Gujarat High Court
Dr. Rachita Vijaykumar Jayswal vs The Gujarat Technological University ... on 25 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8631 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DR. RACHITA VIJAYKUMAR JAYSWAL
Versus
THE GUJARAT TECHNOLOGICAL UNIVERSITY THROUGH THE
REGISTRAR
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Appearance:
MR HRIDAY BUCH(2372) for the Petitioner(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 1
MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 25/03/2022
CAV JUDGMENT
1 This petition under Article 226 of the Constitution of India is filed by the petitioner praying to issue a writ of quo warranto and / or writ of mandamus or any other appropriate writ to hold and declare the Page 1 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 appointment of the respondent No.2, Dr.Kaushal Arvindkumar Bhatt as bad as he is ineligible to hold the post of Associate Professor (Management) in the Gujarat Technological University. It is further prayed that the respondent University be directed to consider the case of the petitioner for appointment to the post of Associate Professor (Management) as per her selection pursuant to the Advertisement NO.20/2019.
2 Facts in brief are as under:
2.1 The Gujarat Technological University issued a public advertisement inviting applications amongst others being Advertisement No.20 for two posts of Associate Professor (Management), one post for a general category candidate and one post for S.T category candidate. As per the advertisement, the qualification prescribed was Ph.D degree in Management with first class or equivalent at either Bachelors' or Masters' level in the relevant / appropriate branch or equivalent branch.
The incumbent also had to have minimum of eight years experience in teaching / research / industry out of which, at least two years shall be post Ph.D experience.
2.2 Eight candidates were qualified for personal interview. The Selection Committee conducted personal interviews and a list of selected candidates was published on 06.11.2019. The University, selected the Page 2 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 respondent No.2, Dr.Kaushal Arvindkumar Bhatt for the post of Associate Professor - Management and the name of the petitioner was kept in waiting list at serial no.1. Selection of the respondent No.2 has brought this petition.
3 Mr.Hriday Buch, learned Counsel for the petitioner, would submit that the respondent No.2 lacks the basic qualification as per the statutory rules and the advertisement. In support of this submission, he would state that the advertisement when read indicates that an incumbent ought to have a Ph.D degree in Management. The advertisement also provided that the qualification for the post in the advertisement was the one as prescribed as per the AICTE notification.
3.1 Mr.Buch, learned advocate, would submit that under Sec.43(2) of the Gujarat Technological University Act, in accordance with Regulation 21, it was open for the Board of Governors to prescribe qualifications higher than the one prescribed by AICTE. Reading Regulation 21 with the proviso thereto, Mr.Buch, learned advocate, would submit that as per the proviso the Board of Governors shall be competent to make such additions to the qualifications as may be necessary. 4 It is the submission of Mr.Buch, learned advocate, that as was evident from the information received by the petitioner under the Right to Page 3 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 Information Act, the respondent No.2, had done his Ph.D and his graduation / post graduation in the field of commerce. He therefore, lacks the basic qualification "Ph.D Management".
4.1 Even as per the All India Council for Technical Education Notification dated 01.03.2019, the qualification for Associate Professor for direct recruitment was Ph.D degree in the relevant field and first class or equivalent at Bachelor or the Master level in the relevant branch. The petitioner had a Ph.D degree in Management and was therefore eligible. He would rely on the testimonials placed together with the call letter. As far as respondent No.2 was concerned, he would submit that from the documents on record it was clear that the respondent No.2 had done his Ph.D degree in commerce, that he had done his Masters in commerce and was holding a degree of Masters of Business Administration from distant learning i.e. Indira Gandhi National Open University. He would rely on the regulation of the Saurashtra University, namely, (v) of Regulation 3 of the Procedure for Admissions which prohibited a candidate to register simultaneously for more than one post graduate course. 4.2 To the contention of the University that the respondent No.2 had though a Ph.D degree in commerce, it could be considered as equivalent Mr.Buch would submit that merely because the subjects of Management are taught in the pursuit of an M.Com degree or that of Commerce in the course of Management studies, would not render the appointment of the Page 4 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 respondent No.2 valid. No support can be drawn from the AICTE qualification criteria. He would also submit that even the UGCFAQ relied by the University in context of the question whether when recruiting a candidate for commerce subject does a candidate having done M.B.A become relevant subject for commerce and the answer to that FAQ relied upon by the University is misconceived because they were in the context of M.Com and not relevant for M.B.A which is a programme approved by AICTE.
4.3 Mr.Buch, learned advocate, would also submit that though it was necessary for the University to call eight candidates for interview, based on the RTI reply, it is evident that the University had called ten candidates for interview as is evident from the list produced at page 67/J. 4.4 Mr.Buch, learned advocate, would further submit that the opinion of Dr.Kulkarni, the Vice Chancellor of S.P University sought by the GTU by its letter dated 09.10.2019, in context of equivalence with regard to Dr.Bhatt's appointment and such opinion given by Dr.Kulkarni the very next day opining that commerce is allied / relevant branch of Management and therefore the candidate with the basic degree in M.B.A and PH.D in commerce is eligible is misconceived.
4.5 Even on the question of the experience of the respondent, Mr.Buch, learned advocate, would submit that the respondent did not possess the requisite experience as he had worked on a contractual basis over a period Page 5 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 of five years under seven different contracts. It cannot be taken as requisite experience.
4.6 Mr. Hriday Buch, learned advocate, has relied on a Full Bench Decision of this Court reported in 2013 1 GLR pg 265 in the case of Mukesh V. Chavda & Anr. vs. State of Gujarat & Ors., wherein the Full Bench of this Court had issued a writ of quo warranto setting aside the appointment of the Registrar who had simultaneously registered for two degrees.
5 Mr.D.G.Shukla, learned counsel appearing for the Gujarat Technological University, would rely on the affidavit in reply filed by the Registrar. He would submit as under:
5.1 The All India Council of Technical Education by its Notification dated 01.03.2019, provided for minimum qualification. As per regulation No.5.1(b), minimum qualification for direct recruitment as an Assistant Professor was Bachelor Degree in any discipline and Masters Degree in Business Administration / PGDM / CA / ICWA / M.Com with first class etc. Regulation 5.2(c) prescribing qualifications for Associate Professor provides for Ph.D degree in the relevant field and first class or equivalent at Bachelor or the Master level in the relevant branch. He would therefore submit that since Masters Degree in Business Administration has been considered equivalent with M.Com as far as recruitment of Assistant Page 6 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 Professor is concerned, the subjects of M.B.A and commerce are considered as subjects in the relevant field. He would rely on respective syllabi of M.Com and M.B.A to submit that both have subjects of Management and / or commerce as the case may be. Therefore, Ph.D in commerce and M.Com can be considered as relevant / appropriate and equivalent as possessed by respondent No.2.
5.2 Mr. Shukla, learned advocate, would rely on the UCG clarification and submit that when asked for relevance of MBA and commerce equivalence for recruitment, the UGC had opined that the relevance of the subject is required to be decided by the concerned University with the help of experts. Accordingly, the University had sought advise from the Professor, Dr.Shirish Kulkarni, Vice Chancellor, S.P University and he had opined that the respondent No.2, was eligible for the post of Associate Professor.
5.3 Mr.Shukla, learned advocate, would submit that holding of Office of Associate Professor (Management) is not public office and no writ of quo warranto would lie.
6 Mr.Vaibhav Vyas,learned counsel appearing for the respondent No.2 would submit that the challenge to the appointment of respondent No.2, on the ground that he does not possess requisite educational qualification and experience is misconceived. The respondent is a B.Com Page 7 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 first class, M.Com first Class, M.Phil with distinction, M.B.A from IGNOU and Ph. D from Saurashtra University. He would also reiterate Mr.Shukla's submission in context of AICTE regulations. He would submit that for promotion as well as direct recruitment, since the qualifications are the same, i.e. Ph. D degree in relevant field, both have to be read conjointly and once M.Com is treated as a relevant qualification for the feeder cadre of Assistant Professor, the same should be considered as relevant and appropriate for the direct recruitment to the post of Associate Professor.
6.1 Mr.Vaibhav Vyas, learned advocate, would further submit that the respondent NO.2 is a recognized supervisor for Ph.D aspirants in the subject of Management. He is a guide to the students pursuing Ph.D and M.Phil degrees. No reliance can be placed by the petitioner on the scrutiny committee's report at first point of time which declared him ineligible as he was subsequently considered eligbile by the second report.
6.2 Proviso to Regulation 21 pressed into service by the petitioner is misconceived. The experience of the respondent No.2 is for a period of more than six years as Assistant Professor in J.V.I.M.S, MBA College and six and a half years as Assistant Professor Management to the respondent University in centre for Global Business Studies though the Page 8 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 appointment was contractual.
6.3 Reliance is placed by Mr.Vyas, learned advocate, on the decision of the Tripura High Court in the case of Shri Chandra Shekhar Pillai vs. The Tripura University., in support of his submissions that commerce and management are two interdisciplinary subjects. 7 Considering the submissions made by the learned counsels for the respective parties, it will be relevant to consider as to how the qualification as prescribed in the advertisement should be interpreted. The qualification for the post of Associate Professor (Management) reads as under:
"(a) Ph.D degree in Management with first class or equivalent at either Bachelor's or Master's level in the relevant / appropriate branch or equivalent branch.
AND
(b) At least total 6 research publication in SCI journals / UGC / AICTE approved list of journals.
AND
(c) Minimum of 8 years of experience in teaching /research / industry. Out of which at least 2 years shall be post Ph.D experience.
(d) Possess the basic knowledge of Computer application as prescribed by the Government of Gujarat."
7.1 Reading the qualification makes it clear that an incumbent should have a Ph.D degree in Management and have a first class or equivalent at either Bachelor's or Master's level in the relevant / appropriate branch. In the present case, the petitioner was a Ph.D in Management whereas the Page 9 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 respondent No.2 holds a Ph.D in commerce. By no strecth of interpretation can a Ph.D in Commerce be treated to be equivalent to a Ph.D in Management, though the subjects may overlap. This is because the primary requirement for the post is a Ph.D in Management. The petitioner is qualified and available and even the first Scrutiny Committee opined that the respondent No.2 was ineligible. No special circumstances were brought out why a second Scrutiny Committee opined otherwise. 7.2 Admittedly, the advertisement stipulates that the educational qualifications shall be as prescribed by the AICTE. The respondents would want the Court to read the qualifications as in the advertisement to be read as Ph.D degree in Management or one in an equivalent branch and a Bachelor's or a Master's in such relevant / appropriate or equivalent branch. It is in this context that great emphasis has been laid by the University as well as the respondent No.2 to convince the Court that a Ph.D in commerce is a Ph.D which is equivalent or relevant to that of a Ph.D degree in Management. The contention of the respondents is wholly misconceived.
7.3 The confusion that the respondents have sought to create can be cleared by reading the qualification prescribed by the AICTE as per its Notification dated 01.03.2019. Regulation 5.2(c) of the notification dated 01.03.2019 which provides for qualification of Associate Professor and which is relevant for the purpose reads as under:
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C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 "5.2(c) Qualification for Associate Professor (Level-13A1, Entry Pay131400/-) For Direct Recruitment a. Ph.D. Degree in the relevant field and First Class or equivalent at either Bachelor's or Master's level in the relevant branch AND b. At least total 6 research publications in SCI Journals / UGC / AICTE approved list of journals.
c. Minimum of 8 years of experience in teaching / research / industry out of which at least 2 years shall be post Ph.D experience."
7.4 It provides that for being eligible to be appointed as an Associate Professor by direct recruitment, an incumbent should have a Ph.D degree in the relevant field. Relevant field in this context has to be in the field of Management. Obviously therefore, the advertisement of the GTU required that in order to be eligbile for appointment for an Associate Professor by direct recruitment an incumbent essentially and primarily must hold a Ph.D in Management. The argument therefore about the relevance of Management versus Commerce in context of the syllabi and the opinon of Dr.Kulkarni pales into insignificance. The FAQ of the UGC also is in context of equivalence of M.Com vs. MBA and the UGC regulation therefore cannot be pressed into service when there are special qualification prescribed by the AICTE. It is in this context that "relevant branch" has to be read. The University and the council for the respondent No.2 are distorting the Court into getting into the arena of the question of relevance, appropriateness and / or equivalence of the course of Page 11 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022 C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 Management vs. Commerce. The court need not step into that controversy when the primary consideration is whether an incumbent needs the degree of Ph.D in Management for being considered. Admittedly, the respondent NO.2 does not hold a Ph.D in Management but a Ph.D in commerce. The advertisement qualifications have to be read in context of the AICTE notification and therefore, the reading cannot be split to mean that the Ph.D degree needs to be in a field relevant to or appropriate to that of commerce. Ph.D in Management is a sine qua non. Since the Court is primarily of the opinion that the respondent No.2 does not hold the basic qualification it need not get into the question of an alternative argument submited by Mr.Buch about experience of the respndent No.2 . The decison of this Court in the case of Mukesh Chavda (supra) is squarely applicable to the facts of the case particularly when looking to the certificates that the respondent No.2 apart from he not holding the basic degree pursued M.B.A from IGNOU simultaneously with Ph.D in violation of the Saurashtra University's regulation. The post of Associate Professor (Management) is to be occupied by a person of an appropriate qualification. Respondent No.2 admittedly does not possess the qualification and is therefore not entitled to occupy the post. Hence, the respondent No.2 is entitled to be unseated from the post in question as he is unqualified to hold the same.
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C/SCA/8631/2020 CAV JUDGMENT DATED: 25/03/2022 8 Accordingly, the petition is allowed. The appointment of the respondent No.2, Dr. Kaushal Arvindkumar Bhatt, as Associate Professor (Management) with the respondent No.2 University is quashed and set aside. The respondent No.2 shall forthwith vacate the post in question. The Gujarat Technological University is directed to consider the petitioner for the post in question as she is the candidate who holds the qualifications prescribed for the post.
(BIREN VAISHNAV, J) Bimal FURTHER ORDER After the pronouncement of judgement, Mr.Vyas, learned counsel for the respondent No.2, requests that the operation and implementation of the order be stayed for a period of four weeks. Implementation and operation of the order is stayed till 13.04.2022.
(BIREN VAISHNAV, J) Bimal Page 13 of 13 Downloaded on : Sun Mar 27 01:35:15 IST 2022