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Himachal Pradesh High Court · body

2020 DIGILAW 5 (HP)

Himanshi Garg v. Himachal Pradesh University

2020-01-01

JYOTSNA REWAL DUA, L.NARAYANA SWAMY

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JUDGMENT Jyotsna Rewal Dua, J. - (A) Since common questions of law and facts are involved in these writ petitions, therefore, with the consent of learned counsel for the parties, the same are taken up together for adjudication. (B) Main question involved in these writ petitions is:- Whether respondent-University could have revised the merit list of candidates for the purpose of admission to Ph.D. Course (Commerce) on the ground that petitioners in-service candidates figuring in the original merit list did not furnish their employers' 'No Objection Certificate' required under H.P. University Ordinance Volume-I. Facts:- 2. The petitioners in CWP No.1240 of 2019 are serving as Assistant Professors on contractual basis in the Education Department of Government of Himachal Pradesh, whereas, the petitioner(s) in CWPs No.1397 and 1398 of 2019 are employed on contract basis with the Himachal Pradesh State Electricity Board. 2(i). Respondent-University issued online circular dated 05.01.2019 inviting applications for enrollment to eight seats of Ph.D. programme in Commerce Department. Last date for submission of the applications for the said programme was 22.01.2019 and entrance test was scheduled to be held on 06.02.2019. All the petitioners applied and appeared in the entrance test. 2(ii). Ph.D. Admission Notice was uploaded on its website by the University on 20.03.2019, informing the candidates, who appeared in Ph.D. Entrance Examination, that:- (a). All those candidates who had secured 50% marks in the Ph.D. entrance test, were required to appear for counselling on 28.03.2019; (b). In accordance with provisions of Ordiance No. 16.10(iv) of H.P. University Ordinance Volume-I, those candidates who were in-service/ employed were to submit 'No Objection Certificate' from their parent department; (c). As per provisions of Ordiance No. 16.13(a)(ii) of H.P. University Ordinance Volume-I, a minimum residency requirement of 12 months was there over entire duration of Ph.D. programme. In addition, six months period of course work was required for candidates, who had not done the course work at M.Phil level. 2(iii). Counselling was held on 28.03.2019. An office order was issued on 16.05.2019, whereunder, names of petitioners figured in the merit list of eight candidates. Names of in-service candidates i.e. petitioners were placed in the merit list subject to the conditions that they have to fulfill the conditions as per the Ordinance No. 16.10(iv), 16.5(c) and 16.13(a)(ii) of the H.P. University Ordinance Volume-I and that they will have to furnish NOCs from their employers by 24.05.2019. 2(iv)(a). Names of in-service candidates i.e. petitioners were placed in the merit list subject to the conditions that they have to fulfill the conditions as per the Ordinance No. 16.10(iv), 16.5(c) and 16.13(a)(ii) of the H.P. University Ordinance Volume-I and that they will have to furnish NOCs from their employers by 24.05.2019. 2(iv)(a). Petitioners in CWP No.1240 of 2019, produced letter dated 27.03.2019 issued by the the Director Higher Education, Government of Himachal Pradesh, addressed to all the Principals of Degree Colleges to the effect that Recruitment and Promotion Rules of Assistant Professors (College Cadre), are not applicable to the contractual employees, therefore, they can directly apply to the Department which advertises the posts and further that there is no need for obtaining any permission/NOC for pursuing higher studies. 2(iv)(b). Petitioners in CWPs No.1397 and 1398 of 2019 produced before the respondent University, NOC issued by concerned Executive Engineer, HPSEBL, containing following conditions:- "1. That the Board's work may not suffer in any case. 2. That leave may be submitted while appearing in examination. 3. That he shall not claim any benefits of his improved qualification from HPSEBL." 2(v). Communication dated 27.03.2019 produced by the petitioners in CWP No.1240 of 2019 and NOC produced by the petitioner(s) in CWPs No.1397 and 1398 of 2019, did not meet the NOC requirement of the respondent-University as laid down in its Ordinance, therefore, the respondent-University issued a revised selection/merit list on 01.06.2019. Names of petitioners did not figure in the new selection/merit list. Aggrieved against the action of the respondentUniversity, in denying admission to the petitioners in the Ph.D. (Commerce) programme, instant writ petitions have been preferred. 3. We have heard learned counsel for the parties and gone through the record. Contentions:- 3(i). Learned counsel(s) representing the petitioners have raised following contentions:- (a). Provisions of H.P. University Ordinance and conditions therein cannot be insisted upon by the University as the same were not part of the admission notice dated 05.01.2019. The admission notice dated 05.01.2019 did not stipulate any requirement of providing NOC from the employer by in-service candidates. Therefore, its insistence, later on by the University at the time of giving admission is illegal. (b). Insistence by the respondent-University on employer's NOC will result in showing door to the meritorious candidates. (c). Respondent-University cannot adopt different yard sticks in Ph.D. admissions, vis-a-vis, NOC conditions. One Mr. Therefore, its insistence, later on by the University at the time of giving admission is illegal. (b). Insistence by the respondent-University on employer's NOC will result in showing door to the meritorious candidates. (c). Respondent-University cannot adopt different yard sticks in Ph.D. admissions, vis-a-vis, NOC conditions. One Mr. Dinesh Verma, an in-service candidate, had been admitted to Ph.D (Hindi) course without insisting upon NOC from his employer. Similarly situated petitioners cannot be discriminated. Learned counsel for the petitioners in CWP No.1397 and 1398 of 2019, while supplementing the above arguments, contended that the petitioners in these two cases had supplied NOC from the Executive Engineer, but the same were wrongly rejected by the University. 3(ii). While rebutting the above contentions, learned counsel for the respondents submitted that the admissions to Ph.D. programme in respondent-University are made under the provisions of Chapter XVI of H.P. University Ordinance (Volume-I). Ordinance No.16.10(iv) which governs the selection of in- service candidates, whereunder, NOC from the employer is required to be furnished by the in-service/employed scholars. The requirements, particularly that of furnishing employers' NOCs, were brought to the notice of the candidates in the Admission Notice dated 20.03.2019 as well as in office circular dated 16.05.2019. Petitioners failed to submit the required NOCs as such failed to apply through proper channel, therefore, the respondent-University had no option except to issue revised selection list on 01.06.2019 from those who were next in the order of merit. Learned counsel for the respondent University relied upon, titled Maharshi Dayanand University versus Surjeet Kaur, (2010) 11 SCC 159 , to contend that no estoppel can be pleaded by a candidate against a statute to gain any wrongful advantage of a fact. Promissory estoppel will not apply against statute. Government or public authority cannot be debarred from enforcing a statutory provision. The relevant paras of the judgment supra, are extracted here-in-below:- "18. There can be no estoppel/promissory estoppel against the legislature in the exercise of the legislative function nor can the Government or public authority be debarred from enforcing a statutory prohibition. Promissory estoppel being an equitable doctrine, must yield when the equity so requires. The relevant paras of the judgment supra, are extracted here-in-below:- "18. There can be no estoppel/promissory estoppel against the legislature in the exercise of the legislative function nor can the Government or public authority be debarred from enforcing a statutory prohibition. Promissory estoppel being an equitable doctrine, must yield when the equity so requires. [vide H.S. Rikhy (Dr.) v. New Delhi Municipal Committee, M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, Shish Ram v. State of Haryana, Chandra Prakash Tiwari v. Shakuntala Shukla, ITC Ltd. v. Agricultural Market Committee, State of H.P. v. U.P. .Rajya Khanij Vikas Nigam Sangharsh Samiti and Sneh Gupta v. Devi Sarup.] 19. On the other hand, the conduct of the respondent was such that even though she had no statutory right or any vested right to pursue her B.Ed. course, the mistake on the part of the appellant to allow her to appear in the examination cannot be by any logic treated to be a conduct of the appellant to confer any such right on the respondent. The rules and regulations cannot be allowed to be defeated merely because the appellant erroneously allowed the respondent to appear in the B.Ed. examination. The records reveal that the respondent did not challenge the cancellation of her results in respect of 1995 examination. The said order attained finality. Respondent straightaway approached the District Forum in the year 2000 for the conferment of B.Ed. degree in pursuance of the examinations conducted under the Notification dated 16.3.1998. This, in the opinion of the court, was a totally misdirected approach and the District Forum fell into error by granting the relief." Observations:- 4. XXX XXX XXX 4(i). The admission to Ph.D. programme is governed by Chapter XVI of Himachal Pradesh University Ordinance Vol.1. Ordinance No. 16.13(a)(ii) provides minimum residency requirement of 12 months during entire duration of Ph.D. Programme. Additionally, six months course work is required to be undertaken by the candidates, who had not done the course work at M.Phil level. The Ordinance is extracted hereinafter:- "16.13(a)(ii). There shall be a minimum residency requirement of twelve months over the entire duration of the Ph.D. programme to be certified by the supervisor and the Chairperson. This shall be in addition to the six months period of course work required for those candidates who have not done this course work at the M.Phil. The Ordinance is extracted hereinafter:- "16.13(a)(ii). There shall be a minimum residency requirement of twelve months over the entire duration of the Ph.D. programme to be certified by the supervisor and the Chairperson. This shall be in addition to the six months period of course work required for those candidates who have not done this course work at the M.Phil. Level." Even assuming that the H.P. University Ordinance might not be readily available as projected by the petitioner, but the stipulations in Ordinance No.16.13(a)(ii) and 16.10(iv), were brought to the notice of the candidates by means of admission notice dated 23.03.2019 and thereafter, under office circular dated 16.05.2019. Ordinance No.16.5(c), reads as:- "16.5(c). Course Work: The candidates who are admitted directly after M.A./M.Sc. or equivalent degree to the Ph.D. programme, shall have to complete course work in the 1st semester. They shall attend regular classes for one semester alongwith the regular M.Phil. Batch and are required to pass all courses of that semester. The same shall apply to candidates who have obtained their M.Phil degree without completing equivalent course work." It is on account of the requirement of undertaking the 12 months residency and six months course work that Ordinance 16.10 (iv) prescribes furnishing of employer's NOC by the selected in-service candidate(s). Ordinance 16.10(iv) is reproduced hereinafter: "16.10(iv). Scholars who are in service/employed will be required to submit a 'No Objection Certificate' to standing committee for approval of their registration to the Ph.D. programme." 4(ii). The object of insisting upon employer's NOC is to secure the consent of the employer, so that in-service candidates are in a position to continue their studies for the entire duration of Ph.D. degree course including their residency programme, attending course work and regular classes for one complete semester. To avoid any situation in future where a candidate for want of consent of his/her employer or on account of objection from the employer is not in a position to finish his study/residency/attending regular classes and may have to abandon the Ph.D. programme midway, causing the University a loss more so when the programme/course has limited seats and also causing loss to other desirous candidates, the condition of NOC from the employer is insisted upon under the Ordinance. The rationale in getting employers' NOCs from in-service candidates has well defined object as otherwise seat might go waste in future. 4(iii). The rationale in getting employers' NOCs from in-service candidates has well defined object as otherwise seat might go waste in future. 4(iii). The stipulations in the H.P. University Ordinance Vol.I and the requirement of furnishing employers' NOCs, were in the knowledge of the petitioners. It is for this reason they tried to obtain employers' NOCs. In CWP No.1240 of 2019, the employer did not give specific NOC and stated that Recruitment and Promotion Rules of Assistant Professors (College Cadre) were not applicable to contractual employees, therefore, they can apply directly to the departments advertising the posts and there is no need of any kind of permission for pursuing higher studies. There may not be any requirement for State contractual employees for permission to pursue higher studies under the Recruitment and Promotion Rules framed by the employer. But, the fact remains that there is specific requirement under the University Ordinance for the employer's NOC and the same has been specifically brought to the notice of the petitioners in the admission notice. Therefore, such NOC was required to be furnished by the petitioners. It is the H.P. University Ordinance, which govern admissions to the said University and not the Recruitment and Promotion Rules for the post of Assistant Professor (College Cadre). The petitioners in CWP No.1397 and 1398 of 2019 though furnished NOCs from concerned Executive Engineer(s), however, these NOCs, in essence, cannot be construed as 'No Objection Certificates'. These conditional NOCs definitely did not meet the requirements as stipulated in the University Ordinances. The conditions inserted in the NOCs in CWPs No.1397 and 1398 of 2019, were that employer's work should not suffer and leave should be submitted while appearing in the examination. These were in sharp contrast to the requirement of H.P. University wherein the candidates were required to attend six months course work and minimum 12 months residency programme, involving attending regular classes for one semester. The University was, therefore, within its right to issue revised merit list on failure of the petitioners to furnish employers' NOCs as per requirement of Chapter XVI of H.P. University Ordinance Volume-I. The rules and regulations cannot be allowed to be defeated merely because the candidate has been allowed to appear in an examination without his/her complying the mandatory conditions under the statute. In view of the above discussion, we find no merit in the present writ petitions and the same are according dismissed. However, before parting, we may observe that the respondent-University will be well advised to issue either a format of NOC required by it; some specific guidelines in respect of NOCs; the Authority competent to issue the NOCs etc., so that there remains no vagueness about the form/ format or contents of NOCs to be furnished by the in- service candidates applying for Phd. Programme in future. With the aforesaid observations/directions, the present writ petitions stand disposed of, so also pending miscellaneous application(s), if any.