, learned counsel for the petitioner, Mr. K.N. Choudhury, learned senior counsel appearing for the respondent No. 6, Mr. K. Gogoi, learned Standing Counsel for the Higher Education Department and Mr. N.K. Neog, learned counsel appearing for the respondent Nos. 3, 4 and 5. Also Heard Mr. A. Chamuah, learned Standing Counsel for the UGC. The petitioner who has the qualification of PhD Degree in the year 2003 and serving as an Associate Professor in the B.H College at Howli, had participated in a selection process for the post of Principal of the said College as per the advertisement dated 25.8.11. The respondent No. 6, who is also an Associate Professor in the Tezpur University and has the required qualification, had also participated in the selection process pursuant to the said advertisement. 2. The advertisement prescribes the required qualification to be Master Degree with at least 55% marks from a recognized University, a PhD Degree in the concerned/allied/relevant discipline and be an Associate Professor/Professor with a total experience of 15 years of teaching experience/research administration in Universities/Colleges etc. The result of the selection finds place in the consolidated statement of marks awarded to the respective candidates by the Selection Committee. As per the consolidated statement of marks, the respondent No. 6 Dr. Bhusan Chandra Pathak had secured the total marks of 456, whereas the petitioner Dr. Ganga Dhar Das had secured a total marks of 368. The selection and appointment of the respondent No. 6 on 17.01.2012 has been assailed in this writ petition. The respondent No. 6 accordingly joined his post on 23.01.2012. 3. Amongst others, the ground urged upon by Mr. N.N. Upadhayay, learned counsel for the petitioner at the time of hearing of the writ petition is that as required by the advertisement of 25.08.2011, the respondent No. 6 did not have the required total experience of 15 years of teaching/research administration in Universities/Colleges etc. It is the contention of the learned counsel for the petitioner that the said requirement is a mandatory requirement of the advertisement and therefore, in the event, the respondent No. 6 does not have the requirement of 15 years of teaching experience, he would be ineligible even to apply for the post. 4. In order to substantiate his claim, Mr. It is the contention of the learned counsel for the petitioner that the said requirement is a mandatory requirement of the advertisement and therefore, in the event, the respondent No. 6 does not have the requirement of 15 years of teaching experience, he would be ineligible even to apply for the post. 4. In order to substantiate his claim, Mr. Upadhayay, learned counsel for the petitioner refers to 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) Regulation, 2010, wherein Clause-10.0 provides for counting of past services for direct recruitment and promotion under CAS i.e. Career Advancement Scheme. The learned counsel for the petitioner relies upon Clause-10.1 thereof, which provides that previous regular service, whether national or international as Assistant Professor, Associate Professor or Professor or equivalent should be counted for direct recruitment and promotion under CAS. The learned counsel for the petitioner also refers to Clause-10.1(f), which provides that the previous appointment should not be as a guest Lecturer for any duration or an ad-hoc or in a leave vacancy of less than one year duration. Relying upon the aforesaid provisions of Clause-10.0, it is die submission of the learned counsel for the petitioner that in the instant case, the respondent No. 6 had served in the Cotton College for the period from 01.10.1993 to 10.02.1999 against a non-sanctioned post and therefore, the past service of the respondent No. 6 for the said period should not be counted towards his total teaching experience as required in the advertisement. 5. Per-contra, Mr. K.N. Choudhury, learned senior counsel for the respondent No. 6 refers to Clause-4.2.0 of the said Regulation of 2010, which inter-alia provides the required qualification for the post of a Principal. According to Mr. Choudhury, learned senior counsel, Clause-4.2.0 (i) provides for the experience as Associate Professor/Professor with a total experience of 15 years of teaching/research/administration in Universities, Colleges etc. By referring to the said clause, it is the submission of Mr. Choudhury, learned senior counsel that the required qualification for the post of Principal of a College is governed by Clause-4.2.0 of the UGC Regulation of 2010 and Clause-10.0 has no relevance for the purpose. 6. Mr. K.N Choudhury, learned senior counsel also refers to the pronouncement of the Hon'ble Supreme Court rendered in Dr. Choudhury, learned senior counsel that the required qualification for the post of Principal of a College is governed by Clause-4.2.0 of the UGC Regulation of 2010 and Clause-10.0 has no relevance for the purpose. 6. Mr. K.N Choudhury, learned senior counsel also refers to the pronouncement of the Hon'ble Supreme Court rendered in Dr. Asim Kumar Bose vs. Union of India and Others, (1983) 1 SCC 345 , wherein, while examining the requirement of teaching experience, the Hon'ble Supreme Court had concluded that there is hardly any difference so far as teaching experience is concerned, whether it is acquired on a regular appointment or as a specialist in a teaching hospital with an ex officio designation. 7. The learned counsel for the petitioner, on the other hand, relies upon a decision of the Hon'ble Madras High Court rendered in S. Palanivel vs. The Principal and Another, wherein in paragraph-2, while considering the provision of an UGC regulation, the meaning of the expression past service was also examined. 8. Before arriving at a conclusion as to whether Clause-10.0 of the UGC Regulation of 2010 or Clause-4.2.0 of the Regulation is applicable in the present case, it is apposite to examine the provisions of Clause-10.0 of the Regulation. On a reading of the clause-10.0 of the Regulation, it is noticed that the said clause pertains to counting of past service for direct recruitment and promotion under CAS. CAS is understood to be a scheme, where certain in house candidates are given an opportunity of accelerated promotion beyond their normal course of promotion. Although the expression direct recruitment and promotion appears in Clause-10.0, it also has to be understood that such direct recruitment and promotion is for the purpose of CAS and not a direct recruitment or promotion per-se. As a CAS involves an in-house candidate vying for an accelerated promotion, therefore, the provisions for past service on a regular basis has its own relevance. In other words, in order to be eligible for the CAS, a relevant consideration would be his past service against a previous regular service inasmuch as, a service in an ad-hoc or any other manner would not be an appropriate pointer towards his qualification for such CAS. 9. In other words, in order to be eligible for the CAS, a relevant consideration would be his past service against a previous regular service inasmuch as, a service in an ad-hoc or any other manner would not be an appropriate pointer towards his qualification for such CAS. 9. In such view of the matter, this Court is not inclined to accept the submission of the learned counsel for the petitioner that the provisions of Clause-10.0 would also be applicable for the recruitment to the post of Principal, which is in the form of a regular recruitment and not for the purpose of a CAS. 10. In the aforesaid context, the provisions of Clause-4.2.0 of the UGC Regulation of 2010 would be more relevant inasmuch as, the said clause do actually provide for the qualifying requirement for the post of Principal. Clause-4.2.0(iii) clearly provides that the required experience amongst others would be a total experience of 15 years of teaching/research/ administration in Universities/Colleges etc. 11. In the view of this Court, there is a substantial difference between the requirement of a teaching experience and that of a past service. Past service has its own connotation with specific reference to where the concerned person is serving and the implications thereof. On the other hand, for the purpose of a direct recruitment simpliciter when the requirement is of teaching experience, any service resulting in a teaching experience would acceptable for the purpose of satisfying the requirement of a teaching experience. 12. For the purpose, the conclusion of the Hon'ble Supreme Court in para-29 in Dr. Asim Kumar Bose (Supra) would also be relevant wherein it was held that there is hardly any difference so far as teaching experience is concerned whether it is acquired on a regular appointment or as a specialist etc in some other allied manner. 13. The Hon'ble Madras High Court in S. Palanivel (Supra) in paragraph-2, merely provides for understanding the UGC Regulations of 1998, wherein past service without any break is a provision for the purpose of CAS. The said decision does not come to the help of the petitioner to substantiate his contention that past service and teaching experience are one and the same. 14. The said decision does not come to the help of the petitioner to substantiate his contention that past service and teaching experience are one and the same. 14. From the said point of view also, it cannot be said that the teaching experience of the respondent No. 6 for the period of 1.10.1993 to 10.2.1999 in the Cotton College, Guwahati against the non-sanctioned post cannot be construed to be a teaching experience. 15. In the above view of the matter, the contention of the learned counsel for the petitioner that the respondent No. 6 did not have the required teaching experience of 15 years is unacceptable. Accordingly, the writ petition is found to be devoid of any merit and the same stands dismissed. However, there is no order as to cost. In terms of the above, the writ petition stands disposed of.