Gauhati High Court
Ms. Deepsikha Das vs The State Of Assam And Ors on 27 July, 2017
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Writ Petition (C) No.5636/2010
MS. DEEPSIKHA DAS
D/O PRADYUMNA DAS,
R/O FLAT NO. A 201, ARUNUDAI APARTMENT, GHY.
- PETITIONER
-Vs-
1 THE STATE OF ASSAM,
REP. BY THE CHIEF SECY.TO THE GOVT. OF ASSAM,
DISPUR, GHY-6
2 PRINCIPAL SECY. TO THE GOVT. OF ASSAM,
EDUCATION (HIGHER) DEPTT, DISPUR , GHY.
3 THE DIRECTOR OF HIGHER EDUCATION,
ASSAM, KAHILIPARA, GHY-19.
4 THE PRINCIPAL,
HANDIQUE GIRLS' COLLEGE, GHY-1.
5 THE UNIVERSITY GRANTS COMMISSION,
REP. BY THE SECY, BHADURSHAH ZAFAR MARG, NEW DELHI-2.
6 THE TREASURY OFFICER,
KAMRUP AT PANBAZAR, GHY-1.
- RESPONDENT
BEFORE
HON'BLE MR. JUSTICE HRISHIKESH ROY
Advocate for the Petitioner: Mr. M. Saikia, Advocate.
Advocate the Respondent No.1: Ms. K. Phukan, Govt. Advocate.
Advocate the Respondent Nos.2 & 3: Mr. K. Gogoi, Standing Counsel,
Higher Education Department.
Advocate the Respondent No.4: Mr. D.P. Chaliha, Sr. Advocate.
Advocate the Respondent No.5: Mr. A. Chamuah, Advocate.
Date of hearing & judgment: 27-07-2017.
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JUDGEMENT AND ORDER (ORAL)
Heard Mr. M. Saikia, the learned counsel for the petitioner. The Principal, Handique Girls' College (respondent No.4) is represented by the learned senior counsel Mr. D.P. Chaliha. The learned standing counsel for the Department of Higher Education Mr. K. Gogoi appears for the respondent Nos.2 & 3. The learned Govt. Advocate Ms. K. Phukan represents the respondent No.1. The University Grants Commission (respondent No.5) is represented by the learned counsel Mr. A. Chamuah.
2. The petitioner is serving as a Lecturer in Bengali in the Handique Girls' College. She was appointed on probation basis, till she secures the National Eligibility Test/State Level Eligibility (NET/SLET) qualification and was to be paid salary, at the minimum of the pay scale. The aggrieved Lecturer has approached the Court for full salary, as per the UGC scale, as she is serving in a sanctioned faculty position.
3. The recruitment process for the vacancy started with the advertisement dated 30.5.1999 (Annexure-A) and besides a good academic career, the satisfaction of the UGC norms, was stipulated for the interested candidates. The petitioner did not possess the NET/SLET qualification, mandated by the UGC and therefore the Director, Higher Education, Assam (hereinafter referred to as 'the DHE') approved appointment only on probation basis. The appointee was also expected to secure the NET/SLET qualification or else she will be terminated. It was also stipulated in the approval order dated 15.9.2000 (Annexure-D), that the incumbent will draw salary at the minimum of the scale.
4. Following the above approval, the petitioner was appointed on probation basis on 18.9.2000 (Annexure-E), in the sanctioned post but it was stipulated that she would be discharged unless she obtains the NET/SLET qualification. The offer of appointment was accepted by the petitioner and she joined service on 18.9.2000 but 10 years later, the probationer has filed this case to claim salary at par, with the other faculty members of the College.
5.1. Mr. M. Saikia, the learned counsel submits that since the petitioner had 55% marks in her MA examination, she satisfied the requirement of good academic career and accordingly the counsel argues that the appointment of the Writ Petition (C) No.5636/2010 2 of 5 petitioner on probation basis, without allowing her to draw the full salary, is wholly unjustified.
5.2. The petitioner refers to the provisional M. Phil degree, secured by her from the Singhania University of Rajasthan to contend that with this M. Phil degree, the appointee should be allowed to draw the regular scale of pay, without insistence on the NET/SLET qualification.
6. Mr. D.P. Chaliha, the learned senior counsel representing the Handique Girls' College (respondent No.4) however submits that the petitioner accepted the conditional appointment in 2000, without any protest and with bit of an effort she could have obtained the required qualification by this time. Now after such long passage of time, the appointee according to the college counsel, cannot demand higher salary, inconsistent with the stipulation made for the probationer appointee.
7. The University Grants Commission (respondent No.5) is represented by the learned counsel Mr. A. Chamuah and he refers to the UGC Notification on Revision of Pay Scales, Minimum Qualifications for Appointment of Teachers in Universities & Colleges and other Measures for the Maintenance of Standards, 1998, to contend that when selection was made and the petitioner was appointed, the UGC norms applicable for appointment of Lecturer is, good academic records, 55% marks at the Masters level and also qualifying in the National Eligibility Test or an accredited test. Such stipulation is mandatory and accordingly the counsel argues that the petitioner, having been appointed on probation basis, cannot demand full salary, as she does not satisfy the UGC norms.
8.1. The learned counsel Mr. K. Gogoi, representing the Department of Higher Education produces the Letter (Ms) No.268, dated 29.8.2006, to project that the M. Phil qualification obtained by the petitioner in distance mode from the Singhania University of Rajasthan, cannot be recognized, as offering of M.Phil/Ph.D. degree through distance mode, is completely prohibited by the Central Government.
8.2. The departmental lawyer submits that conditional approval for appointment was granted to the petitioner, as at the relevant time, candidates with NET/SLET qualification were not available but without satisfaction of the UGC norms, full salary for the under qualified Lecturer, would not be justified.
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9. The specification of NET/SLET qualification along with excellent academic career for appointment of faculty members, is intended to ensure standard of excellence in higher education and dilution of requirement would hardly serve the public cause. Right since the date of advertisement on 30.5.1999, till she was appointed, the petitioner was well aware that UGC norms will have to be satisfied and without any protest, she accepted the appointment on probation, which stipulated the requirement of securing NET/SLET qualification. But in the last 17 years, the petitioner failed to make any attempt to acquire the NET/SLET qualification and therefore the drawl of lesser pay by her, can also be attributed to the self default of the probationer appointee.
10. The inability of the petitioner to secure the NET/SLET qualification is attributed by her learned counsel to denial of study leave by the college authorities, for which, the petitioner had to secure the M.Phil degree in the distance mode from the Singhania University and it is submitted that if study leave can be availed by the probationer, she can make an earnest attempt to acquire the NET/SLET or Ph.D. qualification.
11. This Court is mindful of the fact that the petitioner on account of the stipulation in her appointment order, is drawing lesser salary than her colleagues in the college. But at the same time, the petitioner is not at par with regular faculty members drawing full salary, as they satisfy the UGC norms. To allow drawal of equal pay by a person without UGC norms, would mean treating unequals as equal and this would be discriminatory. Therefore, granting relief of equal pay for the petitioner would not be justified and the same is declined, accordingly.
12. But there can be another option for the litigant, as she can avail study leave to acquire the required qualification. For the faculty members in a provincialised college, the authority to grant study leave, is the Government and such application are to be routed through the DHE, under Rule 23 of the Assam College (Provincialisation) Rules, 2010 (hereinafter referred to as 'the College Rules'). However the applicant must furnish a No Objection Certificate (NOC) from the Governing Body, if she wishes to apply for study leave.
13. Considering the peculiar predicament of the petitioner, Mr. D.P. Chaliha, the learned senior counsel submits that if the petitioner applies for study leave, the Writ Petition (C) No.5636/2010 4 of 5 college management will sympathetically consider the NOC. The departmental lawyer Mr. K. Gogoi also assures of compassionate consideration for study leave by the authority. The Ph.D. degree can exempt a person from the rigor of NET/SLET qualification under the UGC Regulation, 2009, and pursuing a Ph.D. degree can also be an option for the petitioner. But it is for her to take the initiative and act accordingly.
14. The serving Lecturers in college must satisfy the UGC norms and although many years have gone by, it is still not too late for the petitioner to acquire the required NET/SLET or Ph.D. qualification. If any study leave is needed for the Lecturer appointed on probation basis, she has the option of applying for reasonable study leave, under Rule 23 of the College Rules and in that event, the college management must issue the NOC to the Lecturer, so that the same can be considered sympathetically by the DHE as well as the Government, under Rule 23 of the College Rules. It is ordered accordingly.
15. With the above order and direction, the case stands disposed of. No cost.
JUDGE
Barman
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