Uttarakhand High Court
Prem Singh vs State Of Uttarakhand And Others on 27 October, 2017
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Writ Petition (S/B) No. 370 of 2017
Prem Singh ........Petitioner
Versus
State of Uttarakhand and others .......Respondents
Ms. Prabha Naithani, Advocate for the petitioner.
Mr. S.S. Chauhan, Deputy Advocate General for the State of
Uttarakhand/ respondent no. 1.
Mr. B.D. Kandpal, Advocate for respondent no. 2.
Mr. Yogesh Pandey, Advocate for respondent no. 3.
With
Writ Petition (S/B) No. 380 of 2017
Manju Bisht ........Petitioner
Versus
State of Uttarakhand & another .......Respondents
Mr. Sanjay Bhatt, Advocate, holding brief of Mr. Lalit Sharma, Advocate
for the petitioner.
Mr. B.D. Kandpal, Advocate for respondent no. 2.
Dated: 27.10.2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. JOSEPH, C.J. (Oral) Writ Petition (S/B) No. 370 of 2017 The reliefs sought in the writ petition are as follows:
"I. Issue a writ order or direction in the nature of Certiorari quashing the impugned Clause 4(1) (e) under Heading-Educational and Preferential Qualification, of the advertisement dated 4.8.2017 (Annexure-5) issued by respondent by declaring the same as illegal and contravention of Regulation 2009 of U.G.C. 2 II. Issue a writ order or direction in the nature of mandamus directing the respondents to accept the application form of petitioner and to permit him in Assistant Professor (Government Degree College) Examination 2017 pursuant to advertisement dated 4.8.2017."
2. Briefly put, the case of the petitioner is as follows:
The case of the petitioner is that he completed his graduation in the year 2008 from Kumaon University and thereafter has done M.A. in history. Petitioner obtained 55.5% marks in post graduation (according to the learned counsel for the petitioner, petitioner obtained 49.1% marks in graduation). An advertisement was issued for filling up the post of Assistant Professor. In the said advertisement, Clause 1(e) stipulates that the candidate must possess 50% marks at the graduate level.
Petitioner, admittedly, does not possess the same. Accordingly, the petitioner has sought the reliefs, as we have already noticed. It is the case of the petitioner that in the Brochure for the Uttarakhand State Eligibility Test, the eligibility criteria for a General Category candidate is stipulated as 55% marks in post graduation, and for Reserved Category candidate, minimum marks in post graduation is stipulated as 50%. Petitioner claims to have also appeared in Ph.D. entrance examination on the basis of 55% marks and has, therefore, qualified for Pre- Ph.D. Course and has pursued his Ph.D. Further case of the petitioner is that the condition, which is impugned, is arbitrary, irrational and illogical, namely, the condition that petitioner must possess 50% marks at the graduation level. Further case of the petitioner appears to be that the University Grants Commission (hereinafter 3 referred to as the U.G.C.) Regulation of 2009, nowhere stipulates for minimum marks in graduation for appearing in entrance examination of U-SET or Ph.D., which are essential eligibility criteria for the post of Assistant Professors. Therefore, this bar is not at all sustainable. There is also reference to the advertisement issued in Himachal Pradesh. It appears that the petitioner's application was not accepted, as the petitioner did not possess 50% marks in graduation. Accordingly, petitioner approached this Court.
Writ Petition (S/B) No. 380 of 2017
3. The reliefs sought by the petitioner in this case are as follows:
"(i) a writ order or direction in the nature of certiorari quashing the impugned condition of "good academic record" treating the same to be secured minimum 50% marks in Graduation, contained in advertisement dated 4-8-2017 issued by respondent no.2 for the selection of Assistant Professor in Government Degree Colleges.
(ii) a writ order or direction in the nature of mandamus commanding the respondents to accept the application of the petitioner for the Post of Assistant Professor pursuant to advertisement dated 4-8-2017 and consider her candidature for the post of Assistant Professor in Government Degree Colleges treating him to eligible and qualified."
4. Petitioner belongs to the General Category. She has obtained 47.76% marks at the Graduate level. She has obtained 56.5% marks in the Post Graduation. She has also obtained Ph.D. Degree, besides B.A. Petitioner also referred to the Advertisement dated 04.08.2007 issued by the Public Service Commission and also 4 challenged the prescription of 50% marks at the Graduate level.
5. We heard the learned counsel for the petitioner Mrs. Prabha Naithani, in Writ Petition (S/B) No.370 of 2017 and Mr. Sanjay Bhatt, learned counsel holding brief of Mr. Lalit Sharma, learned counsel for the petitioner in Writ Petition (S/B) No.380 of 2017. We also heard Mr. B.D. Kandpal, learned counsel for the Public Service Commission and Mr. S.S. Chauhan, learned Deputy Advocate General for the State of Uttarakhand.
6. The case of the learned counsel for the Commission appears to be that the Public Service Commission is only a recruiting body, which has followed the terms of requisition. At the Graduate level, in view of the prescription of good academic record by the UGC, the good academic record has been understood as 50% marks at the Graduate level. The petitioners do not have 50% marks admittedly at the Graduate level and, therefore, their applications were rightly not entertained and the writ petitions also cannot be countenanced.
7. Undoubtedly, the argument of the petitioners can be grouped together as follows:-
The U.G.C. Regulations nowhere prescribed for 50% marks at the Graduate level. Petitioners have obtained the requisite marks, as prescribed by the U.G.C., at the Post Graduate level. They have other academic attainments (Ph.D., B.Ed). They also sought enrolment in Ph.D. They also would point out that they are eligible for appearing in the State Eligibility Test and, for that, there is no such requirement, namely, obtaining 5 50% marks at the Graduate level. We are focusing on the marks obtained at the Graduate level and the prescription of 50% marks, without looking into the academic record, at the still lower level, is also subject matter of criticism before this Court.
8. The matter relating to the qualifications to be possessed by a candidate for holding a teaching post (in this case post of Assistant Professor) formerly known as Lecturer, was first dwelt upon by the U.G.C., in its notification, which was issued in the year 2010. The same provided inter alia, as follows:-
"I. The minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the master's level and qualifying in the National Eligibility Test (NET), or an accredited test (State Level Eligibility Test- SLET/SET), shall remain for the appointment of Assistant Professors.
II. NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions.
Provided however, that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/ Institutions.
III. NET/SLET/SET shall not be required for such Masters Degree Programmes in disciplines for which NET/SLET/SET accredited test is not conducted.6
IV. A minimum of 55% marks (or an equivalent grade in a point scale wherever grading system is followed) will be required at the Master's level for those recruited as teachers at any level from industries and research institutions and at the entry level of Assistant Professors, Assistant Librarians, Assistant Directors of Physical Education and Sports.
V. A relaxation of 5% may be provided at the graduate and master's level for the Scheduled Caste/Scheduled Tribe/Differently-abled (physically and visually differently-abled) categories for the purpose of eligibility and for assessing good academic record during direct recruitment to teaching positions. The eligibility marks of 55% marks (or an equivalent grade in a point scale wherever grading system is followed) and the relaxation of 5% to the categories mentioned above are permissible, based on only the qualifying marks without including any grace mark procedures.
VI. A relaxation of 5% may 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.
VII. Relevant grade which is regarded as equivalent of 55% wherever the grading system is followed by a recognized university shall also be considered eligible."
The Government of Uttarakhand has brought about an order dated 30.09.2011, which reads as follows:-
"I. The minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the master's level and qualifying in the National Eligibility Test (NET), or an accredited test (State Level Eligibility Test- SLET/SET), shall remain for the appointment of Assistant Professors.
II. NET/SLET/SET shall remain the minimum eligibility condition for recruitment 7 and appointment of Assistant Professors in Universities/Colleges/Institutions.
Provided however, that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/ Institutions.
III. NET/SLET/SET shall not be required for such Masters Degree Programmes in disciplines for which NET/SLET/SET accredited test is not conducted.
IV. A minimum of 55% marks (or an equivalent grade in a point scale wherever grading system is followed) will be required at the Master's level for those recruited as teachers at any level from industries and research institutions and at the entry level of Assistant Professors, Assistant Librarians, Assistant Directors of Physical Education and Sports.
V. A relaxation of 5% may be provided at the graduate and master's level for the Scheduled Caste/Scheduled Tribe/Differently-abled (physically and visually differently-abled) categories for the purpose of eligibility and for assessing good academic record during direct recruitment to teaching positions. The eligibility marks of 55% marks (or an equivalent grade in a point scale wherever grading system is followed) and the relaxation of 5% to the categories mentioned above are permissible, based on only the qualifying marks without including any grace mark procedures.
VI. A relaxation of 5% may 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.
VII. Relevant grade which is regarded as equivalent of 55% wherever the grading system 8 is followed by a recognized university shall also be considered eligible."
9. It is apparently purporting to provide for the good academic record. The good academic record, insofar as it is relevant for our purposes, is contained in paragraph 3 of the said order, which we have already extracted. By the same, 50% is prescribed for the general category candidates at the Graduate level and 45% is prescribed for the Reserved Category candidates.
10. It is brought to our notice that physically handicapped persons are also entitled for the benefit of 45 % but we need not examine the matter further as it is not relevant for the case. Therefore, there is no dispute that the Regulations of 2010 have been adopted by the State of Uttarakhand. It has, therefore, proceeded to lay down its understanding of good academic record. In this regard, we notice the argument of Mr. B.D. Kandpal, learned counsel for the Commission that it is brought to our notice that it is on the basis of the approval of the Chancellor of the University (who was the Governor of the State) that the prescription of good academic record at the Graduate level (50% or 45% as the case may be) has been done. This contention is raised in response to the argument that good academic record must be defined by the concerned University. Even otherwise, it would appear that the prescription of good academic record as per the statutes of the State Universities is not less than 50%. Therefore, whichever way we look at it, the good academic record, in so far as it pertains to the Graduate level, is understood as 50%. The contention of the petitioners is that they have other academic accomplishments at a later stage of their lives and that would be sufficient, does not appeal to us. It involves two 9 fallacies: Firstly, it would involve violating the mandate of U.G.C. Regulation, which provides for good academic record as understood by the University. This itself indicates that U.G.C. had in its mind, the prescription of good academic record at the Graduate level. As far as Post Graduation level is concerned, the U.G.C. has taken upon itself to prescribe the percentage of marks, which is required. Therefore, reading the provision as a whole and giving the meaning to it, the only purpose of interpretation would be good academic record to be stipulated at the college level. Therefore, 50% has been prescribed as the good academic record at the Graduate level. We cannot possibly even contemplate that such prescription is perverse or arbitrary. Infact, we are informed that from 45% to 60% ordinarily it is stated as the 2nd class. If we pose ourselves the question as to whether prescription of marks, which is equivalent to the 2nd class as a good academic record, is questionable or arbitrary; the answer can only be an emphatic 'no'. We would also remember that ordinarily Courts will be slow in interfering with prescription in academic matters and will defer to the views of the experts and authorities. Even in common sense, prescription of 50% as a good academic record, even if it is 2nd class, can only find merit at the hands of the Court in judicial review proceedings in particular.
11. The argument that on the basis of marks, which the petitioners obtained at the Post Graduate level, they have been considered for State Eligibility Test or Ph.D., also cannot assist the petitioners as that would be in the teeth of the statutory requirement provided by the competent body and the U.G.C., as adopted by the State. We may also notice that the argument that the 10 prescription of 50% marks as good academic record at the Graduate level, which ignores the performance of the school at Intermediate level, does not deserve to be accepted. We have noticed that the prescription of good academic record has to be defined by the University. If at the collegiate level, the good academic record is confined to the marks, which are obtained at the Graduate level and ignoring the performance at the school or Intermediate level, the same cannot be said to be in anyway arbitrary. Infact, it may have been arbitrary to look into the marks obtained at the school level for considering the eligibility for appointment at the collegial level. To make things more clear, assuming as if a student has done not too well at the school level and he attains the prescribed marks at the Graduate level and also has further marks at the Post Graduate level, to focus on the marks obtained at the school level also to eliminate the eligibility of such a person though he has improved at the Graduate level and also at the higher levels may be a little too harsh. It is this, which appears to be the value judgment and policy of both the U.G.C. and State Government. We cannot, therefore, find any fault with the same.
12. We may incidentally, also notice that there is no challenge to the order dated 30.09.2011 issued by the Government which is the basis for the Public Service Commission's advertisement. It is also noteworthy here that originally the Public Service Commission it appears issued a notification, which does not contain the 50% marks and entertaining a doubt towards what is to be the view taken in respect of the marks, it wrote to the Government and it is thereafter that a corrigendum was 11 issued on 18.08.2017 wherein the prescription of 50% was specifically made.
13. In such circumstances, the petitioners, who have not obtained the requisite marks, namely, 50% at the Graduate level, cannot be treated as eligible. The rejection of their applications or non-acceptance of their applications as per software of the Public Service Commission, on this ground cannot be faulted.
14. We find no merit in the writ petitions. The writ petitions will stand dismissed.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
27.10.2017
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