Karnataka High Court
Sri. Manjunath Mallinath Hiremath vs The Karnataka University on 26 August, 2021
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH ®
DATED THIS THE 26th DAY OF AUGUST 2021
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
W.P.No.100859/2016 (S-RES)
Between
Sri. Manjunath Mallinath Hiremath,
S/o Mallinath Hiremath,
Aged 41 Years,
R/o: Door No.30 + 32/3552,
Beside Khoday Hostel,
Sirur Park, 1st Stage, Hubballi,
Taluk: Dharwad, Dist: Dharwad. ...Petitioner
(By Sri. Avinash Angadi, Advocate for Sri. Jagadish Patil, Advocate)
And
1. The Karnataka University
Dharwad, Rep by its Registrar
Pavatenagar, Dharwad-580003.
2. Smt.Sridevi P.G.,
Aged 36 Years,
Assistant Professor in English,
Karnataka University, Dharwad,
C/o Sri.N.B.Kajjari,
No.26, Ramanagar,
Near Sangam Theatre,
Dharwad. ...Respondents
(By Sri. K.L. Patil, Advocate for R1
Sri. Shivakumar S.Badawadagi, Advocate for R2)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to call for the records relating to,
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concerning and connected with the office order of respondent
No.1 dated 26.02.2014 vide Annexure-K and declare the same
as arbitrary etc.; and direct the 1st respondent to consider the
case of the petitioner for appointment as an Assistant Professor
(PG) in response to the notification vide Annexure-A,
objectively, and in accordance with law, and to appoint him if
found eligible in that regard.
This writ petition having been heard and reserved for orders
on 11.08.2021, coming on for pronouncement of orders this day,
the Court made the following:
ORDER
The petitioner, who was one of the candidates who had applied for the post of Assistant Professor (PG) in English, in response to the notification/advertisement dated 11.01.2014 published by the 1st respondent, has approached this Court challenging the office order dated 26.02.2014 issued by the 1st respondent vide Annexure-K appointing the 2nd respondent to the post of Assistant Professor (PG) in English and also with a prayer to issue a writ of mandamus directing the 1st respondent to consider the case of the petitioner for appointment to the said post of Assistant Professor (PG) in English.
2. Brief facts of the case that would be relevant for the purpose of disposal of this petition are:
(a) The 1st respondent-University had published a notification/ advertisement dated 11.01.2014 calling for the applications to 3 fill up the solitary vacancy of Assistant Professor (PG) in English subject and, in response to the said notification, the petitioner had submitted his application seeking appointment. The notification/ advertisement clearly stated that the applications were required to be submitted only by qualified candidates. The prescribed qualifications as per the said notification dated 11.01.2014 for the post of Assistant Professor is as follows:
"Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university.
(See Other Conditions No.17) Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET.
Notwithstanding anything contained in above two paras, 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.
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NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/ SLET/ SET is not conducted.
Those who have obtained Ph.D. degree after 11.07.2009 must have completed Ph.D. with course work.
The applicants while applying must strictly adhere to the UGC (Minimum qualifications for appointment teachers in Universities and Constituent Colleges) Regulations, 2010."
(b) According to the petitioner, there were totally 35 candidates and though the 2nd respondent did not possess the requisite qualification, the 1st respondent vide Annexure-K, dated 26.02.2014, appointed the 2nd respondent to the post of Assistant Professor (PG) in English. Being aggrieved by the same, the petitioner has approached this Court.
3. Learned counsel for the petitioner submits that the petitioner has got higher marks during his academic career compared to the 2nd respondent, and the petitioner had work experience while the 2nd respondent did not possess the same. Learned counsel for the petitioner submits that as per the notification/advertisement dated 11.01.2014, a candidate applying for the post of Assistant Professor (PG) in English, in 5 addition to having a minimum 55% marks at the Master's Degree level in the relevant subject, must have passed the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UCG like SLET/SET. He submits that the notification further provided that the candidates, who are or have been awarded Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009 (hereinafter referred to as 'Regulations of 2009', for short) shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent position in Universities/ Colleges/Institutions. He also submits that those who have obtained Ph.D. Degree after 11.07.2009 must have completed Ph.D. Degree with course work and that the applicants while applying must strictly adhere to the UGC (Minimum qualifications for appointment teachers in Universities and Constituent Colleges) Regulations, 2010 (hereinafter referred to as 'the Regulations of 2010' for short). He submits that the 2nd respondent has not cleared the National Eligibility Test conducted by the UGC, CSIR or similar tests accredited by the UCG like SLET/SET. He further submits that the respondent does 6 not possess a Ph.D. Degree in accordance with the Regulations of 2009 and therefore she is not entitled to be exempted from the requirement of clearing NET/SLET/SET for recruitment and appointment to the post of Assistant Professor. He submits that a candidate, who has obtained Ph.D. Degree after 11.07.2009 i.e. after Regulations of 2009 came into force, must have completed Ph.D.Degree with course work, but the 2nd respondent, admittedly, has not completed Ph.D. Degree with course work and in spite of the 2nd respondent not possessing the basic qualifications to be recruited and appointed to the post of Assistant Professor (PG) in English, the 1st respondent for extraneous reasons has overlooked the said aspects and appointed the 2nd respondent to the post of Assistant Professor (PG) in English. He submits that the petitioner is a meritorious candidate and he possesses all requisite qualifications prescribed in the notification dated 11.01.2014 and the petitioner is also the highest scorer in the list of candidates and in spite of the same, his candidature is overlooked and the candidate who is not eligible has been appointed.
4. Per contra, the learned counsel for the 1st respondent-University submits that the University has strictly 7 followed the statute and the orders passed by the State Government from time to time and the appointment of the 2nd respondent is in accordance with law. He submitted that the selection committee consists of experts and having examined the academic qualification, teaching experience and also the requisite qualifications, they have rightly appointed the 2nd respondent. He submits that the 2nd respondent has been awarded Ph.D. Degree in the month of December 2012 from the 1st respondent-University and since she had enrolled for her Ph.D. Degree course prior to 11.07.2009 she was not required to undergo the course work. He submits that it is only the candidates who have registered for Ph.D. Degree course under Regulations of 2009, are compulsorily required to undergo the course work. He submits that the 1st respondent-University issued a certificate dated 20.12.2013 to the 2nd respondent that since she has been awarded the degree of Doctorate in the month of December 2012 in English and since she had registered for the Ph.D. Degree course during the academic year 2006-07, she is not required to undergo the course work. He submits that considering the course work exemption certificate issued by respondent No.1 and also taking into consideration that the 2nd respondent possessed Ph.D. Degree in English, the 8 experts have rightly decided to appoint her. He submits that unless the petitioner makes out a case of patent material irregularity or illegality in the appointment of the 2nd respondent, the decision of the selection committee cannot be interfered with.
5. Learned counsel for the 2nd respondent submits that when the 2nd respondent had registered for her Ph.D. Degree course, there was no requirement for doing the course work and the relevant rules which prevailed at the said point of time did not envisage to do the course work. He submits that, admittedly, even the 2nd respondent has been awarded Ph.D. Degree in English and therefore, she is exempted from clearing the NET/SLET/SET conducted by the UGC or CSIR. He submits that pursuant to the order of appointment, the 2nd respondent has joined the services of the 1st respondent, her services are now confirmed and she has also been promoted to the next cadre and at this juncture, her appointment cannot be disturbed. He submits that the petitioner, who is a rival candidate, cannot question the appointment of the 2nd respondent on the ground that she does not possess the 9 requisite qualification and it is for the appointing authority to decide. Hence, he prays to dismiss the petition.
6. I have carefully considered the rival arguments addressed by the learned counsel appearing for the contesting parties and also perused the material available on record.
7. The 1st respondent-University in its notification/ advertisement dated 11.01.2014 has prescribed the minimum qualification to the post of Assistant Professor (PG) in English as per the UGC Regulations of 2010. From a reading of the same, it is very clear that, in addition to securing a minimum of 55% marks at the Master's Degree level, the candidates must have also cleared NET/SLET/SET conducted by the UGC or CSIR. This is the minimum eligibility qualification for the candidate. However, exemption is given to candidates who are or have been awarded Ph.D. Degree in accordance with Regulations of 2009, and it is also made clear that those who have obtained Ph.D. Degree after 11.07.2009 must have completed Ph.D. Degree with course work. It is not in dispute that the 2nd respondent has not cleared the NET/SLET/SET conducted either by the UGC or CSIR and therefore did not possess the minimum eligibility.
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8. It is the contention of the respondents that the 2nd respondent was awarded a Ph.D. Degree in English in the month of December 2012 and therefore she is exempted from possessing the requirement of minimum eligibility of passing the aforesaid eligibility tests. A mere possessing of Ph.D. Degree will not exempt a candidate from the requirement of minimum eligibility qualification of passing the eligibility tests conducted by the UCG or CSIR. The said exemption is granted only if the Ph.D. Degree is awarded in accordance with Regulations of 2009 and the notification/advertisement dated 11.01.2014 further provides that the candidates who have obtained Ph.D. Degree after 11.07.2009 must have completed Ph.D. Degree with course work. The 2nd respondent has obtained her Ph.D. Degree in the month of December 2012. Therefore, the requirement is that she must have completed her Ph.D. Degree with course work. The contention of the respondent that the 2nd respondent had registered for her Ph.D. Degree course much prior to 11.07.2009 and the requirement for completing the Ph.D. Degree with course work cannot be made applicable to her because the same was not the requirement at the relevant point of time, cannot be appreciated. As on the date of 11 notification/advertisement, the candidate who applied was required to hold/possess the minimum qualifications for the post which he applied. The 2nd respondent, admittedly, did not possess such minimum requirement though she possessed the Ph.D. Degree as the same was not awarded to her in accordance with the Regulations of 2009 nor had she completed her Ph.D. Degree with course work which was the minimum requirement as per the notification dated 11.01.2014.
9. The Hon'ble Supreme Court in the case of The State of Madhya Pradesh & Ors. Vs. Manoj Sharma & Ors. (Civil Appeal No.871 of 2018, arising out of SLP (C) No.26528 of 2013 disposed of on 25.01.2018, at paragraphs 17 to 20 has observed as follows:
"17. It has to be noticed that the amendment as made in the minimum qualification, now provides that the exemption from NET shall be given to the Ph.D. degree holders, only when Ph.D. degree has been awarded to them in compliance with the Regulations 2009 of UGC (Minimum Standards and Procedure). The above provision thus, made it mandatory that for lecturers NET qualification is necessary and exemption shall be granted to those Ph.D. degree holders who have obtained Ph.D. degree in accordance with the Regulations 2009 of UGC (Minimum Standards and Procedure). The purpose and object of the above amendments in both Regulations 12 2009 of UGC (Minimum Standards and Procedure) as well as Regulations 2009 of UGC (Minimum Qualifications for Appointment) is not far to seek. There has been challenge to amendments made in Regulations 2009 of UGC (Minimum Qualifications for Appointment) in so far as it denied the benefit to Ph.D degree holders who had obtained Ph.D prior to 11.7.2009. Writ Petitions were filed in different High Courts challenging the regulations on different grounds including that regulations are arbitrary and violative of Article 14 which discriminate the Ph.D. degree holders who have obtained Ph.D. degree prior to 11.7.2009 and those who obtained the degree after 11.7.2009 in accordance with Regulations 2009 of UGC on Minimum Standards and Procedure.
18. The challenge to regulations were repelled by different High Courts whereas Allahabad High Court vide its judgment dated 6.4.2012 in Dr. Ramesh Kumar Yadav and Another versus University of Allahabad and Others has upheld the challenge. Appeals were filed against the judgment of the Rajasthan High Court, Delhi High Court and Madras High Court by the candidates whose writ petitions were dismissed as well as against the judgment of the Allahabad High Court dated 06.04.2012, upholding the contention of the candidates. This Court decided all the appeals by its judgment reported in P. Susheela and Others versus University Grants Commission and Others, (2015) 8 SCC 129. This Court upheld the judgment of the High Courts of Rajasthan, Madras and Delhi and set aside the judgment of the Allahabad High Court dated 6.4.2012, upholding that the amendments made in Regulations 2009 of UGC(Minimum Qualifications for 13 Appointment) were valid and there is a valid classification between the candidates who have obtained degree prior to Regulations 2009 of UGC (Minimum Standards and Procedure) and those who obtained the degree in accordance with the abovesaid regulation.
19. Thus, rejecting the contention of the private respondent, following was laid down in paragraph Nos. 16, 17 and 18:
"16. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail.
17. One of the learned counsel for the petitioners argued, based on the language of the direction of the Central Government dated 12.11.2008 that all that the Government wanted UGC to do was to "generally" prescribe NET as a qualification. But this did not mean that UGC had to prescribe this qualification without providing for any exemption. We are unable to accede to this argument for the simple reason that the word "generally" precedes the word "compulsory" and it is clear that the language of the direction has been followed both in letter and in spirit by the UGC regulations of 2009 and 2010.14
18. The arguments based on Article 14 equally have to be rejected. It is clear that the object of the directions of the Central Government read with the UGC Regulations of 2009/2010 are to maintain excellence in standards of higher education. Keeping this object in mind, a minimum eligibility condition of passing the national eligibility test is laid down. True, there may have been exemptions laid down by UGC in the past, but the Central Government now as a matter of policy feels that any exemption would compromise the excellence of teaching standards in universities/ colleges/institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this in fact it is a core function of UGC to see that such standards do not get diluted."
20. Thus, from the above judgment, it is clear that NET qualification is now minimum qualification for appointment of Lecturer and exemption granted to M.Phil. degree holders have been withdrawn and exemption is allowed only to those Ph.D. degree holders who have obtained the Ph.D. degree in accordance with 11.7.2009 regulations, namely, Regulations 2009 of UGC (Minimum Standards and Procedure). Although, this aspect has not been noticed by the High Court but since the learned Single Judge has directed the consideration of the case of the writ petitioner on the basis of M.Phil. degree which was obtained by them by distance education mode prior to 2009, it is necessary that their eligibility for the post be examined taking into consideration the Regulations 2009 of UGC (Minimum Qualifications for Appointment). The advertisement and selection for Guest Lecturers having been conducted in the year 2012 when both the Regulations 2009 of UGC (Minimum Standards and Procedure) and Regulations 2009 of UGC (Minimum Qualifications for Appointment) were applicable." 15
10. The UGC Regulations 2010 have been framed by the University Grants Commission in exercise of the powers conferred on it under clauses (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956. It is in exercise of this power under Section 26(1)(e) and (g), the University Grants Commission has made the minimum qualifications for appointment of Associate Professor and other posts in Universities. This minimum eligibility qualification cannot be relaxed by any University or College where as any qualification over and above this minimum can be prescribed by the Universities or Colleges. The UGC has prescribed the minimum eligibility qualification with an object of maintaining standards in the higher education. Attempt to lower this norm will have an adverse effect on the standards of education in the institutions of higher education which would defeat the very object of the UGC which is a apex expert body.
11. The UGC is a expert body and in its regulations has prescribed the minimum eligibility qualifications to apply for the post of Assistant Professor. The committee of experts constituted by the first respondent is required to strictly follow 16 the regulations and it cannot substitute its own reasoning for overlooking the regulations which provide for minimum eligibility qualifications. It is true that in matter of appointment/selection by an expert committee/board, the Courts should be slow in interfering with the decision taken by experts, but on the face of the record, when the selection committee has ignored or overlooked the minimum eligibility qualifications prescribed by the UGC which is an expert body the Courts cannot be a mute spectator. The petitioner not only possessed all the minimum eligibility qualifications prescribed by the UGC regulations of 2010, but he also was the highest mark scorer at the Maters Degree level among the candidates. The selection committee has overlooked all these aspects and appointed the 2nd respondent who did not even possess the prescribed minimum eligibility qualification.
12. The UGC has prescribed the minimum eligibility qualification for appointment of Assistant Professor (PG) in English and the notification/advertisement dated 11.01.2014 was issued prescribing the minimum eligibility qualification as per the Regulations of 2010 and it was not open to the 1st respondent or the selection committee to relax any one of the 17 minimum requirement qualifications. The 1st respondent University by issuing a certificate of exemption in favour of the 2nd respondent stating that she was not required to undergo course work because she was admitted to Ph.D. Degree course during the year 2006-07 has relaxed the minimum eligibility qualification prescribed by the UGC Regulations of 2010. The minimum qualifications are prescribed for the purpose of maintaining excellence in the higher standards of education and any exemption given would lead to compromising the standard of education and therefore, the appointment of the 2nd respondent, who neither had cleared any of the three eligibility tests conducted either by the UGC or CSIR, nor had obtained a Ph.D. Degree under the Regulations of 2009, nor had obtained Ph.D. Degree with course work, cannot be sustained. Under the circumstances, I proceed to pass the following:
ORDER
(i) Writ petition is allowed.
(ii) The appointment of the 2nd respondent to the post of Assistant Professor (PG) in English vide Annexure-K dated 26.02.2014 issued by the 1st respondent is quashed.18
(iii) The 1st respondent - University is directed to consider the case of the petitioner along with other eligible candidates who had filed their applications seeking appointment to the post of Assistant Professor (PG) in English in response to the notification/advertisement dated 11.01.2014 bearing No.KU-BOA/CV/ADVT/2014/307, in accordance with law and pass necessary orders regarding appointment as expeditiously as possible.
Sd/-
JUDGE Kms