Gujarat High Court
Meghubha Khetsinh Sodha vs State Of Gujarat on 23 September, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/22652/2019 ORDER DATED: 23/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22652 of 2019
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 22652 of 2019
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MEGHUBHA KHETSINH SODHA
Versus
STATE OF GUJARAT
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Appearance:
MR GIRISH M DAS(2323) for the Petitioner(s) No. 1
MS ASHMITA PATEL, AGP for the Respondent(s) No. 1
MR INDRAVADAN PARMAR(2738) for the Respondent(s) No. 2
MR AKSHAT KHARE FOR MRS SUMAN KHARE(2226) for the
Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 23/09/2021
ORAL ORDER
Heard learned advocate Mr.Girish Das for the petitioner/applicant, learned Assistant Government
Pleader Ms.Ashmita Patel for the respondent No.1, learned advocate Mr.Indravadan Parmar for the respondent No.2 and learned advocate Mr.Akshat Khare for learned advocate Mrs.Suman Khare for the respondent No.4.
1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
"A. Your Lordships be pleased to direct the Respondents to scrupulously follow Sec. 26 of UNIVERSITY GRANTS COMMISSION ACT, 1956 and Mandatory Guidelines issued under Regulation 3 of University Grants Commission (Minimum Standards and Procedure for Award of M.Phil. / Ph.D. Degrees) Regulations, 2016 in the interest of justice by holding the Advertisement dated 19 / 11 / 2019 (Annex."B') to be illegal, unsustainable and not binding on present Petitioner having Degree of M.Phil. as per requirement of the Law.Page 1 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022
C/SCA/22652/2019 ORDER DATED: 23/09/2021 B. Pending hearing and final disposal of this Petition Your Lordships be pleased to Stay the admission process of Admitting and selecting Studerits through Entrance Test scheduled on 22nd December, 2019 for the academic year 2019 - 2020 in connection with Ph.D. Programme in the interest of justice.
C. Pending hearing and final disposal of this Petition Your lordships be pleased to direct the Respondents not to declare Result qua Ph.D. Entrance Examination scheduled on 22 nd December, 2019 if there is no stay, AND final decision we be subject to outcome of this Petition in the interest of justice.
D. Your Lordship be pleased to grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."
2.1. It is the case of the petitioner that the petitioner has cleared and passed Master of Philosophy (for short 'M.Phil.') degree from the respondent No.2-University.
2.2. According to the petitioner, as the petitioner has obtained the M.Phil. degree, the petitioner is not required to appear for entrance examination for Ph.D. degree and petitioner is required to be exempted from entrance examination for the Ph.D. degree which is held by the respondent No.2-University as per the advertisement dated 22nd December, 2019.
3.1. For the aforesaid submission, learned advocate Mr.Das relied upon the various provisions of the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degrees)
Regulations, 2016 (for short 'Regulations, 2016').
3.2. Learned advocate Mr.Das relied upon clause 3.2 pertaining to the eligibility criteria for admission to Ph.D. programme and clause 5.1 prescribing procedure for admission and submitted that as per both the clauses of the Regulations, 2016, petitioner is required to be Page 2 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022 C/SCA/22652/2019 ORDER DATED: 23/09/2021 exempted from the entrance examination which is conducted by the respondent No.2-University as the petitioner has passed M.Phil. course.
3.3. It was submitted that the respondent No.2-University cannot frame its own Regulations contrary to the Regulations, 2016 in view of the Article 254 of the Constitution of India.
3.4. Learned advocate Mr.Das submitted that the University Grants Commission Act, 1956 authorises the University Grants Commission (for short 'the UGC') to frame Regulations under Section 26 of the said Act and accordingly, the Regulation 2016 are framed and hence, the respondent No.2-University cannot frame any Regulation contrary to the Regulations framed by the UGC.
3.5. It was submitted that the mandatory provision binding upon the respondent No.2-University clearly indicates that students who has successfully cleared M.Phil. are eligible to do research work leading to the Ph.D. degree in the same Institution, but the advertisement does not exempt the students who have passed M.Phil. from the respondent No.2-University and hence, such advertisement is required to be quashed qua the petitioner and the petitioner should be directly permitted to do the research work for Ph.D. degree.
3.6. Learned advocate Mr.Das relied upon the decision of the Apex Court in case of University of Delhi Vs. Anand Verdhan Chandal reported in 2000 (10) SCC 948 to submit Page 3 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022 C/SCA/22652/2019 ORDER DATED: 23/09/2021 that the education is a fundamental right and such question is finally decided by the Apex Court in the case of Unnikrishnan J. P. and Ors. Vs. State of A.P. and Ors reported in 1993 (1) SCC 645.
3.7. It was also submitted that the respondent No.2- University by framing the rule requiring the students who have passed M.Phil. to appear in the entrance examination of Ph.D. for Pd.D. degree course is illegal and not tenable in law in view of the specific regulations made by the University Grants Commission under powers conferred by the University Grants Commission Act and therefore petitioner cannot be compelled to appear in the entrance examination conducted by the respondent- University.
3.8. It was also pointed out by learned advocate Mr.Das that similarly situated students of other Universities who have passed M.Phil. course, are directly permitted to pursue the Ph.D. degree course without requiring such students to appear in the entrance examination for the Ph.D. course and therefore there is violation of Article 14 vis-a-vis the petitioner as the respondent-University has not exempted the petitioner from appearing in the entrance examination which was conducted for admission in the Ph.D. course.
4. This Court (Coram: Hon'ble Mr.Justice Biren Vaishnav) passed the following order on 19.12.2019 :
"NOTICE returnable on 10.01.2020. In the meantime, as stated by Mr.Girish Das learned advocate for the petitioner, the petitioner shall appear in the entrance examination. However, that will be subject to the further orders that may be passed by this Court. Direct service is permitted."Page 4 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022
C/SCA/22652/2019 ORDER DATED: 23/09/2021
5. Pursuant to the aforesaid order, the petitioner was permitted by the respondent No.2-University to appear in the entrance examination.
6.1. On the other hand, learned advocate Mr.Parmar submitted that on perusal of clause 3.2 of the
Regulation, 2016 it appears that the students who have successfully completed M.Phil. degree are eligible to proceed with the research work leading to Ph.D. degree in the same institution in an integrated programme. It was submitted that the petitioner was not pursuing any integrated programme of M.Phil. and Pd.D. together and therefore on completion of M.Phil Course, the respondent No.2-University has awarded a degree of M.Phil. to the petitioner which is produced by the petitioner pursuant to the order passed by this Court on 16th September, 2021 which clearly shows that the petitioner was awarded the degree of Master of Philosophy (Education) by the respondent No.2-University in July, 2018 and thereafter the petitioner was desirous to pursue the Ph.D. degree course in the year 2019 and hence, the petitioner was not pursuing any integrated course and therefore, clause 3.2 of Regulation, 2016 would not be applicable to the petitioner so as to exempt the petitioner from the appearance in the entrance examination for Ph.D. programme.
6.2. It was further submitted that the respondent No.2- University is authorized to frame its own separate terms and conditions for Ph.D. entrance examination for those students who qualify UGC-NET (including JRF) or have Page 5 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022 C/SCA/22652/2019 ORDER DATED: 23/09/2021 passed M.Phil. programme and accordingly the Board of University Teaching and Research (B.U.T.R) of the respondent No.2-University established under Section 28 of the Krantiguru Shyamji Krishna Verma Kachchh University Act, 2003 (for short 'the Kachchh University Act, 2003') read with Statute 89.4, the respondent No.2- University has framed the Regulations prescribing that the students who have passed M.Phil. are also required to appear in the entrance examination for Ph.D. programme and by Resolution No.3 in the meeting held on 19 th January, 2019, the Ordinance No.158.4 (2) was amended accordingly making it compulsory for the students having M.Phil. qualification to compulsory appear for entrance examination for Ph.D. programme.
6.3. Learned advocate Mr.Parmar relied upon following averments in the affidavit filed on behalf of the respondent No.2-University :
"In this context, following submission deserves due consideration:
(i)Regulation 3 of 2016 deals with Eligibility criteria for admission to Ph.D. Program and Clause 3.2 thereof is related to integrated programs and it is not the case of the Petitioner that he was an M. Phil.
student of an integrated program. Further, Regulation 3.3 is concerned with M.Phil. degree possessed by the candidates from foreign educational institutions. So, none of the clauses of Regulation 3 can assist the case of the Petitioner as erroneously canvassed.
(ii) Regulation 5 (Procedure for admission) did not provide exemption to M.Phil. students - expressly or impliedly by any stretch of imagination or interpretation.
(iii) Regulation 5 mandates that all universities and institutions that deemed to be universities to admit M.Phil./Ph.D. students throgh an Entrance Test conducted at their level. This makes it clear that admission to Ph.D. program is through an Entrance Test only.
(iv) Further, it provides the university/institution deemed to be a university to decide separate terms and conditions for Ph.D. Entrance Test for various categories/classes of students aspiring for Ph.D. Degree including those who have passed M. Phil. programme in which a case of the Petitioner falls.
(v) It is submitted that Board of University Teaching and Research (B.U.T.R.) established under Section 28 of the Krantiguru Shyamji Krishna Verma Kachchh University Act, 2003 (for short 'the Kachchh University Act, 2003') has powers and duties under Statute 89.4 of the said Act of 2003 to make the recommendations regarding regulations of M.Phil & Ph.D. Degrees which is reproduced hereunder :
> Section 28 (that deals with University Boards) reads as under :Page 6 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022
C/SCA/22652/2019 ORDER DATED: 23/09/2021 (1) The University shall establish a Board of University Teaching and Research, a Board of Extra-
Mural studies, a Board for Hostels Management, a Planning Board, a Board for Students Welfare and such other Boards as may e prescribed by the Statutes.
(2) The constitution, powers and duties of each of the Boards established under sub-section (1) shall be such as may be prescribed by the Statutes.
* Statute 89 : Board of University Teaching & Research :
* Statute 89.1 : Constitution of the Board of University Teaching & Research :
XXX XXX XXX > Statute 89.4 : Powers & Duties - Board of University Teaching & Research :
The Board of University Teaching & Research shall exercise the following powers an perform the following duties namely :
(i) to maintain standards of post-graduate teaching and research ;
(ii) to advise to Board of studies regarding any trend in post-graduate syllabus, instructions and any other developments ;
(iii) to make recommendations regarding the admission to, and evaluation of Research degrees;
(iv) to make recommendations regarding the regulations of M.Phil & Ph. D. Degrees (V) XXX XXX XXX (Vi) XXX XXX XXX (VII) XXX XXX XXX (VIII) XXX XXX XXX
(vi) It is submitted that neither decision-making process of not covering/not exempting M.Phil students from Ph. D. Entrance Examination - 2019 nor powers and duties acquired under Statute 89.4 of the Kachchh University Act, 2003 nor the proceedings and resolutions passed in BUTR meetings are under challenge or controverted.
(vii) By virtue of afore-stated clause 5.1 of Regulation 5 of the University Grants Commission (Minimum Standards and Procedure for award of M.Phil./Ph.D. Degrees) Regulations, 2016, the UGC - the premier statutory body charged with coordination, determination and maintenance of higher university education permits the universities and institutions that deemed to be universities to decide separate terms and conditions for Ph.D. Entrance Test. Accordingly, Respondent No.2- University had passed certain resolutions in BUTR meetings, viz., (a) dated : 20.10.2016 (to consider 10 % marks of M.Phil. Degree to such students after passing Ph.D. Entrance Examination), (b) dated : 19.01.2017 (for proposing amendment in Ordinance 158.4 (2) to make Ph.D. Entrance Examination compulsory for M.Phil. passed students) and (c) dated : 17.10.2019 (for continuing a resolution passed in meeting - dated : 19.01.2017 for making Entrance Test compulsory for M.Phil. students for admission in Ph.D. Program) that all being in consonance with and in conformity of aforesaid statutory prescriptions and procedures and rules laid down in this regard that had been communicated to the Petitioner as per letter/reply - dated : 09.12.2019 which is a part of record (annexed at pg. No.22 by the Petitioner himself) and are not under any controversy or challenge except vaguely terming the said resolutions as 'Cloistered Resolutions'. Thus there is no illegality, arbitrariness etc. having committed by Respondent No.2 as alleged.
Hereto annexed and marked as Annexure - R/1, R/2 and R/3 are copies of minutes of the said meetings - dated : 20.11.2016, 19.01.2017 and 17.10.2019 respectively."
6.4. Relying upon the aforesaid averments, learned advocate Mr.Parmar submitted that the respondent No.2- University has not violated any of the regulations of Regulation, 2016 and therefore the petitioner is not entitled to any relief claimed in this petition.
Page 7 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022C/SCA/22652/2019 ORDER DATED: 23/09/2021 6.5. It was further submitted that there is no violation of any fundamental right of the petitioner as sought to be canvassed on behalf of the petitioner. Learned advocate Mr.Parmar in support of his submission relied upon the decision of the Apex Court in case of Controller of Examinations vs. G.S.Sunder reported in 1992 (2) GLH 140 and submitted that the petitioner who desires to acquire ultimate supreme academic qualification of Ph.D. degree is expected to face the entrance examination and succeed respecting the examination rules and regulations laid down by the respondent No.2-University.
6.6. Reliance was also placed on the decision of the Apex Court in case of Municipal Council, Neemuch Vs. Mahadeo Real Estate and ors. reported in (2019) 10 SCC 738 which provides that the scope of Judicial review of an administrative action is very limited. It was therefore submitted that the respondent No.2-University while discharging the administrative function under the powers conferred by the Regulation, 2016 has decided to hold entrance examination for the candidates who are also qualified as M.Phil. and therefore no illegality is committed by the respondent No.2-University by issuing the impugned advertisement requiring the petitioner to appear in entrance examination for Ph.D. degree.
7.1. Learned advocate Mr.Akshat Khare relied upon the following averments in the affidavit-in-reply filed on behalf of the respondent No.4:
"4. I say and submit that all universities (including said university) are required to comply all provisions / directions and regulations of UGC, UGC has earlier framed UGC (Minimum Standards And Procedure For Award of M.Phil / Ph.D Degree) Regulations, 2009 for prescribing norms for awarding degree of M.Phil / Ph.D. Thereafter, the said regulations were Page 8 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022 C/SCA/22652/2019 ORDER DATED: 23/09/2021 superseded UGC (Minimum Standards And Procedure For Award of M.Phil/Ph.D Degree) Regulations, 2016 (further referred as "Regulation 2016") The said regulations are mandatory for all educational institutions for awarding degree of M.Phil & Ph.D. In the said Regulation 2016,
(i) The clause no. 3 prescribe eligibility criteria for admissions in Ph.D program as per which a candidate must posses Master's Degree or M.Phil with at least 55% aggregate marks or any foreign degree equivalent to M.Phil and recognized by Foreign Statutory body.
(ii) Further, the clause no. 5.1 prescribes procedure for admissions in M.Phil & Ph.D programs are to be done through Entrance Test conducted at university or institution level. The said clause further make provision for universities to decide separately the terms & condition for Ph.D entrance test for those students who qualify UGC-
NET(including JRF) / UGC-CSIR NET (including JRF) / SLET / GATE / teacher fellowship holder or who have passed M.Phil program.
(iii) The following proviso shall be added to the clauses 5.4.2 of the UGC (Minimum Standards and Procedure for Awards of M.Phil/Ph.D Degree) Regulations 2016.
"provided that for selection of candidates, a weightage of 70% to the entrance test and 30% to the performance in the interview/viva-voce shall be given".
However, there are no provisions in the said Regulation 2016 with regard to waiver of entrance test or interview for any of the category of students. It is pertinent to mention herein that UGC had already issued letter dt. 06/07/2015 to all universities for directing them adhere to Regulations 2009 and any further regulations thereafter while awarding degrees of M.Phil/Ph.D. A copy of letter dt. 06/07/2015 issued by UGC to said university is annexed herewith and marked as Annexure-RI."
7.2. Relying upon the aforesaid averments in the affidavit-in-reply it was submitted that there are no provisions in the Regulation 2016 with regard to waiver of entrance test or interview for any of the category of students including the M.Phil. students. It was pointed out that the University Grants Commission has issued the notification dated 16th October, 2018 and the Regulation, 2016 were amended by University Grants Commission (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degrees) (2nd amendment) Regulations, 2018 and by these Regulations of 2018, clause no.5.4.2 of the Regulations 2016 is amended and provisio is added to the effect that "provided that for selection of candidates, a weightage of 70% to the entrance test and 30% to the performance in the interview/viva-voce shall be given".
Page 9 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022C/SCA/22652/2019 ORDER DATED: 23/09/2021 It was therefore, submitted that thus by amendment made in the year 2018 it was made compulsory for every student to appear in the examination so as to consider the weightage of the marks obtained in such entrance test examination in addition to the interview to be conducted by the concerned University for the admission to the Ph.D. programme.
8. Having heard the learned advocates for the respective parties and having considered the material placed on record including the provisions of Regulations, 2016 and the Katchchh University Act, 2003 as well as the Ordinance issued thereunder, it appears that as per Regulations, 2016 following two clauses requires to be considered for the purpose of the issue raised in this petition as to whether the petitioner is required to be exempted from appearing in the entrance test for pursuing the Ph.D. degree course with the respondent No.2- University or not :
"3. Eligibility criteria for admission to Ph.D.programme:
Subject to the conditions stipulated in these Regulations, the following persons are eligible to seek sdrmssion to the Ph.D. programme:
3.1 Master's Degree holders satisfying the criteria stipulated under Clause 2 above.
3.2 Candidates who have cleared the M.Phil. course work with at least 55% marks in aggregate or its equivalent grade 'B' in the UGC 7-point scale (or an equivalent grade in a point scale wherever grading system is followed) and successfully completing the M.Phil. Degree shall be eligible to proceed to do research work leading to the Ph. D. Degree in the same Institutioy in an integrated prognmine. A relaxation of 5% of marks, from 55% to 50%, of an equivalent relaxation of grade, may be allowed for those belonging to SC/ST/OBC (non-creamy layer)/dilfevently-abled and other categories of candidates as per the decision of the Commission from tine to time.
3.3 A person whose M.Phil. dissertation has been evaluated and the viva voce is pending may be admitted to the Ph.D. programme of the same Institution.
3.4 Candidates possessing a Degree considered equivalent to M.Phil. Degree of an Indian Institution, from a Foreign Educutional Institation accredited by an Assesament and Accreditation Agency which is approved, recognized or authorized by an authority, established or incorporated under a law in its home country or any other statutory authority in that country for the purpuse of assessing, accrediting or assuring quality and standards of educational institutiuns, shall be eligible for admission to Ph.D. programme.Page 10 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022
C/SCA/22652/2019 ORDER DATED: 23/09/2021 5. Procedure for admission:
5.1 All Universities and Institutions Deemed to be Universities shall admit M.Phil./Ph.D. students through an Entrance Test conducted at the level of Individual University/Institution Deemed to be a University. The University/Institution Deemed to be a University may decide separate terms and conditions for Ph.D. Entrance Test for those students who qualify CGC-NET (including JRF)/SLET/GATE teacher fellowship holder or have passed M.Phil programme. Similar approach may be adopted in respect of Entrance Test for M.Phil programme."
9. On perusal of the aforesaid two clauses, it is clear that clause 3.2 stipulates that the candidates who have cleared the M.Phil. course work shall be eligible to proceed to do research work leading to the Ph.D. Degree in the same institution in an integrated programme. Meaning thereby, the student who is pursuing M.Phil. along with Ph.D. can pursue the Ph.D. programme in an integrated programme. With regard to the procedure for admission as provided by Regulations, 2016, clause 5.1.
is clear to the effect that all Universities and Institutions Deemed to be Universities are required to admit M.Phil. and/or Ph.D students through an Entrance Test conducted at the level of such Institution and such Institution may also decide separate terms and conditions for Ph.D. Entrance Test for those students who qualify UGC-NET etc., teacher fellowship holder or have passed M.Phil. programme.
10. It is therefore required to be considered that whether the person is qualifying for UFC-NET programme of teacher fellowship holder or have passed M.Phil. programme is required to appear for entrance test for admission in Ph.D. programme or not. However, it is pertinent to note that seperate terms and conditions are to be prescribed by each Institution or University and in such circumstance, when the respondent No.2-University Page 11 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022 C/SCA/22652/2019 ORDER DATED: 23/09/2021 under the powers conferred by Section 28 of the Kachchh University Act, 2003 read with Ordinance 89.4 has passed a resolution with regard to making it compulsory for the students who have passed M.Phil. degree to appear in the Entrance Test to be conducted for the Ph.D. programme, it cannot be said to be contrary to the provisions of the Regulations, 2016.
11. It is also pertinent to note that the respondent No.4-UGC has also made it clear in the affidavit-in-reply filed before this Court that there is no provision in the Regulations, 2016 with regard to waiver of the entrance test or interview for any of the category of the students. Such averment is further fortified by amended Regulation of 2018 which prescribes weightage for entrance test and interview for the admission in the Ph.D. degree programme.
12. In view of the aforesaid facts emerging from the record and for the foregoing reasons, the petition fails as there is no violation of any fundamental right of the petitioner nor it can be said that the respondent No.2- University has prescribed for the M.Phil. students to appear in the entrance test for Ph.D. programme is contrary to the Regulations, 2016. Accordingly, the petition is dismissed with no order as to costs. Notice is discharged.
(BHARGAV D. KARIA, J) PALAK Page 12 of 12 Downloaded on : Sun Jan 16 17:36:05 IST 2022