Allahabad High Court
Ms. Priti Upadhyay vs Banaras Hindu University Varanasi And 3 ... on 12 March, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:44039 A.F.R. Reserved on : 04.03.2024 Delivered on : 12.03.2024 Court No. - 34 Case :- WRIT - A No. - 11734 of 2023 Petitioner :- Ms. Priti Upadhyay Respondent :- Banaras Hindu University Varanasi And 3 Others Counsel for Petitioner :- Ishwar Kumar Upadhyay,Sanjeev Singh Counsel for Respondent :- Dhananjay Awasthi,Hem Pratap Singh,Pooja Agarwal,Sudhanshu Srivastava Hon'ble Ajit Kumar,J.
1. Heard Sri Sanjeev Singh, learned counsel for the petitioner, Ms. Pooja Agarwal, learned counsel for the University and Sri Sudhanshu Srivastava, learned counsel for the Indian Council of Agricultural Research.
2. Petitioner before this Court questions the rolling advertisement no. 01 of 2023-24 dated 28.06.2023 issued by Banaras Hindu University (6th respondent) in so far as it provides for 4 years Honor's Bachelor's Degree as an essential qualification for the post of Assistant Professor in the Department of Genetics and Planned Breeding.
3. The argument is two fold: (i) for the purpose of appointment on the post of Assistant Professor in a recognized University at Master's level the minimum qualification prescribed for by the University Grants Commission through its guidelines would prevail; and (ii) while the University Act have prescribed for additional qualification as a preferential qualification but could not have modified the minimum qualification prescribed as eligibility for the post in question.
4. In support of his first argument, learned Advocate has taken the Court through the UGC Regulations, 2018 that prescribed minimum qualification for the post of Assistant Professor, Associate Professor and Professor in the Universities and Colleges running Bachelor's and Master's Courses and Senior Professors in the Universities on the basis of merit and through an All India Advertisement. Regulation 1 of the UGC Regulations states that it shall apply to Universities and College Teachers and cadre of Librarian etc. while regulation 1.1 provides norms of standards for teaching positions in various disciplines that includes Agriculture in the University. Regulation 3 provides for recruitment and qualifications and regulation 3.4 and 4.1(i) provide for minimum marks that a candidate must have and also the minimum degree with minimum percentage of marks. Regulation, 1, 1.1, 3.1, 3.2, 3.4, 3.4(i), 3.5, 3.6, 4, 4.1, 4.1(I), A(i) and (ii) are reproduced hereunder:
Minimum qualifications for the post of Senior Professor, Professors and Teachers, and other Academic Staff in Universities and Colleges and revision of pay scales and other Service Conditions pertaining to such posts.
1.0 Coverage These Regulations are issued for minimum qualifications for appointment and other service conditions of University and College teachers and revision of pay scales Directors of Physical Education and Sport for maintenance of standards in higher education and revision of pay-scales.
1.1 For the purposes of direct recruitment to teaching posts in disciplines relating to university and collegiate education, interalia in the fields of health, medicine, special education, agriculture, veterinary and allied fields, technical education, teacher education, norms or standards laid down by authorities established by the relevant Act of Parliament under article 246 of the Constitution for the purpose of co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions, shall prevail.
i. Provided that where no such norms and standards have been laid down by any regulatory authority, UGC Regulations herein shall be applicable till such time as any norms or standards are prescribed by the appropriate regulatory authority.
ii. Provided further that for appointment to the post of Assistant Professor and equivalent positions pertaining to disciplines in which the National Eligibility Test (NET), conducted by the University Grants Commission or Council of Scientific and Industrial Research as the case may be, or State Level Eligibility Test (SLET) or the State Eligibility Test (SET) conducted by bodies accredited by the UGC for the said purpose, qualifying in NET/SLET/SET shall be an additional requirement.
1.2 Every university of institution deemed to be University, as the case may be, shall as soon as may be, but not later than within six months of the coming into force of these Regulations, take effective steps for the amendment of the statutes, ordinance or other statutory provisions governing it, so as to bring the same in accordance with these regulations.
2.0 Pay Scales, Pay Fixation, and Age of Superannuation Pay scales as notified by the Government of India from time to time will be adopted by the University Grants Commission.
2.1 Subject to the availability of vacant positions and fitness, teachers such as Assistant Professor, Associate Professor, Professor and Senior Professor only, may be re-employed on contract appointment beyond the age of superannuation, as applicable to the concerned University, college and Institution, up to the age of seventy years.
Provided further that all such re employment shall be strictly in accordance with the guidelines prescribed by the UGC, from time to time.
2.2 The date of implementation of the revision of pay shall be 1st January, 2016.
3.0 Recruitment and Qualifications 3.1 The direct recruitment to the posts of Assistant Professor, Associate Professor and Professor in the Universities and Colleges, and Senior Professor in the Universities, shall be on the basis of merit through an all-India advertisement, followed by selection by a duly-constituted Selection Committee as per the provisions made under these Regulations. These provisions shall be incorporated in the Statutes/Ordinances of the university concerned. The composition of such a committee shall be as specified in these Regulations.
3.2 The minimum qualifications required for the post of Assistant Professor, Associate Professor, Professor, Senior Professor. Principal, Assistant Librarian, Deputy Librarian, Librarian, Assistant Director of Physical Education and Sports, Deputy Director of Physical Education and Sports and Director of Physical Education and Sports. shall be as specified by the UGC in these Regulations.
3.3 I. The National Eligibility Test (NET) or an accredited test (State Level Eligibility Test SLET/SET) shall remain the minimum eligibility for appointment of Assistant Professor and equivalent positions wherever provided in these Regulations. Further, SLET/SET shall be valid as the minimum eligibility for direct recruitment to Universities/Colleges/Institutions in the respective state only:
Provided that candidates who have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degree) Regulation, 2009, or the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degree) Regulation 2016, and their subsequent amendments from time to time, as the case may be, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or any equivalent position in any University, College or Institution.
Provided further that the award of degree to candidates registered for the M.Phil/Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances/Bye-laws/ Regulations of the Institutions awarding the degree. All such Ph.D. candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/ Institutions subject to the fulfillment of the following conditions:
a) The Ph.D. degree of the candidate has been awarded in regular mode only;
b) The Ph.D. thesis has been awarded by at least two external examiners;
c) An open Ph.D. viva voce of the candidate has been conducted;
d) The candidate has published two research papers from his/her Ph.D. work out of which at least one is in a refereed journal;
e) The candidate has presented at least two papers, based on his/her Ph.D. work in conferences/seminars sponsored/funded/supported by the UGC/ICSSR/CSIR-or any similar agency.
The fulfilment of these conditions is to be certified by the Registrar or the Dean (Academic Affairs) of the University concerned.
II. The clearing of NET/SLET/SET shall not be required for candidates in such disciplines for which NET/SLET/SET has not been conducted.
3.4 A minimum of 55% marks (or an equivalent grade in a point-scale, wherever the grading system is followed) or the Master's level shall be the essential qualification for direct recruitment of teachers and other equivalent cadres at any level I. A relaxation of 5% shall be allowed at the Bachelor's as well as at the Master's level for the candidates belonging to Scheduled Caste/Scheduled Tribe/Other Backward Classes (OBC) (Non-creamy Layer)/Differently abled ((a) Blindness and low vision; (b) Deaf and Hard of Hearing, (c) Locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid-attack victims and muscular dystrophy; (d) Autism, intellectual disability, specific learning disability and mental illness; (e) Multiple disabilities from amongst persons under (a) to (d) including deaf-blindness) for the purpose of eligibility and assessing good academic record for direct recruitment. The eligibility marks of 55% marks (or an equivalent grade in a point scale wherever the grading system is followed) and the relaxation of 5% to the categories mentioned above are permissible, based only on the qualifying marks without including any grace mark procedure.
3.5 A relaxation of 5% shall be provided, (from 55% to 50% of the marks) to the Ph.D. Degree holders who have obtained their Master's Degree prior to 19 September, 1991.
3.6 A relevant grade which is regarded as equivalent of 55%, wherever the grading system is followed by a recognized university, at the Master's level shall also be considered valid.
3.7 The Ph.D. Degree shall be a mandatory qualification for appointment and promotion to the post of Professor.
3.8 The Ph.D. Degree shall be a mandatory qualification for appointment and promotion to the post of Associate Professor.
3.9 The Ph.D. Degree shall be a mandatory qualification for promotion to the post of Assistant Professor (Selection Grade/Academic Level 12) in Universities.
3.10 The Ph.D. Degree shall be a mandatory qualification for direct recruitment to the post of Assistant Professor in Universities with effect from 01.07.2021.
3.11 The time taken by candidates to acquire M.Phil. and/or Ph.D. Degree shall not be considered as teaching/ research experience to be claimed for appointment to the teaching positions. Further the period of active service spent on pursuing Research Degree simultaneously with teaching assignment without taking any kind of leave, shall be counted as teaching experience for the purpose of direct recruitment/ promotion. Regular faculty members upto twenty per cent of the total faculty strength (excluding faculty on medical/maternity leave) shall be allowed by their respective institutions to take study leave for pursuing Ph.D. degree.
3.12 Qualifications:
No person shall be appointed to the post of University and College teacher, Librarian or Director of Physical Education and Sports, in any university or in any of institutions including constituent or affiliated colleges recognised under clause (f) of Section 2 of the University Grants commission Act, 1956 or in an institution deemed to be a University under Section 3 of the said Act if such person does not fulfil the requirements as to the qualifications for the appropriate post as provided in the Schedule 1 of these Regulations.
4.0 Direct Recruitment 4.1 For the Disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication.
I. Assistant Professor:
Eligibility (A or B):
A.
i) A Master's degree with 55% marks (or an equivalent grade in a point scale wherever the grading system is followed) in a concerned/relevant/allied subject from an Indian University, or an equivalent degree from an accredited foreign university.
ii) Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC or the CSIR, or a similar test accredited by the UGC, like SLET/SET or who are or have been awarded a Ph. D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Awant of M.Phil Ph.D. Degree) Regulations 2009 or 2016 and their amendments from time to time as the case may be exempted from NET/SLET/SET:
Provided, the candidates registered for the Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances/Bye-laws/ Regulations of the Institution awarding the degree and such Ph.D. candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointemnt of Assistant Professor or equivalent positions in Universities/ Colleges/ Institutions subject to the fulfillment of the following conditions:
a) The Ph.D. degree of the candidate has been awarded in a regular mode;
b) The Ph.D. thesis has been evaluated by at least two external examiners;
c) An open Ph.D. viva voce of the candidate has been conducted:
d) The Candidate has published two research papers from his/her Ph.D. work, out of which at least one is in a refereed journal;
e) The candidate has presented at least two papers based on hischer Ph.D work in conferences/seminars sponsored/funded/supported by the UGC/ICSSR/ CSIR or any similar agency.
The fulfilment of these conditions it to be certified by the Registrar or the Dean (Academic Affairs) d the University concerned.
NET/SLET/SET shall also not be required for such Master's Programmes in disciplines for which NET/SLET/SET is not conducted by the UGC, CSIR or similar test accredited by the UGC, like SLET/SET.
5. A conjoint reading of the provisions as quoted above, minimum qualification that a candidate must possess to be appointed as Assistant Professor for all Universities and Colleges in various disciplines including Agriculture. All Universities have to follow the minimum qualification prescribed for.
6. The recruitment has to be made by advertisement the vacancy on All India basis and then selection has to be hold by a duly selected Committee constituted as per provisions made under the regulation. A candidate must possess minimum 55% marks both on Bachelor's Level and Master's Level subject to relaxation of 5%, if one holds a Ph.D. degree, but most have obtained Master's degree prior to 19.09.1991. Broad disciplines are Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education and Journalism & Mass Communication. Agriculture would equally be a discipline governed under the Regulations. For the post of Assistant Professor, one must have a Master's degree with 55% marks subject to relaxation applicable under regulation 3.5. A candidate must have cleared National Eligibility Test conducted by UGC or CSIR.
7. Now from the above, two things are cleared that one must have both Master's degree and Bachelor's degree with 55% marks subject to relaxation as provided to a Ph.D. holder who has done Master's degree prior to 19.09.1991.
8. The argument, therefore, is that since Master's degree in the subject in a concerned relevant or allied is required under the regulation, whether one has an Bachelor's degree with four years simple degree or four years Honor's degree or even three years degree would not make any difference and hence the respondent University was not justified in incorporating the provisions as an essential qualification of four years B.Sc. (Agriculture) or four years B.Sc. (Hons.).
9. This according to learned Advocate Mr. Sanjeev Singh, appearing for the petitioner is an additional qualification in modification to the UGC Regulations and therefore, are bad. He submits that as per the Universities own stand vide instruction no. 3 of the advertisement, the minimum qualification for appointment of teachers and other academic staff in the Universities and Colleges would be same as prescribed for under UGC Regulations, 2018. He submits that any additional quality parameters in order to promote merit and quality over and above UGC qualifications would only be applicable if the candidates are larger than the number of candidates to be called for interview as per clause 4 of the instructions. He therefore, submits that rule of preferential qualification is only with a purpose to short list the candidate to avoid a large number of candidate appearing in which may otherwise affect the quality in selection, but preferential qualification is a preferential qualification and cannot be a minimum eligibility qualification. He also submits that even the Ministry of Agriculture, Department of Agriculture Research and Education, Government of India, New Delhi vide its letter dated 02.08.2010 had clarified that UGC Regulations notified on 30.06.2010 providing for minimum qualification for appointment of teachers and other academic staffs in Universities and Colleges in the Higher Education and the norms issued by ICAR shall apply for teachers in Faculties of Agriculture and Veterinary Science. He submits that since the UGC Regulations themselves provide applicability of norms and regulations issued by ICAR for tachers in the Faculties of Agriculture and Veterinary Science, the ICAR regulations would have prevail had they been issued independent of the UGC Regulations in the sense that they provided different minimum qualification but since the Ministry of Agriculture itself decided to endorse the UGC regulations, 2018 and directed it to be adopted by the State Agriculture Universities, this only would be applied.
10. Countering the aforesaid submissions, learned Advocate appearing for the University Ms. Pooja Agarwal has argued that since post is Agriculture specific dealing with Agriculture Science, the University is justified in providing four years B.Sc. Course/ four years B.Sc. (Hons.) also along with M.Sc. (Agriculture) as a minimum qualification to promote merit and quality in the department of Agriculture in the Department of Genetics and Plant Reading relating to Agriculture Science. Ms. Pooja Agarwal submitted that even previously when the advertisement was published, the same qualification was prescribed and since there is a uniform pattern brought in the four years Bachelor's course now almost in All India basis, the employer correctly thought in its wisdom to provide it also as a minimum qualification. Ms. Pooja Agarwal has submitted that UGC prescribes for minimum qualification and does not bar to the employer from providing additional qualification or a higher qualification. The four years Agriculture Undergraduate degree course or four years Honor's course is only an additional qualification to the minimum qualification prescribed for and it cannot be said to be modifying the minimum qualification. She argued that the minimum qualification is a concept for laying down a bottom line and therefore, this parameter cannot be relaxed. She submitted that the UGC Guidelines that ask for a Bachelor's degree with 55% marks is sufficient to demonstrate that one must possess Bachelor's degree. Now to provide a particular Bachelor's degree with a particular standard and course cannot be said to be modifying the minimum qualification nor can it be said to be transgressing in any manner the authority of the UGC. She argued that had it been a case that University required less than 55% marks in Bachelor's level, it could have been said that University modified the minimum qualification but at the same time the University could have asked for a higher percentage of marks.
11. Meeting the argument relating to the letter dated 02.08.2010 issued by the Ministry of Agriculture, Department of Agriculture Research and Education, Government of India, New Delhi it is sought to be urged that this did not dilute the argument advanced by her either. She argued that the minimum qualification under the UGC Regulations have been accepted by the University and merely the University prescribes for four years course as a course one must have passed through or four years Honor's does not amount to modifying the minimum qualification. Since UGC itself provides 55% marks in the Bachelor's degree that a candidate must have, the University could have been provided equally whether to four years Agriculture Course or four years (Hons.) course. It was also argued by Ms. Pooja Agarwal that providing a qualification falls within the domain of the employer either by way of additional qualification or preferential qualification. The minimum standards and norms if are fixed by UGC, any enhancement thereof cannot be said to be in transgression of the authority vested in the employer. It was argued that the University was in a best position to assess its requirement and to prescribed qualification to suit that and therefore, this Court may not embark upon an inquiry as to the qualification prescribed by the University. She relied upon the authority of Supreme Court in the case of Dr. Thingujam Achouba Singh and Others v. Dr.H.N.Nabachandra Singh and Others, (2020) 20 SCC 312.
12. Sri Sudhanshu Srivastava, learned counsel appearing for Indian Council of Agricultural Research has adopted the arguments of Ms. Pooja Agarwal in defending the advertisement.
13. Having heard learned counsel for the respective parties and their arguments raised across the bar and having perused the records, I find that the UGC vide its regulation no. 3.4 provides that one must have a Bachelor's degree with 55% marks and there can be relaxation upto 5%, meaning thereby, one must have both Bachelor's degree and Master's degree. Now whether one has a Bachelor's degree in a particular subject relating to the discipline in which the appointment is sought to be made or in some other discipline shall fall within the domain of the employer to determine. An employer can ask for four years Honor's degree in a particular subject or four years ordinary bachelor degree in particular subject or a three years' Bachelor degree in particular subject or related subject. If the University in the discipline of Agriculture like in the present case Plant Breeding and Genetics, wants to prescribe for a particular Bachelor degree with a particular course and if it provided for B.Sc. With four years course/ B. Sc. four years Honor's course, it cannot be said that this being not the minimum qualification required, the University has modified the minimum qualification against the UGC Regulations. The minimum qualification is still the Master's degree in the discipline concerned which a candidate must possess to in order to provide a suitable candidate to the particular subject of Agriculture discipline and if the University wants that one should have Bachelor's degree also of Agriculture Science like B.Sc. (Agriculture) with four year's course or B.Sc. four year's Honor's course, it cannot be said that it had in any manner provided an additional qualification only with a purpose to short list the candidates.
14. The University running courses in agriculture can of course, besides M.Sc. (Agriculture) can ask for B.Sc. (Agriculture) at the same time as Bachelor's degree is also required. Petitioner, who is B.Sc. (Biology) can not complain against requirement of B.Sc. (Agriculture) 4 years' course. It is sole discretion of employer to ask for a qualification in a particular discipline but of course cannot ask for lesser qualification as minimum qualification contrary to the U.G.C. regulations.
15. In State of Tamilnadu & Another v. S.V. Bratheep (minor) & Others, (2004) 4 SCC 513 while dealing in the matter of prescribed qualification by AICTE and the scope of University prescribing qualification for admission in Engineering Colleges the Court held that the State once prescribes a qualification for having secured certain percentage of marks in the related subjects which were higher than the minimum qualifying marks examination in order to be eligible for admission, the Court held that if the higher minimum marks is prescribed by the State Government in common entrance than what was the prescribed by AICTE for admission in Engineering Colleges, it could not be faulted with as it would be permissible for the State Government to prescribed higher qualification. The Court has held in that case that if the AICTE provided for certain marks to be obtained in the qualifying examination, then if the State Government prescribes certain higher marks in the Common Entrance Test which would be higher than the minimum in the qualifying examination to participate in the Common Entrance Test it would though be in addition to the Common Entrance Test and would not be contrary to what was prescribed by the AICTE but would be complementary and supplementary. The Court in this case had relied upon the judgment of Supreme Court in the case of Maharasthra Public Services Commission v. Sandeep Sriram Varade and others (2019) 6 SCC 362 and in the case of P.U. Joshi and others v. Accountant General, Ahmedabad & Others (2003) 2 SCC 632 wherein it was held that the High Court under Article 226 of the Constitution cannot exercise a judicial review to inquire into the validity of the qualifications prescribed for and to modify the requisite qualification. Four years B.Sc. Agriculture Course or four years B.Sc. Agriculture (Hons.) will rest upon the discretion of the employer as employer would be in better position to go ahead with the particular degree course to suit the requirement to ensure quality in teaching and other academic activities in the department concerned.
16. In the case of Dr. Thingujam Achouba Singh (supra) the court vide paragraph no. 16 has observed thus:
"16. So far as relaxation of upper age limit, as sought by the petitioners in one of the writ petitions is concerned, High Court has directed the competent authority and Executive Council of the Society to consider for providing such relaxation clause. We fail to understand as to how such direction can be given by the High Court for providing a relaxation which is not notified in the advertisement. While it is open for the employer to notify such criteria for relaxation when sufficient candidates are not available, at the same time nobody can claim such relaxation as a matter of right. The eligibility criteria will be within the domain of the employer and no candidate can seek as a matter of right, to provide relaxation clause."
17. In the circumstances, therefore, the decision taken by the Policy and Planning Committee (Institute of Agriculture Sciences) in its meeting held on 29.03.2023 providing for four years B.Sc. (Agriculture)/ B.Sc. (Hons.) (Agriculture)/ B.Sc. (Horticulture) in respect of the departments with various sub disciplines of discipline of agriculture including the department of Genetics and Plant Reading cannot be said to be erroneous one and in access of the authority nor it can be said to be in any manner modifying the minimum qualification so as to further pull it down by way of minimum qualification which the UGC had prescribed for.
18. No pleading has been raised in the entire writ petition that the petitioner has the same standard of learning in B.Sc. (Biology) as provided and prescribed under the four years B.Sc. (Agriculture)/ four years B.Sc.(Hons.). All that is pleaded is that since minimum qualification prescribed by UGC is only M.Sc. in the concerned subject/ allied subject from an Indian University whether one is B.Sc. (Agriculture) or otherwise in any other discipline would be entitled.
19. Writ petition fails and is accordingly dismissed.
Order Date :- 12.3.2024/IrfanUddin