Sikkim High Court
Shri Saurav Kafley vs Sikkim Public Service Commission And ... on 23 July, 2014
Author: S. P. Wangdi
Bench: S. P. Wangdi
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extra Ordinary Jurisdiction)
J U D G M E N T (ORAL)
S.B. WP(C) No.19 of 2013 Shri Sourav Kafley, S/o Shri Kamal Kafley, R/o 5th Mile, Tadong, Housing Colony, P.O. Tadong, Gangtok, East Sikkim. ... Petitioner versus
1. Sikkim Public Service Commission through the Secretary, Government of Sikkim, Old West Point School, Gangtok, East Sikkim.
2. State of Sikkim through the Secretary, Human Resource Development Department, Government of Sikkim, Tashiling, Gangtok, East Sikkim. ... Respondents CORAM HON'BLE MR. JUSTICE S. P. WANGDI, JUDGE DATE OF JUDGMENT : 23-07-2014 2 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another For Petitioner : Mr. A. K. Upadhyaya, Senior Advocate with Ms. Binita Chettri and Ms. Aruna Chettri, Advocates.
For Respondents : Mr. J. B. Pradhan, Additional Advocate General with Mr. S. K. Chettri, Assistant Government Advocate and Mr. Jeewan Kr.
Kharka, Advocate.
Wangdi, J.
1. This Writ Petition involves interpretation of the University Grants Commission (Minimum Standards and Procedure for Awards of M.Phil/Ph.D. Degree) Regulation, 2009 (in short the 'UGC Regulation, 2009') on the question as to whether the regulations would have prospective or retrospective effect in so far as the Petitioner is concerned.
2. It is not disputed that the Petitioner is at present serving as a Lecturer (Chemistry) in the Sikkim Government College, Tadong, Gangtok, on ad hoc basis since the year 2006 and was registered as a Ph.D. scholar for the Session 2007-08 in the North Bengal University w.e.f. 18-12-2008, i.e., before commencement of the UGC Regulation, 2009.
3 WP (C) No.19 of 2013Saurav Kafley vs. Sikkim Public Service Commission and Another
3. On 23-09-2011, the Respondent No.1 advertised for filling up of 50 posts of Assistant Professor in the Government Colleges in the State out of which three were for the subject of Chemistry under the UR, BL and MBC Categories. It is the case of the Petitioner that he being eligible in all respects, had applied for the post but, his application was rejected on the ground that he had not qualified in NET/SLET/SET and was not a Ph.D. degree holder as required under the UGC Regulation, 2009. The Respondents have not denied the material facts pleaded on behalf of the Petitioner but only disputes his eligibility under the UGC Regulation, 2009 as he did not fulfil the essential criteria laid down therein.
4. It is the firm stand on behalf of the State-
Respondents that the regulation would apply retrospectively upon the Petitioner. As per them, a bare reading of the regulation would clearly reveal that only such persons who fulfilled the eligibility criteria laid down therein would be eligible to be considered for appointment to the posts advertised.
4 WP (C) No.19 of 2013Saurav Kafley vs. Sikkim Public Service Commission and Another
5. Considering the limited question requiring determination, we need not go into the other issues raised in the Writ Petition as being irrelevant and immaterial.
6. For better appreciation of the question involved in the case, we may set out below in seriatim the eligibility criteria laid down in the (i) UGC Regulation, 2006 (Second Amendment); (ii) UGC Regulation, 2009; (iii) UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 and (iv) the Advertisement No.8 dated 23-09-2011 issued by the Sikkim Public Service Commission, which are material for consideration:-
(i) UGC Regulation, 2006 (Second Amendment) "NET shall remain the 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."
(ii) UGC Regulation, 2009 "NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/ Colleges/Institutions.5 WP (C) No.19 of 2013
Saurav Kafley vs. Sikkim Public Service Commission and Another 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."
(iii) UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 "3.3.1. 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 the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions."
(iv) The Advertisement No.8 dated 23-09-2011 issued by the Sikkim Public Service Commission "i) Good academic record with 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's level and National eligibility Test (NET)/State Level Eligibility Test- (SLET)/State Eligibility Test (SET) qualified.
6 WP (C) No.19 of 2013Saurav Kafley vs. Sikkim Public Service Commission and Another Provided however that, candidates awarded 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 criteria of NET/SLET/SET."
7. Relevant to the above is that the Sikkim Government College Lecturers' Recruitment (Amendment) Rules, 2011 which was framed pursuant to the University Grants Commission framing the UGC (Minimum Standards and Procedure for Awards of M.Phil/Ph.D. Degree) Regulation, 2009, which was published in the Gazette of India on 11-07-2009 as well as UGC Regulation on Minimum Qualification for Appointment of Teachers and Other Academic Staffs in Universities and Colleges and Measures for the Maintenance of Standard in Higher Education, 2010 published in Gazette of India dated 18- 09-2010.
In clear departure to the UGC Regulation, 2006, Clause 13 of the UGC Regulation, 2009 prescribes a 'course work' to be undertaken by each M.Phil/Ph.D. student for a minimum period of one semester as a pre-
M.Phil/Ph.D. preparation.
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8. On behalf of the Petitioner Mr. A. K. Upadhyaya, Senior Advocate, submits that having registered himself in the year 2007-08 as a Ph.D. scholar, the Petitioner is governed by the UGC Regulation, 2006 as per which the requirement to pursue 'course work' prescribed under UGC Regulation, 2009 did not exist and, therefore, he could not be penalised for non-compliance of a non-existent regulation, i.e., the UGC Regulation, 2009 which, as per him, even after it being framed was not applicable to him.
9. In support of his submissions on behalf of the Petitioner, Mr. Upadhyaya has sought to rely upon various decisions which are set out below in seriatim with the relevant extracts:-
(i) Dr. Gaurav Kumar Singh and Others vs. Vice Chancellor, B.H.U. and Others [Order dated 01-12-2010 passed by the Division Bench of the Allahabad High Court in Writ A No.49208 of 2010] ".......................................................................................
4. The petitioners were not found eligible for the post, as according to the University NET/SLET is compulsory for recruitment and appointment of Assistant Director of Physical Education. They were not awarded Ph.D in compliance of the University Grants Commission (Minimum Standard an Procedure for Award of M.Phil, Ph.D Degree) Regulation 2009, for granting exemption, from the requirement of NET/SLET.
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5. By an interim order dated 17.8.2010, the petitioners were allowed to appear in the interviews. Their result however was to be declared when the court ordered for such declaration.
6. Learned counsel for the petitioners submits that all those persons who had obtained Ph.D or were registered for Ph.D upto the year 2009 are eligible, if they were awarded Ph.D Degrees, for which second amendment to the Regulations 2006, provided for exemption from NET/SLET.
7. Sri S.S. Singh submits that the matter was considered by the UGC in its 472nd meeting. The UGC noted that the UGC Regulations of 2009/2010 are prospective and not retrospective in nature and resolved that "all candidates having M.Phil degree on or before July 10,2009 shall remain exempted from the requirement of NET for the purpose of appointment as lecturer/assistant professor".
8. Sri V.K. Singh appearing for the University submits that the University is following the norms as laid down by the UGC. If there is relaxation, the petitioner can claim the benefit of the same from the University.
9. The UGC (Minimum Qualifications Required for the appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) (3rd Amendment) Regulation 2009 have come into force from 7.11.2009. The cut off date in the Regulations was initially provided as 31.3.2009, and thereafter it was extended upto 7.11.2009.
10. The issue as to whether the persons who have completed Ph.D. course prior to the enforcement of UGC (Minimum Standards and Procedure for Awards of M.Phil/Ph.D Degree) Regulation 2009 dated 1.6.2009 notified on 11.7.2009, has been considered and decided by UGC itself to be prospective in its application.
11. Apart from the method and selections for registration to the Ph.D. course, the UGC Regulations of 2009, have also provided for change in the methods of selections and award of the degrees such as evaluation and assessment.
9 WP (C) No.19 of 2013Saurav Kafley vs. Sikkim Public Service Commission and Another The Regulations 2009, for registering to M.Phil/ Ph.D. course and for the award of M.Phil/Ph.D. degrees, are, by its very purpose and nature, prospective in application. We are unable to appreciate as to how the University can insist upon qualifications in accordance with 2009 Regulations, when the Regulations itself have become effective from 7.11.2009.
12. In our opinion, the persons who were registered or have completed the Ph.D course prior to 7.11.2009 cannot be subjected to hostile and invidious discrimination. Their Ph.D. Degrees have to be taken into consideration for the purpose of considering exemption from NET/SLET for appointment as Lecturer/Assistant Director in the University Sports Board of Banaras Hindu University, upto the date of enforcement of the UGC Regulations of 2009.
....................................................." [underlining mine]
(ii) Dr. Lalrokima Chenkual and Others vs. The Mizoram University and Others [Judgment and Order dated 07-09-2012 passed by the Single Bench of the Aizwal Bench of the Gauhati High Court in Writ Petition (C) No.101 of 2011] ".......................................................................................
11. The UGC has framed another set of regulations known as UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 prescribing that NET/SLET/SET shall remain the minimum eligibility condition for recruitment of Assistant Professors in Universities/Colleges/Institutions, provided that those candidates who are or have been awarded Ph.D Degree in accordance with the UGC (Minimum Standards and Procedure for Award of Ph.D Degree) Regulations, 2009 shall be exempted from the said requirement of minimum eligibility. The said provision is as under:
"3.3.1 NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/ Institutions.10 WP (C) No.19 of 2013
Saurav Kafley vs. Sikkim Public Service Commission and Another 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."
...................................................................................
16. Respondents 1 & 2, that is the Mizoram University have filed their counter affidavit. According to the Mizoram University, the UGC (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degree) Regulations, 2009 requires that each M.Phil/Ph.D student should undertake Course Work for a minimum period of one semester which shall form part and parcel of the M.Phil/Ph.D programme. Reference has also been made to the UGC (Minimum Qualifications Required for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) (3rd Amendment) Regulations, 2009 and the UGC (Minimum Qualifications Required for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 to contend that NET/SLET/SET is the minimum eligibility condition for recruitment of Assistant Professors provided that candidates who are or have been awarded Ph.D Degree in accordance with the UGC (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degree) Regulations, 2009 are exempted from the requirement of NET/SLET/SET. The University has also stated that under Ordinance OC-4, exemption from pre-Ph.D course work would be available to those candidates who have done M.Phil or had obtained Grade A in M.Phil Course Work. According to the University, Petitioners have neither done M.Phil nor obtained Grade A in M.Phil Course Work. Therefore, they have been treated as ineligible. In para 12 of the counter affidavit, the Mizoram University has stated that the Petitioners had been screened out for the following reasons:
11 WP (C) No.19 of 2013Saurav Kafley vs. Sikkim Public Service Commission and Another "(a)due to non possession of NET/SLET/SET.
(b)non-possession of Ph.D Degree in accordance with the UGC Regulation, 2009 and 2010.
(c) the Petitioners were further screened out in certain Post-Graduate Department/Posts as they did not possess the desired specialization as per the advertisement in the employment notice dt. 25.1.2011."
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20. Mr. Lalramzauva, learned Sr. counsel appearing for the petitioners submits that the 2009 Regulation cannot be given retrospective effect thereby making the petitioners, who were otherwise eligible under the 2006 Regulations, ineligible. He has submitted that the petitioners who are all Ph.D Degree holders cannot be made ineligible for the post of Assistant Professor by application of the 2009 Regulation. He submits that the UGC in its 472nd meeting held on 27.09.2010 suggested modification of the minimum eligibility requirement and resolved that since the regulations are prospective and not retrospective in nature, all candidates who had obtained Ph.D Degree on or before 31.12.2009 and those who had registered themselves for Ph.D Degree on or before 10.07.2009 and subsequently awarded Ph.D Degree, should be exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. He, therefore, submits that if that be the view of UGC, there can be no justifiable reason to treat the petitioners as ineligible for the post of Assistant Professor.
................................................................................
22. Resisting the submissions made on behalf of the petitioners, Mr. Michael Zothankhuma, learned Sr. counsel appearing for the respondents 1 & 2 submits that the petitioners are not eligible for appointment as Assistant Professor as per the 2009 Regulations and, therefore, the University authorities had to screen them out from the list of eligible candidates. Referring to a Division Bench judgment of the Delhi High Court in the case of All India Researchers' Coordination Committee & Ors. Vs. Union of India(UOI) & Ors. reported in 12 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another MANU/DE/3268/2010, learned counsel for the University submits that appointments made after coming into force of the 2009 Regulations will have to conform to the requirements of the said Regulations and, therefore, by application of the said Regulations, the petitioners cannot be treated as eligible candidates.
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25. In All India Researchers' Coordination Committee & Ors. (supra), the constitutional validity of the 2009 Regulations was challenged. The challenge was made primarily on the ground that power to frame regulation under the UGC Act, 1956 is exclusively conferred on the UGC and the Union of India could not have interfered with the said power. It was contended that framing of the said Regulations by the UGC pursuant to directions by the Union of India amounted to abdication of statutory power by the UGC. The Delhi High Court however negatived the challenge and upheld the validity of the said Regulations, which was also held to be prospective.
................................................................................
28. Coming to the case before the Allahabad High Court, it pertained to recruitment to the post of Assistant Director in Physical Education in the Banaras Hindu University (BHU). In the qualification prescribed, it was stated that requirement of NET was compulsory. The petitioners did not have NET/SLET/SET. They were found ineligible as they were not granted Ph.D Degree in terms of the 2009 Regulations which granted exemption from the requirement of NET/SLET. Allowing the case of the petitioners, the Allahabad High Court held that the 2009 Regulations are prospective in nature and therefore, the persons who were registered or have completed Ph.D course prior to 11.7.2009, the date of coming into force of the 2009 Regulations cannot be declared ineligible. The petitioners in that case were directed to be treated as eligible candidates. .............................
29. This Court is in respectful agreement with the views expressed by the Allahabad High Court. The Petitioners having obtained their Ph.D Degree or having their registration for Ph.D Degree before 13 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another 11.7.2009, they cannot be made subject to the rigour of the 2009 Regulation, which is prospective.
...................................................." [underlining mine]
(iii) Dr. Jeetendra Gupta vs. Barkahtullah Vishwavidyalaya [Order dated 08-05-2013 passed by the Division Bench of the Madhya Pradesh High court in Writ Petition No.15990 of 2012] ".......................................................................................
2. The petitioner was registered with the respondent on 14.1.2008 as candidate for the degree of Doctor of Philosophy in Law. Thereafter the Executive Council of the respondent in its meeting held on 27.1.2010 also accepted his name for the award of that degree. The notification dated 29.1.2010 published by the respondent in this regard is Annexure P5.
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7. It is argued on behalf of the petitioner that the UGC in its 472nd meeting has already clarified that the candidates who had obtained the degree of Doctor of Philosophy on or before 10.7.2009 and those who had registered themselves for Doctor of Philosophy course on or before that date shall be exempted from undertaking the course work. It has also been argued that the Regulations 2009, being prospective in application, are not applicable to the petitioner. The respondent in its reply has, however, defended the validity of notification essentially on the ground that it is in consonance with the Regulations 2009 of the UGC.
8. The Regulations 2009 clearly provide for change in the methods of selection and award of the degrees of Master of Philosophy and Doctor of Philosophy, such as evaluation and assessment. The regulations for registration of candidates to Master of Philosophy and Doctor of Philosophy courses and award of degrees of such courses are by very nature and purpose prospective in application. A Division Bench of the Allahabad High Court also in Writ Appeal No.49208/2010 (Dr. Gaurav Kumar Singh v. Vice Chancellor, 14 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another B.H.U.) after examining the Regulations 2009 has held that they are prospective and the candidates who were registered or had completed the Doctor of Philosophy course prior to 11.7.2009 cannot be subjected hostile and invidious discrimination. Meaning thereby that such candidates cannot be directed by 4 the University to undertake course work before awarding the degree.
9. In the case at hand also, as already stated above, the petitioner was registered for Doctor of Philosophy in Law subject on 14.1.2008 i.e. much prior to 11.7.2009. Not only this, the respondent even issued a notification dated 29.1.2010 that its Executive Council has approved his name for the award of degree of Doctor of Philosophy. Therefore, at this stage, it could never be the intention of the Regulations 2009 for making the petitioner to undertake the course work which is treated as pre-M.Phil/Ph.D. preparation. For these reasons, we are in complete agreement with the view taken by the Division Bench of the Allahabad High Court in the case of Dr. Gaurav Kumar Singh (supra). We accordingly quash the notification dated 29.1.2010 insofar as it has been made applicable to petitioner and the students who were registered or had completed the Doctor of Philosophy course prior to 11.7.2009. We also direct the respondent to immediately award the degree of Doctor of Philosophy (Ph.D.) to the petitioner.
...................................................." [underlining mine]
10. Mr. Upadhyaya goes on to submit that the fact that UGC Regulation, 2009 would only have prospective application and that the Petitioner who was eligible for the post under the UGC Regulations, 2006 (Second Amendment), would also be eligible under the 2009 Regulation, stands established by the resolution passed in 15 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another the 472nd meeting of the UGC held on 12-08-2010 which reads as under:-
"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".
Mr. Upadhyaya thus submits that the Petitioner who had registered himself for Ph.D. degree in 2008 before the UGC Regulation, 2009 was framed, was entitled to be exempted from the requirement of NET/SLET/SET for the purpose of appointment as Lecturer/Assistant Professor.
This also appears to be consistent with the Regulations of 2006 (Second Amendment) by which the Ph.D. degree holders were exempted from the requirement of NET/SLET/SET.
11. Mr. J. B. Pradhan, Learned Additional Advocate General, while making efforts to explain the decision in Dr. Gaurav Kumar Singh (supra) submits that the basis of 16 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another the decision rendered by the Hon'ble Allahabad High Court was the resolution of UGC passed in its 472nd meeting to the effect that the UGC Regulations of 2009/2010 were prospective and not retrospective in nature and that all candidates having M.Phil degree on or before 10-07-2009 shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer or Assistant Professor. It is the submission of Mr. Pradhan that the Hon'ble Allahabad High Court while deciding the case did not have the benefit of considering the letter No.F.9-3- 2010(PS)/Misc. dated 10-10-2010 written by the Secretary, UGC to the Vice Chancellors of all States and Central Universities, having not been brought to its notice.
It is submitted that by that letter it had been conveyed that the resolution passed in the 472nd meeting of the UGC referred to on behalf of the Petitioner and relied upon by the Hon'ble Allahabad High Court was not concurred by the Central Government vide its D.O. letter No.F.8- 7/2010-U-I(A) dated 03-11-2010.
12. Mr. A. K. Upadhyaya, Learned Senior Advocate, on the other hand, submits that this question was considered in the decision rendered by the Aizawl Bench of 17 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another the Gauhati High Court in Dr. Lalrokima Chenkual (supra) as would be evident from paragraph 23 of the judgment which reads as under:-
"23. Similar is the view expressed by Mr. Nelson Sailo, learned Sr. counsel appearing for the UGC. Referring to the affidavit filed by the UGC, learned Sr. counsel submits that the suggestions of the UGC made in its 472nd meeting has not yet been accepted by the Central Government and therefore, the Mizoram University was justified in treating the petitioners as ineligible for the post of Assistant Professor."
The above position, as per him, has also been reiterated in a subsequent decision of the Madhya Pradesh High Court in Dr. Jeetendra Gupta (supra). As per the Learned Senior Counsel, this position is now trite and no more res integra.
13. Attention before this Court was drawn by him to the import of Section 26 of the University Grants Commission Act, 1956, which vests the UGC with the power to make regulations and this power under clause
(e) of Section 26 also brings within its ambit the power to define "the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instructions."
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14. In All India Researchers' Coordination Committee and Others vs. Union of India and Others :
MANU/DE/3268/2010 referred to by Mr. A. K. Upadhyaya it was held that the power to frame regulation provided under the UGC Act, 1956, is exclusively conferred on the UGC and, the Union of India cannot interfere with such power and that if UGC frames regulations on the directions of the Union of India, it would amount to abdication by the UGC of its statutory power. This submission was made to buttress his stand that even if the Central government had not consented to the resolution of the UGC passed in its 472nd meeting, it would have no consequence on the validity of the resolution.
15. I have considered the respective submission placed by the Learned Counsel for the parties. As already observed earlier, the fact that the Petitioner had been registered as a Ph.D. scholar under the UGC Regulation, 2006 is not in dispute. It is also not disputed that the Petitioner is still in service teaching the very subject as a Lecturer on ad hoc basis for which the advertisement was published. The only question for determination is as to 19 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another whether the requirement of a Ph.D. degree as prescribed in the UGC Regulation, 2009 would be applicable prospectively or retrospectively to the Petitioner.
16. The Madhya Pradesh High Court in the case of Dr. Jeetendra Gupta (supra), relying upon the cases of Dr. Lalrokima Chenkual (supra) of the Aizawl Bench of the Gauhati High Court and Dr. Gaurav Kumar Singh (supra) of the Allahabad High Court, has held under similar facts and circumstances as in the present case, that persons who are registered and had applied for Ph.D. degree prior to 11-07-2009 cannot be subjected to hostile and invidious discrimination. This would be abundantly clear from the relevant extract of the judgment reproduced above. As held in the case of Dr. Lalrokima Chenkual (supra), this Court is also in respectful agreement to the views expressed by the Allahabad High Court and the Madhya Pradesh High Court. The Petitioners having registered themselves for Ph.D. course prior to 11-07-2009 and completed it thereafter cannot be made subject to the rigours of the 2009 Regulation which is undoubtedly prospective.
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17. For these reasons, I am of the view that the Petitioner is entitled to the reliefs prayed for in the Writ Petition.
18. In the result, the Writ Petition is allowed.
19. Consequently, the Petitioner shall be treated as an eligible candidate for recruitment to the post of Assistant Professor (Chemistry) pursuant to the advertisement dated 23-09-2011, Annexure P-8 (collectively), and allow him to sit in the interview for that post which is said to be still lying vacant. The reject list of ineligible candidates for the post of Assistant Professor prepared by the Respondent No.1 shall be treated as cancelled. However, such cancellation shall be restricted only to the case of the Petitioner making it clear that this shall not create any embargo upon the State to reconsider other cases similar to that of the Petitioner, if so advised, in the interest of justice.
20. No order as to costs.
Sd/-
( S. P. Wangdi ) Judge 23-07-2014 21 WP (C) No.19 of 2013 Saurav Kafley vs. Sikkim Public Service Commission and Another