Calcutta High Court (Appellete Side)
Dr. Kanchan Gaba vs The State Of West Bengal & Ors on 9 June, 2011
Author: Aniruddha Bose
Bench: Aniruddha Bose
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FORM No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE ANIRUDDHA BOSE
W.P. No. 20179(W) of 2010
With
W.P. No. 20178(W) of 2010
DR. KANCHAN GABA
Vs.
THE STATE OF WEST BENGAL & ORS.
Advocate for the petitioner: Mr. L. K. Gupta (Sr. Adv.)
Mr. I. Ahmed
Mr. V. Kr. Shahi
Mr. S. Chakraborty
Advocate for the UGC: Mr. Anir Kr. Gupta
Advocate for the College
Service Commission: Mr. P. R. Mondal
Judgment On: 09.06.2011
ANIRUDDHA BOSE, J.:-
1. The writ petitioners in both these proceedings hold the degree of Doctor of
Philosophy in law. The petitioner in W.P. No. 20179(W) of 2010 obtained her
Ph.D degree on 23 September 2008. The petitioner in W.P. No. 20178(W) of 2010
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obtained the degree on 26 June 2007. Both the petitioners are aspirants for the
posts of Lecturers in law in any law college in the State of West Bengal.
2. Selection to the aforesaid post, like selection to any other teaching job at
the college level in this state are done by the West Bengal College Service
Commission, constituted under the West Bengal College Service Commission Act,
1978. Such selection is usually made through a common selection test. The
procedure for such selection is contained in the West Bengal College Service
Commission (Manner of selection of Persons for Appointment to the posts of
teachers including Principals) Regulation 1980. The said regulation provides for
ascertaining the number of vacancies, advertisement of vacancies and thereafter
selection of candidates through a centralised recruitment process. A selection
test is ordinarily required to be cleared by the aspiring candidates, which at the
state level is commonly known as SLET. A similar test is also held at the national
level which is known as NET. I shall refer to these tests as entry test in the later
part of this judgement. The qualification for these posts are stipulated by the
State Government as per the specification of the University Grants Commission
(UGC), a statutory body constituted under the provisions of the University Grants
Commission Act 1956,to make provisions for the co-ordination and
determination of standards in different universities in India. The UGC has framed
the "UGC (Minimum Qualifications Required For The Appointment And Career
Advancement Of Teachers in Universities And Institutions Affiliated To It)
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Regulations, 2000 laying down the minimum qualification required for the posts
of Lecturers/Assistant Professors at the entry level of individual institutions.
3. Under the original UGC Regulation of 2000, candidates for such posts
having M.Phil or Ph.D. degree were exempted from appearing in the entry test.
There have been amendments from time to time of this Regulation narrowing the
scope of such exemption. The purpose of such amendments broadly have been to
confine such exemption to the candidates having Ph.D Degree till certain
specified year. So far as the present proceedings are concerned, the Regulation as
it stood in the year 2006 and 2009 is relevant. The said UGC Regulation was
amended in the year 2006 by a notification bearing no. F-1-1/2002(PS) Exemp.
dated 14th June 2006 which provided:-
"NET shall remain compulsory requirement for appointment as
Lecturer for those with post-graduate degree. However, the candidates
having Ph.D. degree in the concerned subject are exempted from NET
for PG level and UG level teaching. The candidates having M.Phil
degree in the concerned subject are exempted from NET for UG level
teaching only."
4. It appears that in awarding of Ph.D. Degrees, certain new standards or
norms were evolved by the UGC under the University Grants Commission
(minimum standards and procedure for award of Ph.D. Degree) Regulation 2009.
The UGC (Minimum Qualifications required for the appointment and Career
Advancement of teachers in Universities and Institutions affiliated to it)
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Regulation was amended again in the year 2009 and the amended Regulation,
which came into effect on 11 July 2009, contemplated certain alteration of
eligibility criteria for appointment to the posts of Lecturers. After this
amendment, the provision relating to appointment as Lecturers of candidates
having Ph.D. Degree was modified to the following effect:-
"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
Universities/Colleges/Institutions."
5. On 11 September 2009, an advertisement was published by the West
Bengal College Service Commission in the newspapers inviting applications from
potential candidates fulfilling the eligibility criteria for preparation of panels for
the posts of Lecturers of law in different colleges in West Bengal. The vacancies
advertised included several posts for lecturers in Surendranath Law College,
Kolkata and the case of the petitioners is that the vacancies included nine such
posts in the Surendranath Law College, Kolkata. The eligibility criteria specified
in the said advertisement referred to the Orders issued by the Government of
West Bengal, Higher Education Department bearing No. GO 756-Edn(CS) dated
28 November 2008 read with GO No. 627-Edn(CS) dated 17th June 1999 and also
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UGC notification dated 11th July 2009 to which I have referred to in the earlier
part of this judgment.
6. So far as the petitioners are concerned, they do not have their Ph.D degree
as per the new norms specified by the UGC in the year 2009. The petitioners
however submitted their applications for the posts in question on the strength of
their Ph.D Degree, as neither of them had cleared the entry test. In these
proceedings, their common grievance is that their applications were not being
considered. The reason for this, as submitted on behalf of the Commission is that
the petitioners lack the essential eligibility criteria for being considered for the
advertised posts, not having cleared their entry test as their Ph.D degree was not
under the new norms specified by the UGC in the year 2009. The petitioners'
case, argued by Mr. Gupta, learned Senior Counsel is that the vacancies for
which they wanted to be considered had been sanctioned before the 2009
Amendment of the UGC Regulation came into effect and as such the eligibility
criteria for these vacancies ought to be guided by the UGC Regulation of 2006. It
is his contention that the 2009 Regulation is prospective in operation and the
provisions of this Regulation as amended in the year 2009 cannot be applied to
such vacancies. If that is the position of law, then the petitioners would not have
been required to undergo the entry test and would have been considered by the
Commission on the strength of their Ph.D Degree.
7. It is not in dispute that the State Government had approved altogether
nine vacancies in the posts of lecturers of Surendranath Law College prior to the
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UGC regulation of 2009 came into effect on 11 July 2009. In W.P. No. 20178(W)
of 2010, copies of two memorandums issued by the Higher Education
Department of the Government of West Bengal dated 17th January, 2008 and
23rd June, 2009 have been annexed, (marked "P6"), recording sanction of four
and five teaching posts of lecturers respectively in the said college. By a
communication bearing reference no. Sncl/90/07-08 dated 29th February 2008,
the college requested the Commission to take steps for filling up these four posts.
A copy of this letter was produced before me by Mr. Mondal, learned Counsel for
the Commission. As per clause 3 of the (West Bengal College Service Commission
(Manner of selection of Persons for Appointment to the posts of teachers
including Principals) Regulations, 1980 (the 1980 Regulations), it is incumbent
upon the Commission to ascertain on the 1st of April every year the vacancy
position from each college and it is submitted on behalf of the petitioners that the
Commission did not take into account these vacancies when they accrued, and
no step was taken to fill up these vacancies prior to issue of the advertisement on
11 September 2009. It is also the admitted position that in the year 2008 itself,
on 5th December a recruitment process was initiated by the College Service
Commission, but so far as Calcutta University zone is concerned, in the subject
of law, only three vacancies were advertised. Two of those vacancies were in SC
category whereas one was in the ST category. The second set of vacancies in five
posts was reported by the college authorities to the Commission on 19th August,
2009.
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8. In support of his submissions that vacancies accruing on a particular date
would be governed by the recruitment rule prevailing on that date, Mr. Gupta
relied on two decisions of the Supreme Court in the cases of A. Monaharan &
Ors. Vs. Union of India & Ors. reported in (2008) 3 SCC 641 and Arjun Singh
Rathore & Ors. Vs. B. N. Chaturvedi & Ors. reported in (2007) 11 SCC 605.
9. It is further case of the petitioners that the UGC themselves had sought to
retain the exemption for candidates having Ph.D degree without making
distinction between those who obtained such degree as per the new regulation of
2009 and those who obtained it earlier. In this regard, the resolutions of the UGC
taken in their 471st and 472nd meeting held on 12 August and 22 September
2010 were referred to. Mr. Gupta has brought to my notice copies of the minutes
of 471st and 472nd meetings of the UGC. In the 471st meeting of the UGC held on
12th August,2010, it was resolved, as per item no. 2.08 of the minutes of the said
meeting;-
"The Commission examined the matter regarding applicability of the
UGC (Minimum Qualifications required for the appointment and Career
advancement of teachers in Universities and Institutions affiliated to it
- 3rd amendment) Regulations, 2009 and UGC (Minimum Qualifications
for appointment of teachers and other Academic Staff in Universities
and Colleges and Measures for the Maintenance of Standards in
Higher Education) Regulations 2010.
After considering the agenda and above mentioned Regulations, the
Commission resolved as under:-
(i) UGC (Minimum Qualifications required for the appointment and
Career Advancement of teachers in Universities and Institutions
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affiliated to it - 3rd amendment) Regulations, 2009 has come into
effect on 11th July, 2009.
(ii) UGC (Minimum Qualifications for appointment of teachers and
other Academic Staff in Universities and Colleges and Measures
for the Maintenance of Standards in Higher Education)
Regulations 2010 has come into effect on 30th June, 2010.
(iii) 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 such candidates who had registered themselves for Ph.D
degree on or before 31st December, 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.
Since proviso to UGC (Minimum qualifications required for the
appointment and Career Advancement of teachers for
Universities and Institutions affiliated to it) Regulations 2000
remained in force until the notification of UGC (Minimum
Qualifications for appointment of teachers and other Academic
Staff in Universities and Colleges and Measures for the
Maintenance of Standards in Higher Education) Regulations
2010, therefore, all applications received by UGC seeking
exemption from requirement of NET may be considered and
disposed off in accordance with the prevalent
norms/regulations.
The Commission further decided that this may be sent to the
Government of India for their concurrence in view of earlier
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Order No. F.5-4/2005-U.I (A) dated 30th March, 2010 issued
under Section 20(1) of the UGC Act, 1956."
10. This resolution was confirmed in the 472nd meeting of the UGC held on
27th September 2010, with certain modifications. It was recorded in the minutes
of the said meeting:-
"The following modification was suggested in the first paragraph at
Page 10 relating to Item No. 2.08.
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."
11. Under the provisions of the University Grants Commission Act, 1956, the
UGC is required to be guided by the directions on questions of policy by the
Central Government, and the response of the Central Government to these
resolutions was negative. Mr. Mondal referred in this regard to a communication
of Sunil Kumar, Additional Secretary (HE) to the Government of India dated 3rd
November 2010 addressed to the Secretary in Charge, UGC. In this
communication, it has been stated:-
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"I desire to draw your attention to your letter addressed to the
Secretary, HE dated 23rd September, 2010 in which a request has
been made to the Government to accord concurrence to the resolution
made by the Commission on agenda item no. 2.08 in its 471st meeting
held on 2.8.2010.
In this connection, I am desired to convey to you that said resolutions
are against the letter and spirit of the regulations issued by the UGC
from time to time regarding compulsory NET/SLET qualifications for
appointment to lecturers/Asst. Professors. The above mentioned
resolution perhaps does not take into account the fact that
appointments, if any, pursuant to the date of coming into force of these
regulations are bound to be prospective only. Appointments can never
be made with retrospective dates. Therefore, exempting the candidates
from NET/SLET requirement, who are going to be appointed or have
been appointed after 11th July, 2009 would be violative of the UGC
(Minimum qualifications required for the appointment and Career
Advancement of teachers for Universities and institutions affiliated to
it) (3rd amendment) Regulations, 2009.
Regarding, the plea that since proviso to UGC (Minimum qualifications
required for the appointment and Career Advancement of teachers for
Universities and institutions affiliated to it) Regulations, 2010
remained in force till the notification of UGC (Minimum qualifications
for appointment teachers and other Academic Staff in Universities and
Colleges and measures for Maintenance of Standards in Higher
Education) Regulations, 2010, and hence UGC can consider and
dispose of the applications received seeking exemption from NET
requirement, again is not tenable. This resolution does not take into
account the UGC (Minimum qualifications required for the appointment
and Career Advancement of teachers for Universities and institutions
affiliated to it) (3rd amendment) Regulations, 2009 at all, wherein a
blanket ban was imposed on non-NET/SLET qualified candidates.
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Similarly, since by Commissions' own admission, the regulations are
prospective in nature and not retrospective, invoking the proviso to
UGC (Minimum qualifications required for the appointment and Career
Advancement of teachers for Universities and institutions affiliated to
it) Regulations, 2001 is clearly in-congruous. The present regulations
in force do not have any provisions for exemption of candidates who
are not NET/SLET qualified. In the above circumstances, I am desired
to draw your attention to and reiterate the directive issued under
Section 20(1) of the UGC, 1956 in making NET/SLET compulsory for
teaching positions as a policy relating to national purposes of
maintenance of standards of higher education."
12. The College Service Commission themselves appear to have consulted the
UGC on this issue, and they were advised by the UGC that appointments were to
be made as per the new regulation. This is contained in a letter of B. K. Singh,
Deputy Secretary to the UGC bearing no. F.1-1/2002(PS) Pt.file-1 addressed to
the Chairman of the Commission issued in the month of October 2009, the copy
of which was produced by Mr. Mondal. In this letter (the date of which is not
reflected in the copy), it has been stated;-
"With reference to your D.O letter No. F.01/Chmn-UGC/Chmn-CSC
dated 3rd July, 2009 on the subject cited above, I am to say that both
the above mentioned Regulations have been published in the Gazette
of India No. 28 dated 11th - 17th July, 2009 in part - III, section. Thus,
these UGC Regulations have come into force with their publication.
Therefore, the appointment may be made in accordance with these
Regulations & the new regulations has to be adopted by all
Universities and implemented with strict compliance."
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13. Mr. Mondal has submitted copy of another letter issued by a Joint
Secretary to the Higher Education Department of the State government
addressed to the Chairman of the Commission, dated 19th August,2009 in which
it has been stated:-
"In response to your letter under reference, I am directed to inform you
that:
A) Regarding point No. (1) - To abide by the order of the Hon'ble
Supreme Court.
B) Regarding point No. (2) - It is understood that the process of
interview has been kept on hold. The point in question has been
discussed and formal opinion of Senior Advocate including that of
Hon'ble Advocate General have been obtained. It has been opined
by Advocate General that the process of interview can be continued
as per regulations of UGC existing on the date of advertisement.
Hence, you are requested to resume the interview for selection of
lecturers for appointment in Government aided colleges."
14. Appearing on behalf of the College Service Commission, Mr. Mondal argued
against exempting the petitioners from the entry test. His first submission is that
at the time of applying for the post, the petitioners were well aware of the
restrictions which was specified in the advertisement itself. On this ground, he
submitted that the petitioners were estopped from making any objection as
regards the method of recruitment or the qualification specified for such
recruitment. Dealing with the authorities cited by Mr. Gupta, he submitted that
in the present case, the issue is qualification and not the process of recruitment.
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According to him, an aspirant for a particular post could claim to be guided by
the law prevailing on the day the post fell vacant, but so far as recruitments in
posts of this nature are concerned, the date of advertisement would be the
relevant date on the question of qualification.
15. Mr. Mondal has resisted the writ petition on two other grounds, the first of
these being that the Court ought not to prescribe qualifications or alter the same
in respect of a particular candidate. (All India Technical Education vs.
Surinder Kumar Dhawan [{2009} 11 SCC 726]. The second ground is that a
recruitment process cannot be altered midway [Secy. A. P. Public service
Commission vs B. Swapna and Others. [{2005} 4 SCC 154] and Mohd. Sohrab
Khan vs. Aligarh Muslim University [2009(4) SCC 555].
16. The admitted position in these two proceedings is that when the initial four
vacancies were reported to the College Service Commission, then the petitioners'
Ph.D. degrees would have qualified them for exemption from the entry test. The
petitioners have referred to nine vacancies in the Surendranath Law College
itself. All these vacancies were sanctioned before the changed regulation of 2009
came into effect. But the College Service Commission took time to insert the
advertisement which, if the argument of the Commission is accepted, would
disqualify the petitioners for being considered in the said posts without them
clearing the entry test. In the event these posts were filled up at the point of time,
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they became vacant, then the Ph.D Degree of the petitioners would have entitled
them for exemption from the entry test.
17. When the advertisement for filling up these vacancies was published, the
changed Regulation had become operational. Relying on the judgment of Arjun
Singh Rathore (supra), Mr. Gupta has argued that since vacancies arose before
coming into operation of the new regulation, the petitioners' qualification at the
point of time would be the relevant qualification.
18. Position of law is clear on the point that the 2009 Regulation is prospective
in its operation. The question which falls for determination in these two
proceedings is whether the vacancies which were sanctioned before the 2009
Regulation became operational would be covered by the earlier regulation, or the
relevant date for determining the applicability of the 2009 Regulation would be
the date on which the advertisement is published.
19. In the case of A. Manoharan (supra), it was held by the Supreme Court,
dealing with the question of applicability of a regulation in respect for
recruitment in respect of past vacancies:-
"Furthermore, the Regulations have been amended only with effect
from 11-8-2004. It cannot be have a prospective effect. It cannot be
applied retrospectively. Any vacancy which has arisen prior to coming
15
into force of the same amended Regulations must be filled up in terms
of the law as was existing prior thereto."
The view was taken by the Supreme Court in the case of Arjun Singh
Rathore (supra).
20. In both these decisions, however, the vacancies involved were in
promotional posts and not in respect of posts for which recruitment was being
conducted through an open selection process. A Division Bench of this Court in
the case of Snehansu Jas Vs. State of West Bengal & Ors. [2001 (2) CLJ 558]
examined a similar issue concerning recruitment in the post of a Headmaster in
a High School. In that case, permission to fill up the vacancy was given in the
year 1992. At that point of time, the managing committee of a school was
empowered to effect recruitment under the subsisting procedure, which is
commonly known as the Management Rule, 1969. The post however was not
filled up till the year 2000, after the managing committee of the school filed a writ
petition. That writ petition was disposed of on 25th April 2000 with a direction
upon the Secretary, Education Department of the State Government to consider
the writ petition as a representation and take a decision thereon. By that time
the recruitment rule was changed and a centralized recruitment process was
introduced under the provisions of the West Bengal School Service Commission
Act, 1997. Question arose as to whether the 1969 Rule should guide such
appointment or it would be the procedure prescribed by the 1997 Act. There was
divergence of views of this Court on this issue and the matter was referred to a
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Division Bench of this Court. It was held by the Division Bench that the rule
prevailing on the day the selection process commenced for a particular post
would be the applicable rule. It was further opined by the Division Bench in that
decision that the selection process shall be deemed to have commenced if the
posts were advertised and candidates were called for interview. If the rules for
recruitment were changed at that stage, it was held, then the rule earlier
prevailing would be the applicable rule.
21. This is the stand of the Commission in these two proceedings and this
judgement has been relied on by the learned Counsel appearing on their behalf.
Another Division Bench of this Court in a later decision, Secretary of the
Managing Committee, Kalinagar Girls' High School, Nadia vs Archana
Ghosh (Saha) & Ors., [2010(3) CHN 940] took a different view but in course of
hearing Mr. Mondal apprised this Court that operation of the said judgement has
been stayed by the Supreme Court of India. As such I am not considering the
ratio of this decision in this judgement. On behalf of the petitioners however it
has been submitted that the decision the case of Snehansu Jas was delivered
considering the provisions of the Management Rules of 1969 whereas the subject
controversy is in respect of the 1980 Regulations of the College Service
Commission.
22. In the facts of the subject proceedings, however, in my opinion the ratio of
the judgement of the Division Bench of this Court in the case of Snehansu Jas
would not be applicable for determining the question of applicability of the 2009
17
Regulation. The decision of Snehansu Jas was delivered on the ground, among
others, that the managing committee did not have vested right for appointing a
staff as per a particular rule, and only a qualified permission was given to fill the
vacancy among the scheduled caste candidates in that case. In the present
proceedings, the qualification criteria has been altered to the detriment of the
petitioners after the vacancies were sanctioned by the educational authorities.
Neither the petitioners nor the college authorities can be faulted for delay in
filling up the subject posts. At least for four vacancies, the college reported to the
Commission in the year 2008 itself and no general category post was advertised
before the Regulation 2009 became operational.
23. I accept the submission of Mr. Gupta that under the 1980 Regulations,
selection process for the post shall be deemed to have commenced when the
vacancies are sanctioned. Under clause 3 of the said Regulation, it is the duty of
the Commission to ascertain the vacancy position from the individual colleges on
1st of April every year. It is thus the duty of the Commission to ascertain the
vacancies advertise the posts in the leading newspapers of the state. Approval to
a post is the starting point of the recruitment process and the selection process
commences immediately on such approval being granted. Under the said
Regulations of 1980, there is no provision for reporting of vacancies to the
Commission by the individual colleges and it is the duty of the Commission to
ascertain the vacancy position and conduct the process of selection.
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24. In any event, the decisions of the Supreme Court delivered in the cases of
Arjun Singh Rathore (supra) and A. Manoharan (supra) both lay down, as a
proposition of law, that the rule prevailing on the date vacancies in respect of a
particular post would guide the recruitment process to such posts. I also do not
think the fact that these two authorities relate to promotional posts and not a
primary post should call for a different approach. In the case of Snehansu Jas
(supra), no such distinction was made and the Division Bench applied the ratio of
judgements delivered in cases relating to promotional posts as well, being the
judgement of the Supreme Court in the case of Y.V. Rangaiah vs. J. Sreenivasa
Rao reported in AIR 1983 SC 852.
25. On behalf of the Commission, copies of different communications were
relied upon to demonstrate that the Commission was acting as per the advise of
the appropriate government. As regards the resolutions of the UGC, the Central
Government did not approve the same. But when a matter is brought before the
Court, constructions given to a rule by the administrative authorities cannot bind
the Court. In the case of Commissioner of Central Excise, Bolpur vs. Ratan
Melting & Wire Industries[ (2008) 13 SCC 1, a Constitution Bench of the
Supreme Court held:-
"7. Circulars and instructions issued by the Board are no doubt
binding in law on the authorities under the respective statutes, but
when the Supreme Court or the High Court declares the law on the
question arising for consideration, it would not be appropriate for the
court to direct that the circular should be given effect to and not the
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view expressed in a decision of this Court or the High Court. So far as
the clarifications/circulars issued by the Central Government and of
the State Government are concerned they represent merely their
understanding of the statutory provisions. They are not binding upon
the court. It is for the court to declare what the particular provision of
statute sys and it is not for the executive. Looked at from another
angle, a circular which is contrary to the statutory provisions has
really no existence in law."
26. Mr. Mondal had also contested the writ petitions on the ground that
selection process for particular posts could not be changed midway. The two
authorities cited in support of his submission on this point however is factually
distinguishable. In the case of Secretary, A.P. Public Service Commission
(supra), a panel, the normal life of which was one year, in substance was directed
to be frozen by the authorities, which was permissible under the rule. A
candidate kept in the waiting list wanted to be engaged in fresh vacancies
accruing within the one-year period. Independent advertisement was issued for
filling up the fresh vacancies, and the petitioner's claim to be appointed on the
strength of her being in the waiting list was rejected as the Supreme Court found
that the waiting list stood frozen and no right could be founded on the basis of
such list. The case of Mohd. Sohrab Khan (supra) relates to a dispute as to
whether qualification in a particular subject is equivalent to the subject in which
specified qualification is necessary or not. This judgement was rendered in that
context.
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27. The argument of the respondents that selection criteria ought not to be
changed midway through the selection process was advanced on behalf of the respondents based on equity. The case of the respondents on this point is that if such alteration is permitted, then other candidates having qualification similar to that of the petitioners would be deprived of their right to participate in the selection process. But on this ground alone, I cannot reject the claim of the petitioners, which I otherwise find sustainable in law. If in respect of a particular selection process certain criteria is laid down which offends certain vested right of a particular set of candidates and they come to the Court to establish their claim based on such right, Court will not reject their claim simply because other candidates have not raised their grievance before the Court.
28. The decision of the Supreme Court in the case of Surinder Kumar Dhawan [(2009) 11 SCC 726] was cited by Mr. Mondal to dissuade the Court from interfering in educational matters. It was urged that Court cannot prescribe what would be the qualification for a particular post. But that is not the issue in these proceedings and I have not been asked to change the qualification criteria for a particular post which has been prescribed by the selecting body. The question involved here is the date from which a particular regulation shall be applicable. This issue relates to construction of statutory instruments, and such an exercise comes within the jurisdiction of the Court. None of the authorities cited by the respondents divest the Court of the jurisdiction to adjudicate on such a dispute.
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29. As regards the submission of Mr. Mondal that the petitioners had participated in the selection processes without raising any objection on such stipulation, in my opinion, since the stipulation itself cannot be applied to the petitioners, their participation in the selection process by itself cannot nonsuit them. Since under the law, the stipulation relating acquisition of Ph.D. Degree in a particular manner cannot disentitle them from the benefits of certain exemptions, delay in approaching the Court would not deprive them from asserting their right. It is not a case of misrepresenting their educational qualification. There is no such allegation against them. While considering this aspect, I have also considered the nature of disqualification on the strength of which the petitioners are sought to be deprived from the benefits of such exemption. It is not a case where the petitioners lack the qualification of Ph.D. Degree. The petitioners continue to be holders of valid Ph.D. Degrees but from the date on which the advertisement was published only candidates having acquired Ph.D. Degrees through a different mode have been made eligible for such exemption. The petitioners do not suffer from any essential or fundamental disqualification for being exempted from such entry tests.
30. Mr. Mondal's further argument was that the decisions of the Hon'ble Supreme Court in the cases of Y. V. Rangaiah (supra), State of Rajashthan Vs. R. Dayal (supra) and Arjun Singh Rathore (supra), the issue was procedure for recruitment and not qualification. I do not think such distinction can be made while applying the ratio of these judgments in the facts of these two cases. 22
31. In these two cases, the procedure for filling up the vacancies which accrued prior to coming into operation of the 2009 Regulation ought to be guided by the rule prevailing on the day the vacancies occurred and not on the day the vacancies are sought to be filled up. In any event, in the facts of the present two cases, I find that there is no fundamental disqualification as the petitioners are holders of valid Ph.D. Degrees. I accordingly reject this argument of Mr. Mondal.
32. Both the writ petitions accordingly stand allowed. Let the cases of the petitioners be considered for appointment to the posts of Lecturers of law in respect of vacancies which accrued prior to the date on which the 2009 Regulations became available treating their Ph.D. Degrees to be valid Ph.D. Degrees which would exempt them from having to clear the entry test. The Commission and the educational authorities shall device appropriate procedure for dealing with their applications in the peculiar circumstances of their cases.
33. There shall however be no order as to costs.
34. Urgent Photostat certified copy of this judgment be supplied to the learned Advocates for the parties if applied for with necessary formalities as expeditiously as possible.
(ANIRUDDHA BOSE, J.)