Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 1112 (AP)

Gumpula Sushma v. State of Andhra Pradesh

2023-07-20

GANNAMANENI RAMAKRISHNA PRASAD

body2023
ORDER : 1. Heard Sri M.Sri Vijay, Ld. Counsel for the Writ Petitioners, Sri S.Appadhara Reddy, Ld. Government Pleader for Medical and Health and Sri Guttapalem Vijaya Kumar, Ld. Standing Counsel for Dr.N.T.R. Health University. 2. The prayer made in the Writ Petition is as under: “In the above circumstances, it is prayed that this Hon’ble Court may be pleased to issue an appropriate writ more in the nature of Writ of Mandamus declaring the action of the Respondents, more especially the Respondents 3 and 4 in conducting Practical Examinations, without filling up the posts of Professors (internal examiners) in the 6th Respondent Institution against the sanctioned posts and even without considering the representation made by the Petitioners dated 29.08.2022 despite the permission granted by the 1st Respondent Government in hurried manner as being arbitrary, illegal and violating Articles 14, 16 and 21 of the Constitution of India and also the principles of natural justice and consequently direct the Respondents 3 & 4 to postpone the practical examination scheduled from 05.01.2022 for M.D.Homeo courses in Materia Medica, in terms of the Notification dated 22.09.2022 of the 4th Respondent until the appointments of Professors in the 6th Respondent college is done and issue such other writ or order or direction as deemed fit and proper in the circumstances of case.” FACTS: 3. The facts as projected in the Affidavit filed in support of the Writ Petition are that the Writ Petitioners are pursuing their Ph.D. i.e. M.D. (Homeo) course in Materia Medica in the Respondent No. 5 College; that the Writ Petitioners were facing hardship because the Respondent No. 5 College was not filling up the Professor vacancies on account of which the course undertaken by the Writ Petitioners also could not be completed; that on 11.07.2022 the Government of Andhra Pradesh granted permission to the Respondent No. 2 to fill-up the vacant post of Professor vide G.O.Rt.No. 577, dated 11.07.2022; that pursuant to the said G.O., the Respondent No. 2 issued Notification No. 2 of 2022 on 25.07.2022; that while the process of appointment of Professors, which include appointment of Internal Examiners as well, was underway, the Writ Petitioners herein have submitted a Representation on 29.08.2022 requesting the Respondents to complete the process of appointment of Professors expeditiously since the syllabus has not been completed for want of Professors in the respective subjects; that, despite this Representation dated 29.08.2022, the Respondents have issued a Notification on 22.09.2022 containing the schedule for examination; and that it is indicated in the said examination Notification that the theory exams would commence from 17.12.2022 for the M.D. Homeo Course. 4. Sri M.Sri Vijay, Ld. Counsel appearing for the Writ Petitioners, in the course of submissions, has submitted on the strength of the averments in the Affidavit, that the Writ Petitioners have filed another Writ Petition seeking stay of the theory examinations. He submits that due to administrative exigencies in this Court as regards the allocation of proper Bench, the theory examinations came to be completed even before the said Writ Petition came-up for hearing. He further submits that the Writ Petitioners herein have filed the present Writ Petition seeking to fill-up posts of Professors with persons having proper qualification to deal with the concerned subjects. He further submits that such of the professors who will be appointed will also be the Internal Examiners. 5. Sri M.Sri Vijay, Ld. He further submits that the Writ Petitioners herein have filed the present Writ Petition seeking to fill-up posts of Professors with persons having proper qualification to deal with the concerned subjects. He further submits that such of the professors who will be appointed will also be the Internal Examiners. 5. Sri M.Sri Vijay, Ld. Counsel would submit that (Prof.) Dr.D.Ch.Narasimhulu, who is a member of the faculty for the course of M.D. (Homeo) (Materia Medica), was appointed as Research Guide/Research Supervisor for all the Writ Petitioners; that the Research Guide ((Prof.) Dr.D.Ch.Narasimhulu) of the Writ Petitioners herein has since retired on 30.06.2021 there is a vacancy to this position; and that due to absence of the Research Guide due to the reason of retirement, the Writ Petitioners are deprived of having a properly qualified Guide as one of the Internal Examiners. He has drawn the attention of this Court to the amended Principal Regulations published in the Gazette of India on 28.03.2016 issued by Central Council of Homoeopathy. He has particularly drawn the attention of this Court to Sub-Regulation (2) of Regulation No. 13 to contend that one of the examiners shall be appointed as Supervisor (Guide) or Co-Supervisor (Co-Guide) as the case may be. 6. Ld. Counsel for the Writ Petitioners would submit that this is a mandatory provision and that the Research Guide who is guiding the Writ Petitioners in the process of pursuing their thesis shall be one of the Internal Examiners. He submits that the said Guide assigned to the Writ Petitioners, who has been associated with the Writ Petitioners while working on their thesis, has retired on 30.06.2021. He further submits that even if the Professor who is serving as a Research Guide has retired, he can be continued as a Research Guide/Research Supervisor in order to protect the interest of the Writ Petitioners. He submits that the Official Respondents are unable to appoint their erstwhile Research Guide as one of the Internal Examiners on hyper-technical grounds such as the Notification of the Central Council of Homoeopathy dated 08.03.2013; wherein, Paragraph No. 9 Sub-Paragraph No. 3 states as under: “9. He submits that the Official Respondents are unable to appoint their erstwhile Research Guide as one of the Internal Examiners on hyper-technical grounds such as the Notification of the Central Council of Homoeopathy dated 08.03.2013; wherein, Paragraph No. 9 Sub-Paragraph No. 3 states as under: “9. Requirements of College: (1) Teaching Staff: There shall be minimum teaching faculty as per Schedule-IV for B.H.M.S. degree Course (including for conducting graded degree Course) and for Post Graduate degree course additional as per Schedule-V. (2) Teachers or consultants of modern medicine: Teachers or Consultants of modern medicine like Pathologist, Radiologist, Anaesthetist, Gynaecologist, Physician, Surgeon, Opthalmologist, Pediatrician, Dentist, etc., may be appointed on contract basis or part time or on call basis, and these teachers or consultants shall be in addition to the teaching faculty as prescribed in Schedule-IV. (3) Age of superannuation of teachers: The age of superannuation of teachers shall be as per the Central Government or State Government or University Grants Commission norms as applicable to that particular college, and the retired teachers fulfilling the eligibility norms of teachers can be re-employed upto the age of sixty five years as full time teacher. (4) Requirement of technical and other staff: The technical and other staff in various units and departments of the college shall be as per the details given in Schedule-VI.” 7. The above mentioned Sub-Paragraph No. 3 of Paragraph No. 9 indicates that the retired teachers can be re-employed only up to the age of 65 years and that the Official Respondents are unable to appoint their erstwhile Guide only because the erstwhile Guide has crossed his age of 65 years. He further submits that the above mentioned Sub-Paragraph No. 3 of Paragraph No. 9 is inapplicable in his case; and he further submits that for the limited purpose of attending the practical examination as one of the Internal Examiners, the erstwhile Guide can always be continued as there is no legal impediment. He further submits that appointing the erstwhile Research Guide for this limited purpose of attending practical examination as one of the Internal Examiners would not amount to re-employment and that it is only for reemployment, the upper limit of age is fixed as 65 years. He further submits that appointing the erstwhile Research Guide for this limited purpose of attending practical examination as one of the Internal Examiners would not amount to re-employment and that it is only for reemployment, the upper limit of age is fixed as 65 years. He further submits that rather than assigning new professors who are not familiar with the thesis on which the Writ Petitioners have worked, in the interest of Students/Writ Petitioners herein, it is desirable to appoint the erstwhile Research Guide as one of the Internal Examiner without having to consider Paragraph No. 9 Sub-Paragraph (3) of the Notification dated 08.03.2013 issued by the Central Council for Homoeopathy. This apart, he further submits that since the Research Guide of the Writ Petitioners has retired only on 30.06.2021, at the age of 60 years or so, he is still under the age of 65 years and therefore, even under this score also, there is no impediment in continuing (Prof.) Dr.D.Ch.Narasimhulu as a Research Guide and act as one of the Internal Examiner. 8. The Ld. Counsel for the Respondents would submit that Sub-Paragraph (3) of Paragraph No. 9 of the Notification dated 08.03.2013 issued by the Central Council for Homoeopathy imposes an embargo, by virtue of which the erstwhile (Prof.) Dr.D.Ch.Narasimhulu who has crossed the age of 65 years cannot be appointed. He further submits that since there is a bar on re-employment of Professors over and above 65 years, such Professors, despite the fact that they have acted as Guides in guiding the Writ Petitioners in their thesis, such a Guide cannot now be appointed even as Internal Examiner for the limited purpose of attending the practical examinations. The Official Respondents would submit that there is no such precedent of appointing a retired Professor who has crossed the age of 65 years either as Guide or as Internal Examiner. ANALYSIS: 9. From the submissions made by the Ld. Counsel for the Writ Petitioners, it appears that the main controversy now revolves around the issue of Research Guide who has to be one of the Internal Examiner as per the Rules and Regulations. It is stated that (Prof.) Dr.D.Ch.Narasimhulu was the Research Guide for the Writ Petitioners for writing the Ph.D. Thesis. The “Thesis” of the Writ Petitioner No. 2, which is furnished by the Ld. It is stated that (Prof.) Dr.D.Ch.Narasimhulu was the Research Guide for the Writ Petitioners for writing the Ph.D. Thesis. The “Thesis” of the Writ Petitioner No. 2, which is furnished by the Ld. Counsel for the Writ Petitioners, indicates that the Ph.D. Thesis was written and submitted under the guidance of (Prof.) Dr.D.Ch.Narasimhulu, M.D.(HOM), Department of Materia Medica. It is submitted that (Prof.) Dr.D.Ch.Narasimhulu, M.D.(HOM) has retired on 30.06.2021, and therefore, he is unable to attend as an Internal Examiner. It is submitted that the Regulations mandate that the Research Guide “shall be” one of the Internal Examiner. As indicated earlier, in the Principal Regulations issued by the Central Council for Homeopathy, as amended from time to time, with the last amendment on 28.03.2016, Regulation No. 13 Sub-Regulation (2) clearly indicates that one of the examiners shall be appointed as Supervisor (Guide) or Co-Supervisor (Co-Guide) as the case may be. The Regulation No. 13 is extracted in its entirety as under: “13. Examiners: (1) the criteria for examiners shall be the same as of the Supervisor (Guide) or Co- Supervisor (Co-Guide) as the case may be. (2) one of the examiners shall be appointed as Supervisor (Guide) or Co-Supervisor (Co-Guide) as the case may be (emphasis supplied). (3) at least 50% of the examiners shall be external examiners.” 10. The Court directed the parties to file material concerning the role and responsibilities of Research Guides/Research Supervisors in general and also with specified reference to the course subjects. Ld. Counsel for the Writ Petitioners across the table has furnished certain material. This Court deems it appropriate to deal with the material to understand the role and responsibilities of Research Guides/Research Supervisors which also includes Co-Guides and Co-Supervisors. The National Institute of Science Education and Research, Bhubaneswar, which is an Autonomous Premier Public Research Institute, has issued certain Guidelines after being approved in the meeting of the Standing Committee of Deans held on 01.10.2015. These Guidelines also prescribed the experience and qualifications which are required for a Faculty Member to act as a Guide. It is stated that before Faculty Member is designated as Guide, he/she shall train himself or herself as Co-Guide/Co-Supervisor for certain period, as the case may be. These Guidelines also prescribed the experience and qualifications which are required for a Faculty Member to act as a Guide. It is stated that before Faculty Member is designated as Guide, he/she shall train himself or herself as Co-Guide/Co-Supervisor for certain period, as the case may be. Excluding unnecessary details, suffice it to state that the said Guidelines unequivocally state that the Guide is expected to provide a framework within which the academic work can take place by: (i) setting up a regular schedule of meetings with student to allow for regular interaction and information flow. (ii) reaching agreement with student on indicators of progress being made and dates for submission of progress reports. (iii) providing regular and prompt feedback on progress to student (including written feedback on written work within two weeks unless the written work is extensive). 11. It is also stated that the Guide is expected to provide academic guidance by: (i) providing scholarly direction. (ii) encouraging student in his/her academic work. (iii) ensuring that appropriate time table for the completion of each phase of the work is established. (iv) ensuring that student is given timely advice about style requirements and about the mechanics of presenting a thesis. (v) ensuring compliance with any legal, professional, ethical or safety guidelines associated with the project. (vi) identifying and helping student acquire any missing skills for his/her research. 12. The above mentioned responsibilities of Guide are only a few apart from several other responsibilities including helping out a research student even to initiate appropriate steps to register for intellectual property for the work that the student has done. 13. From the above mentioned responsibilities, it is also clear that the Research Guide/Research Supervisor is also a Mentor to the Research Scholar. Though the Ld. Counsel for the Writ Petitioners has submitted voluminous material running into several hundreds of pages, suffice it to state that emphasis in each and every Article/Literature is to highlight the importance of a Research Guide/Research Supervisor in terms of the role and responsibilities of such Guides. 14. For the present purpose wherein all the Writ Petitioners have already completed their thesis, it would be necessary to examine whether the presence of a Research Guide/Research Supervisor in the capacity of Internal Examiner is not only important but indispensible. 14. For the present purpose wherein all the Writ Petitioners have already completed their thesis, it would be necessary to examine whether the presence of a Research Guide/Research Supervisor in the capacity of Internal Examiner is not only important but indispensible. For this, the Principal Regulations issued by the Central Council of Homoeopathy has already been extracted which imposes an indispensable mandate that the Supervisor (Guide) or Co-Supervisor (Co-Guide) “shall be” one of the Examiners. On perusal of the material submitted by the Ld. Counsel for the Writ Petitioner which is in the form of various Articles and Regulations issued by the University Grants Commission, these Guidelines are unequivocally indicating the indispensible requirement of the presence of the Research Guide as one of the Internal Examiner during the time of Oral General Comprehensive Examination (viva voce). 15. The Draft University Grants Commission (Minimum Standards and Procedures for Award of Ph.D. Degree) Regulations, 2022 issued by the University Grants Commission has been supplied by the Ld. Counsel for the Writ Petitioners. The Regulation No. 9 deals with Evaluation and Assessment Methods, minimum standards/credits for award of the Ph.D. degree, etc. The relevant Regulations are extracted herein-below: “9.4 The thesis shall be submitted together with an originality report produced by an anti plagiarism software application. The supervisor (and co-supervisor, if there is any) shall receive an originality report on the whole text of the thesis and shall take this report into account in the evaluation on the submission. 9.6 The Ph.D. thesis submitted by a research scholar shall be evaluated by his/her Research Supervisor and at least two external examiners, who are experts in the field and not in employment of the Institution. Examiner(s) should be academics with a good record of scholarly publications in the field. Out of the two external examiners, one must be from out of the state in which the institution is located. Where possible, one of the external examiners may preferably be chosen as a distinguished academician, not below the rank of Professor or equivalent, from outside India. The viva-voce examination based, among other things, on the critiques given in the evaluation report, shall be conducted by the Research Supervisor and at least one of the two external examiners and shall be open to be attended by Members of the Research Advisory Committee, all faculty members of the Department, other research scholars and other interested experts/researchers. The viva-voce examination based, among other things, on the critiques given in the evaluation report, shall be conducted by the Research Supervisor and at least one of the two external examiners and shall be open to be attended by Members of the Research Advisory Committee, all faculty members of the Department, other research scholars and other interested experts/researchers. 9.7 If the research results of the thesis constitute new possible things for the protection of intellectual property rights (IPRs), the Ph.D. candidate and Supervisor shall inform the University or the Research Advisory Committee about the matter. In this case, the Ph.D. candidate, with the consent of the Supervisor, may request that the submitted dissertation be treated discreetly before the thesis is submitted for assessment, until the defence/viva-voce. The IPR cell of the competent body of the university designated for the purpose shall conduct the procedure for legal and commercial protection of research results, in accordance with the relevant Regulations.” 16. The hand book for P.G. students relating to M.D.(Homoeopathy) Syllabus amended and issued on 02.08.2016 by the Dr. NTR University of Health Sciences, Vijayawada, Andhra Pradesh also deal with the submission of dissertation etc. Part II of the said Regulation deal with Homoeopathy Examinations (Speciality Subject Matters). The said Homoeopathy Examinations are for the following subjects: (1) M.D. (HOM) MATERIA MEDICA (2) M.D. (HOM) HOMOEOPATHIC PHILOSOPHY (3) M.D. (HOM) REPERTORY (4) M.D. (HOM) PHARMACY 17. The “Note” below in Part II of the Regulation assumes importance, which is as under: “1. NB The student shall be declared pass if he gets 50% marks separately in theory and in practical including viva-voce examination along with 50%aggreagate in each subject. 2. One practical/clinical examination, including viva-voc, in the subject of speciality, to set the candidates acumen and his ability and working knowledge in the practice of the specialty and there shall be four examiners together, including one supervisor [guide] in the subject, for examination the candidate. 3..................” (Emphasis supplied) 18. The above mentioned Regulations of the Andhra Pradesh issued by Dr. NTR University of Health Sciences have also laid down method of conducting practical and oral examinations in M.D.(HOM) Part-II in Speciality Subjects, insofar as Examiners are concerned, it is clearly stated as under: “EXAMINERS: 1. The criteria for the examiner shall be the same as of the guide. 2. The above mentioned Regulations of the Andhra Pradesh issued by Dr. NTR University of Health Sciences have also laid down method of conducting practical and oral examinations in M.D.(HOM) Part-II in Speciality Subjects, insofar as Examiners are concerned, it is clearly stated as under: “EXAMINERS: 1. The criteria for the examiner shall be the same as of the guide. 2. A panel of guides/examiners shall be prepared by the university and submitted to the Central Council of Homoeopathy for approval. 3. One of the examiners out of the panel shall be guide (emphasis supplied). 4. At least 50% of the examiners shall be external examiners.” 19. Notification issued by University Grants Commission (Ministry of Human Resource Development) concerning minimum Standards and Procedures for award of M.Phil./Ph.D. degrees in which Regulation 6.6 indicate that retired Professors can act as Guide and Co-Guide. Regulation No. 6.6 issued by the UGC is as under: “6.6 University teachers after superannuation may continue as co-guides for research students with the consent of the concerned authorities. Retired Professors holding an official position (such as Professor Emeritus/Distinguished Professor/Scientist Emeritus) may continue as Supervisors till they continue in the official position. Later they may act as a Co- Supervisors with the concurrence of the Research Committee and the new Research Supervisor.” 20. It is also indicated in some of the Guidelines that a Research Guide/Research Supervisor can be changed during the initial stages of commencement of research, but in situations where the research has advanced, except under extraordinary circumstances which are on account of either death or in capacity, the role and responsibility of Research Guide/Research Supervisor shall continue until completion of Oral General Comprehensive Examination (viva voce). Thus, making it indispensible about the role of the Guide as Internal Examiner during the Oral General Comprehensive Examination, this Court would reiterate the fact that the literature speaking about indispensability of the Guide during the conduct of Oral General Comprehensive Examination (viva voce). 21. It is a common practice in the academic circles that the students/scholars who pursue certain postgraduate degrees, M.Phils and Ph.Ds are placed under Research Guides/Research Supervisors. Such Research Guides are the Professors who are there to perform multiple tasks. 21. It is a common practice in the academic circles that the students/scholars who pursue certain postgraduate degrees, M.Phils and Ph.Ds are placed under Research Guides/Research Supervisors. Such Research Guides are the Professors who are there to perform multiple tasks. They act as Guides to guide each of the pupil/scholar pursuing the respective research topic in helping them to choose a topic of research, guiding them to collect relevant material, guiding them to analyse the material, guiding them to formulate hypothesis, guiding them to correlate the theory and the empirical data collected by the pupil/scholar in testing the same by the hypothesis which was initially formulated and the analysis or the evaluation leading to conclusions/ inferences. 22. Therefore, at higher levels of education, role of a Research Guide/Research Supervisor is well recognised as an indispensible necessity without whose guidance a pupil/scholar will not be able to complete his targeted thesis or research. A Research Guide has a profound presence and participation at every stage i.e. from the time that he is appointed as a Research Guide/Research Supervisor upto the completion of Oral General Comprehensive Examination/viva voce. Role of a Research Guide/Research Supervisor, as contemplated under the Regulations, to act as one of the Internal Examiners is not just a casual prescription in the Regulation. The role of a Research Guide/Research Supervisor as an Internal Examiner has been conceived as absolutely indispensable under a well founded reasoning and logic, and rightly so. The Research Guide/Research Supervisor as an Internal Examiner would clear the doubts raised even by the External Examiners as regards the scope of research work (both – theoretical and empirical), method and methodology adopted by the researcher/student under him. This indicates that the role of a Research Guide/Research Supervisor as an Internal Examiner is to bridge the gap between the doubts raised by the External Examiners and Researcher Scholar. This goes without saying that the role of a Guide as an Internal Examiner, nevertheless becomes indispensible and this Court would take a judicial note of this indispensability. 23. It appears from the facts that (Prof.) Dr.D.Ch.Narasimhulu, who has served as a Research Guide/Research Supervisor to the Writ Petitioners has attained the age of superannuation by 30.06.2021. This goes without saying that the role of a Guide as an Internal Examiner, nevertheless becomes indispensible and this Court would take a judicial note of this indispensability. 23. It appears from the facts that (Prof.) Dr.D.Ch.Narasimhulu, who has served as a Research Guide/Research Supervisor to the Writ Petitioners has attained the age of superannuation by 30.06.2021. This is the reason that is being projected by the Respondents about their inability, as per Regulations, for appointing (Prof.) Dr.D.Ch.Narasimhulu as Internal Examiner even for the limited purpose of practical examinations where the External Examiner and the Internal Examiner would evaluate the research work that has been concluded by the pupil/scholar under the prolonged and able guidance of the Guide who is also one of the Internal Examiner out of two Internal Examiners. CONCLUSION: 24. Having considered these circumstances, this Court is of a considered opinion that the reasons shown by the Official Respondents for not continuing (Prof.) Dr.D.Ch.Narasimhulu cannot be sustained. 25. In view of the above discussion, this Court is of the opinion that the grievance raised by the Writ Petitioners, which is in the nature of an apprehension, is absolutely justified. In the opinion of this Court, this can be resolved by directing the Official Respondents to continue (Prof.) Dr.D.Ch.Narasimhulu, who was the erstwhile Guide of the Writ Petitioners to act as one of the two Internal Examiners during the conduct of the viva voce. The role of (Prof.) Dr.D.Ch.Narasimhulu shall be limited to the research guidance rendered and therefore he shall act as an Internal Examiner. The Respondents are directed to correspond with (Prof.) Dr.D.Ch.Narasimhulu and request him to be the Internal Examiner only for the limited purpose of attending the viva-voce examination as an Internal Examiner in which the Writ Petitioners would participate. Since (Prof.) Dr.D.Ch.Narasimhulu has now superannuated, it shall be incumbent on the Official Respondents to extend all facilities (remuneration, transport, attendant perquisites) on par with the External Examiners. This exercise shall be completed within a period of two weeks from today and conduct the viva-voce examination within a week thereafter. This direction is being given in view of the urgency expressed by the Writ Petitioners as regards their future prospects. 26. Accordingly, the Writ Petition is allowed in terms of observations and directions mentioned herein above. No order as to costs. 27. Interlocutory Applications, if any, stand closed in terms of this Order.