Gauhati High Court
Dr. Lalrokima Chenkual & Ors vs The Mizoram University & Ors on 7 September, 2012
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
AIZAWL BENCH
WRIT PETITION (C) No. 101 of 2011
PETITIONERS :
1. Dr. Lalrokima Chenkual
S/o C. Lalhluna
R/o Bungkawn, Nursery Veng, Aizawl.
2. Dr. R. Lalrempuia
S/o Rev. Lalthangliana
R/o Mission Veng, Aizawl.
3. Dr. Collin Z. Renthlei
S/o R. Thanghmingliana
R/o Umpling, Shillong.
4. Dr. Lalchhuanawma
S/o Lalhunliana
R/o Mission Veng, Aizawl.
5. Dr. P.C. Vanlalhluna
S/o P.C. Thlahliana
R/o Chawlhhmun, Aizawl.
6. Dr. C. Lalmuankimi
S/o C. Lalthawmliana
R/o Ramhlun Venglai, Aizawl.
7. Dr. Saithantluangi Zote
S/o Saichhunga
R/o Dawrpui Vengthar, Aizawl.
By Advocates :
Mr. C. Lalramzauva, Sr. Advocate
Mr. A. Rinliana Malhotra, Advocate
Mr. J. Lalfakawma, Advocate
Mr. T. J. Lalnuntluanga, Advocate
W RI T P ETI TI ON (C) N o. 101 of 2011 P age 1 of 18
RESPONDENTS :
1. The Mizoram University (A Central University Established in the year 2000 by an Act of Parliament), represented by its Vice Chancellor, Tanhril, Aizawl.
2. The Registrar, Mizoram University, Tanhril, Aizawl.
3. The University Grants Commission (through its Secretary), Bahadur Shah Zafar Marg, New Delhi.
By Advocates:
Mr. Nelson Sailo, Sr. Advocate Mrs.Dinari T. Azyu, Advocate for respondent No.3 Mr. Michael Zothankhuma, Sr. Advocate Mr. Lalfakawma, Advocate Ms. D. Lalrinchhani, Advocate for respondent Nos. 1&2 BEFORE THE HON'BLE MR. JUSTICE UJJAL BHUYAN Date of hearing : 04.07.2012 Date of judgment and order : 07.09.2012 JUDGMENT AND ORDER (CAV) By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the action of the Mizoram University in excluding them from the list of eligible candidates for selection and appointment to the post of Assistant W RI T P ETI TI ON (C) N o. 101 of 2011 P age 2 of 18 Professor in different subjects pursuant to the advertisement dated 25.01.2011.
2. The facts of the case may be briefly noted.
3. The 7(seven) petitioners are Ph.D Degree holders from different Universities of the country. The relevant particulars of the petitioners are as under:
Sl. Name Registration No. Year Subject Area of Name of No. of Ph.D research University awarded 1 Dr. Lalrokima 0060 of 1999-2000 2005 Applied Geology Sedimentology/ Dibrugarh Chenkual Geomorphology 2 Dr. Lalrempuia 589 of 18.10.2001 2005 Chemistry Inorganic Chemistry NEHU Ralte 3 Dr. Collin Z. 477 of 27/10/2000 2008 Zoology Entomology NEHU Renthlei 4 Dr. Lalchhuanawma MZU/Ph.D/46 of 2008 Environmental Sc. Ecology MZU 16/12/2004 5 Dr. P.C. Vanlalhluna MZU/Ph.D/47 of 2008 Forestry Agroforesty MZU 17/10/2005 6 Dr. C Lalmuankimi MZU/Ph.D/61 of 2011 Geology Micropalaeontology/ MZU 17/10/2005 Geochemistry 7 Dr. Saithantluangi MZU/Ph.D/109 of 2011 Botany Ecology MZU Zote 30/11/2006
4. The University Grants Commission (UGC) had framed UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulation, 2000. This Regulation was subjected to a number of amendments. In the original 2000 Regulation, it was provided that NET shall remain the compulsory requirement for appointment as Lecturers even for candidates having Ph.D Degree; however, candidates who had W RI T P ETI TI ON (C) N o. 101 of 2011 P age 3 of 18 completed M.Phil Degree or had submitted Ph.D thesis upto 31.12.1993 were exempted from appearing in the NET examination.
5. In the first amendment of 2002, NET was retained as compulsory requirement for appointment as Lecturer even for candidates having Ph.D Degree but the exemption which was available to the candidates having submitted Ph.D thesis upto 31.12.1993 was extended upto 31.12.2002.
6. But in the second amendment brought in the year 2006, there was a significant shift. Candidates having Ph.D Degree were altogether exempted from the requirement of having qualified in the NET examination.
7. By the UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) (3rd Amendment) Regulation, 2009, the following provision was brought in:
"NET/ SLET shall rem ain the m inim um eligibility condition for recruitm ent and appointm ent of Lecturers in Universities/ Colleges/ I nstitutions.
P rovided, how ever, that candidates, w ho are or have been aw arded P h.D. Degree in com pliance of the "University Grants Com m ission (m inim um standards and procedure for aw ard of P h.D Degree), W RI T P ETI TI ON (C) N o. 101 of 2011 P age 4 of 18 R egulation 2009, shall be ex em pted from the requirem ent of the m inim um eligibility condition of NET/ SLET for recruitm ent and appointm ent of Assistant P rofessor or equivalent positions in Universities/ Colleges/ I nstitutions."
The 2009 Regulation came into force with effect from 11.7.2009 i.e. the date of its publication in the Gazette of India.
8. UGC has also framed another set of regulations called UGC (Minimum Standards and Procedure for Award of M.Phil/Ph.D Degree) Regulations, 2009 prescribing the procedure for admission, course work, evaluation and assessment method etc. of such study. As noted above, the above Regulations prescribes that a student admitted to the M.Phil/Ph.D course will have to undertake course work for a minimum period of one semester. These Regulations, which also came into force with effect from 11.7.2009, have made significant changes in the methodology of study and award of Ph.D Degrees.
9. Mizoram University has also framed a number of Ordinances, including OC-4, which provides for admission and eligibility in respect of Ph.D programme. As per clause 2 of the said Ordinance, there will be a compulsory Course Work with a weightage equivalent to that of the M.Phil Course Work, with those having done W RI T P ETI TI ON (C) N o. 101 of 2011 P age 5 of 18 M.Phil or have obtained Grade A in M.Phil Course Work will be exempted from the pre-Ph.D Course.
10. Petitioners contend that they had completed their Course Work before obtaining Ph.D Degree, particularly those who had obtained their Ph.D Degree from Mizoram University.
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 rem ain the m inim um eligibility condition for recruitm ent and appointm ent of Assistant P rofessors in Universities/ Colleges/ I nstitutions.
P rovided how ever, that candidates, w ho are or have been aw arded a P h.D. Degree in accordance w ith the University Grants Com m ission (M inim um Standards and W RI T P ETI TI ON (C) N o. 101 of 2011 P age 6 of 18 P rocedure for Aw ard of P h.D. Degree) R egulations, 2009, shall be ex em pted from the requirem ent of the m inim um eligibility condition of NET/ SLET/ SET for recruitm ent and appointm ent of Assistant P rofessor or equivalent positions in Universities/ Colleges/ I nstitutions."
12. Mizoram University issued Employment Notice dated 25.01.2011 inviting applications for filling up of vacant teaching and non-teaching posts. Amongst the posts advertised was the post of Assistant Professor, both for Post Graduate (PG) level as well as Under Graduate (UG) level. The minimum qualification prescribed for the post of Assistant Professor was good academic record with atleast 55% marks at the Master's Degree level and having cleared NET/SLET/SET. However, 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 were exempted from the requirement of NET/SLET/SET. The petitioners, who are otherwise qualified except having cleared NET/SLET/SET, submitted their applications for the post of Assistant Professor in different subjects pursuant to the said advertisement.
13. When the Mizoram University shortlisted the eligible candidates in connection with the recruitment process pursuant to W RI T P ETI TI ON (C) N o. 101 of 2011 P age 7 of 18 the advertisement dated 25.01.2011, the petitioners found that their names were excluded from the list of eligible candidates.
14. Aggrieved, they are before this court by way of the present petition.
15. This Court on 16.11.2011 directed as an interim measure that the 7(seven) petitioners be permitted to participate in the interview process in their respective subjects, subject to the condition that the results of the interview should not be declared without the leave of the Court.
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 W RI T P ETI TI ON (C) N o. 101 of 2011 P age 8 of 18 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:
"(a)due to non possession of NET/ SLET/ SET.
(b)non-possession of P h.D Degree in accordance w ith the UGC R egulation, 2009 and 2010.
(c) the P etitioners w ere further screened out in certain P ost-Graduate Departm ent/ P osts as they did not possess the desired specialization as per the advertisem ent in the em ploym ent notice dt. 25.1.2011."
W RI T P ETI TI ON (C) N o. 101 of 2011 P age 9 of 18
17. The Mizoram University has asserted that the Petitioners are neither entitled nor eligible to be appointed as Assistant Professor as no exemption from NET/SLET/SET is granted to the candidates who had obtained Ph.D Degree prior to coming into force of the 2009 Regulation.
18. UGC has also filed a detailed counter-affidavit giving the background leading to the requirement of having qualified in NET/SLET/SET as minimum eligibility criteria for appointment as Assistant Professor. UGC has contended that a candidate seeking appointment to the post of Lecturer/Assistant Professor must have the minimum qualifications failing which they will be rendered ineligible to seek such appointment. Therefore, UGC has contended that as the petitioners have not qualified in NET/SLET/SET and as they had obtained or registered themselves for the Ph.D course before coming into force of the 2009 Regulations, they are not entitled or eligible to be appointed as Assistant Professor in the Mizoram University as no exemption from qualifying in NET/SLET/SET is granted to candidates who had obtained Ph.D Degree or registered for Ph.D Degree prior to coming into force of the 2009 Regulations.
19. Petitioners have filed separate rejoinder affidavits in response to the counter-affidavits filed by the Mizoram University and W RI T P ETI TI ON (C) N o. 101 of 2011 P age 10 of 18 the UGC. The stand taken in the rejoinder affidavits is that the 2009 Regulations cannot be made to operate retrospectively. As the Petitioners either obtained Ph.D Degree or had their Ph.D registration prior to the 2009 Regulations, they cannot be made ineligible by application of the 2009 Regulation as the UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) (2nd Amendment) Regulation, 2006 had exempted Ph.D Degree holders from NET/SLET/SET. Petitioners have further contended that they had obtained Ph.D Degree from the Mizoram University as well as other Universities recognized by and affiliated to the UGC which provides for Course Work in their respective guidelines/regulations.
Therefore, to say that the Petitioners are not eligible as because they had not done Course Work would be a travesty of truth, petitioners contend.
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 W RI T P ETI TI ON (C) N o. 101 of 2011 P age 11 of 18 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.
21. He also submits that in other Central Universities like the Assam University, Jammu University and Delhi University, the suggestions of the UGC have been accepted and all candidates who had either obtained Ph.D Degree on or before 31.12.2009 or who had registered themselves for Ph.D Degree on or before 10th July, 2009 and subsequently awarded Ph.D Degree, have been exempted from the requirement of NET/SLET/SET and they have been treated as eligible for appointment as Lecturer/Assistant Professor. Moreover, the methodology of study and award of Ph. D Degree has been changed considerably from the year 2009. Therefore, those candidates who had obtained Ph. D Degree or registered for Ph. D Degree prior to 11.07.2009 cannot be disqualified by application of W RI T P ETI TI ON (C) N o. 101 of 2011 P age 12 of 18 the 2009 Regulation. Finally, learned Sr. counsel refers to a Division Bench judgment of the Allahabad High Court dated 01.12.2010 passed in W .P .(C) No. 49208/ 2010 (Dr. Gaurav Kum ar Singh & others Vs. Vice-Chancellor, BHU and Ors.) to contend that the University cannot insist upon qualifications in accordance with the 2009 Regulations when the Regulations itself became effective from 11.7.2009. He therefore, submits that necessary directions may be issued to the respondents 1 & 2 to treat the petitioners as eligible candidates and to consider their cases on their respective merits.
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 I ndia Researchers' Coordination Com m ittee & Ors. Vs. Union of I ndia(UOI ) & Ors. reported in M ANU/ 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 W RI T P ETI TI ON (C) N o. 101 of 2011 P age 13 of 18 the said Regulations, the petitioners cannot be treated as eligible candidates.
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.
24. The submissions made have been considered.
25. In All I ndia Researchers' Coordination Com m ittee & 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.
W RI T P ETI TI ON (C) N o. 101 of 2011 P age 14 of 18
26. As has been submitted on behalf of the petitioners, the UGC in its 472nd meeting had suggested that 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 10th July, 2009 and subsequently awarded Ph.D Degree should be exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. This view is consistent with the Regulations of 2006 (second amendment) which had altogether exempted Ph.D Degree holders from the requirement of NET/SLET/SET.
27. From the above, the view of the UGC as to the extent of applicability of the 2009 Regulations is clearly discernable.
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 W RI T P ETI TI ON (C) N o. 101 of 2011 P age 15 of 18 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. The relevant portion of the judgment of the Allahabad High Court is as under:
"10. The issue as to w hether the persons w ho have com pleted P h.D. course prior to the enforcem ent of UGC (M inim um Standards and P rocedure for Aw ards of M .P hil/ P h.D Degree) R egulation 2009 dated 1.06.2009 notified on 11.07.2009, has been considered and decided by UGC itself to be prospective in its application.
11. Apart from the m ethod and selections for registration to the P h.D. course, the UGC R egulations of 2009, have also provided for change in the m ethods of selections and aw ard of the degrees such as evaluation and assessm ent. The R egulations 2009, for registering to M .P hil/ P h.D. course and for the aw ard of M .P hil/ P h.D degrees, are, by its very purpose and nature, prospective in application. W e are unable to appreciate as to how the University can insist upon qualifications in accordance w ith 2009 R egulations, w hen the R egulations itself have becom e effective from 7.11.2009 (sic).
W RI T P ETI TI ON (C) N o. 101 of 2011 P age 16 of 18
12. I n our opinion, the persons w ho w ere registered or have com pleted the P h.D course prior to 7.11.2009 (sic) cannot be subjected to hostile and invidious discrim ination. Their P h.D Degrees have to be taken into consideration for the purpose of considering ex em ption from NET/ SLET for appointm ent as Lecturer/ Assistant Director in the University Sports Board of Banaras Hindu University, upto the date of enforcem ent of the UGC R egulations of 2009.
13. The w rit petition is allow ed.
14. The petitioners w ill be treated to be eligible for the posts of Assistant Director in the University Sports Board of the BHU. The university w ill declare the result of the selections, as expeditiously as possible."
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 11.7.2009, they cannot be made subject to the rigour of the 2009 Regulation, which is prospective.
30. Considering the above and taking an overall view of the matter, the writ petition is allowed.
W RI T P ETI TI ON (C) N o. 101 of 2011 P age 17 of 18
31. Petitioners shall be treated as eligible candidates for recruitment to the post of Assistant Professor pursuant to the advertisement dated 25.01.2011 and their cases be accordingly considered. The results of the interview, which was stayed by this court, shall now be declared as expeditiously as possible.
32. Parties to bear their own cost.
JUDGE
Mahruaii/Sushil
W RI T P ETI TI ON (C) N o. 101 of 2011 P age 18 of 18