Calcutta High Court (Appellete Side)
For The vs Vice Chancellor on 1 April, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
1.4.2014
ac
F.M.A. 1585 of 2013
(CAN 2990 of 2013)
with
MAT 882 of 2013
(CAN 5830 of 2013)
with
MAT 883 of 2013
with
CAN 5831 of 2013)
Mr. Partha Sarathi Bhattacharya,
Mr. Arunava Maiti.
...For the Appellants in
FMA 1585 of 2013.
Mr. Ekramul Bari,
Mr. S.S. Mondal.
...For the Appellants in
MAT 882 of 2013 &
MAT 883 of 2013.
Mr. Anil Kr. Gupta.
...For the UGC.
Mr. Pulak Ranjan Mondal,
Ms. Bandana Das.
...For the College
Service Commission.
Mr. Debabrata Chatterjee.
...For the State in
MAT 882 of 2013.
Mr. Jaharlal De,
Mr. Shamim-ul-Bari.
...For the State in
MAT 883 of 2013.
Challenging the legality of the advertisement No. 1
of 2012 published by the Chairman, West Bengal College Service
Commission, the appellants herein filed a writ petition
being W.P. No. 3075(W) of 2013. The bone of contention of the
petitioners in the said writ petition was that the petitioners who
were awarded Ph.D. degree in terms of the Regulation of 2006
were discriminated unreasonably as they were not exempted
from the requirement of the minimum eligibility condition of
NET/SLET for recruitment and appointment of Assistant
2
Professor or equivalent positions in
Universities/Colleges/Institutions though such exemption was
granted to the candidates who were or have been awarded Ph.D.
degrees as per the University Grants Commission (Minimum
Standards and Procedure for Award of Ph.D. Degree) Regulation,
2009. Accordingly, they filed a writ petition praying for issuance
of a writ in the nature of mandamus commanding the
respondents to give a declaration that the petitioners who were
registered for Ph.D. Degree course prior to July 11, 2009 cannot be subjected to hostile and invidious discrimination for claiming exemption in terms of Regulation, 2009 and for other consequential reliefs. The said writ petition was ultimately dismissed on contest by the Learned Single Judge of this Court on 26th February, 2013 which is the subject matter of challenge in this mandamus appeal at the instance of the appellants/writ petitioners.
Before entering into the merit of this appeal, we feel it necessary to record herein the short background of the claim of the writ petitioners leading to the filing of the said writ petition.
The writ petitioner no. 1 got himself enrolled in Ph.D. course in Mathematics under University of North Bengal on 9th January, 2007. He was registered in the said course with the said University on 10th May, 2007. He submitted his thesis with the University on 10th May, 2009. Ultimately, Ph.D. Degree was conferred upon him by the said University on 8th April, 2010. Similarly, the writ petitioner no. 2 enrolled himself for the Ph.D. course in Mathematics with the University of North Bengal on 17th December, 2004. He got himself registered with the said University in the said course on 19th December, 2005. He submitted his thesis in December, 2007. Ultimately, Ph. D. Degree was conferred upon him on 5th May, 2009.
At the relevant time when they were enrolled in the Ph.D. course, University Grant Commission (Minimum 3 Qualifications Required For the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) (Second Amendment) Regulations, 2006 was in force. Portion of the said regulation which is relevant for our present purpose is set out hereunder:
"NET shall remain the compulsory requirement for appointment as Lecturer even for those with Post Graduate Degree. However the candidates having post graduate 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."
If the said regulation is applied to the petitioners then certainly the petitioners can legitimately claim exemption from NET for teaching students of PG level and UG level.
Admittedly, when they were prosecuting their Ph. D. Course, the condition for grant of such exemption which was provided in the Regulation of 2000, and the amendment of 2006 which replaced the earlier provision for grant of exemption provided in the regulation of 2000, were superseded by the subsequent amendment of 2009 which provided that 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 were 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/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges /Institutions.
Undisputedly, at the time when the advertisement was published on 27th December, 2012; inviting applications from the eligible candidates for appointment as Assistant Professors in different subjects in different colleges affiliated to various Universities in the state of West Bengal, regulation of 2000 including the subsequent amendments thereof made 4 either in 2006 or in 2009 were superseded by a new regulation which was called University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for Maintenance of Standard in Higher Education) Regulation of 2010. The portion of the said regulation which is relevant for our present purpose is set out hereunder.
Assistant Professor:
1. Good academic record with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Mater's Degree level, in the relevant subject or an equivalent degree from an Indian/Foreign University.
(ii) Besides fulfilling the above qualifications, candidates must have cleared the National Eligibility Test (NET) for lecturers conducted by the UGC, CSIR or similar test accredited by the UGC. Notwithstanding anything contained in sub-clause (i) and (ii) to the clause 4.4.2., 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 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.
Thus, the condition for grant of such exemption which was recognised under the original Regulation of 2000 which was amended subsequently in 2006 and in 2009 was changed by the said Regulation of 2010. Since the Regulation of 2010 was in operation on the date of advertisement with prospective effect, grant of exemption to the suitable candidates will be guided by the provision contained in the said Regulation of 2010. In our view, grant of exemption cannot be considered in the light of the superseded Regulations as the Regulation of 2010 has its prospective operation and no special provision was made therein for grant of exemption to these candidates who were enrolled or had been prosecuting Ph.D. course, or had obtained Ph.D. degree prior to enforcement of the said 5 Regulation of 2010. Incidentally it may be mentioned herein that the provision for grant of such exemption to Ph.D. candidates as provided in the Regulation of 2009 remained unchanged in the subsequent regulation of 2010.
Having regard to the fact that the date of advertisement is the material date for the present purpose, we hold that the Regulation of 2010 which was in operation on the date of such advertisement, will be the guiding factor for grant of exception to the candidate who applied in pursuance of the said advertisement. We thus hold that no one else excepting the candidate who can satisfy the conditions as laid down in the Regulation, 2010; can claim exemption for following reasons:-
Admittedly, the procedure for admission in Ph.D. course which was prescribed under the UGC (Minimum Standard of Procedure for Award of M.Phil/ Ph.D Degree) Regulation of 2009 came into force from 11th July, 2009; i.e. subsequent to the petitioners' enrolment in the said Ph.D. course under the said University. As such, the petitioners cannot be held to have acquired the said Ph.D. Degree by following admission procedure as laid down in Regulation 9 of the said University Grants Commission (Minimum Standard and Procedure for Award of M.Phil/Ph.D. Degree) Regulation, 2009. Of course, the petitioners also do not claim that Ph.D. Degree was conferred upon them in conformity with the provision of the University Grants Commission (Minimum Standard and Procedure for Award of M.Phil/Ph.D. Degree) Regulation, 2009.
The said regulation was framed for maintenance of uniform standard in higher education in the colleges affiliated to the Universities through out the country. As such, we are of the view that if any departure is made therefrom for giving relaxation to any candidate who is not otherwise entitled to get such exemption as per the said Regulation of 2009; uniformity in the standard of teaching in higher education throughout the country, cannot be maintained as prior to 2009 different standard was maintained in different Universities in the Ph.D. Course.6
Regulation of 2009 was framed to rule out the disparity in the standard of study in the Ph. D. course, so that uniformity in the selection process for selecting suitable candidates having Ph. D. Degrees from different universities for the post of Assistant Professors or equivalent positions in universityies/colleges/institutions can be maintained.
Mr. Bhattacharya, Learned Advocate, appearing for the petitioner relied upon the following unreported decision of different High Courts to support his contention that the concerned authority ought not to have discriminated them from the other Ph.D. holders who acquired such degree as per the said Regulation of 2009.
i) In the case of Dr. Gaurav Kumar Singh & Ors.
-vs- Vice Chancellor, B.H.U. & Ors., in Writ A No. 49208 of 2010; passed by the Division Bench of Allahabad High Court.
ii) In the case of Dr. Lalrokima Chenkual & Ors.
-vs- Mizoram University & Ors., in W.P. No. (C) 101 of 2011; passed by a Learned Single Judge of Gauhati High Court, Aizawl Bench.
We have considered both the aforesaid judgments of the Hon'ble High Court of Allahabad and the Hon'ble High Court of Gauhati.
The issues which were raised in these cases are identical with the present issue raised before us. In these cases, the issue which is presently under our consideration is as to whether the persons who have completed Ph. D. course prior to the enforcement of UGC (Minimum Standards and Procedure for Awarding M. Phil/Ph. D. Degree) Regulation, 2009 dated 1.6.2009 notified on 11.07.2009, can be considered for grant of such exemption by applying the said Regulation of 2006 or not?
In the Allahabad Judgment it was held by Their Lordships that the persons who were registered or have 7 completed the Ph.D. course prior to 11th July, 2009 cannot be subjected to hostile and invidious discrimination. It was further held therein that their Ph.D. Degree 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 UGC Regulation, 2009 as the said Regulation was given effect prospectively from the date of notification i.e., 11th July, 2009.
We feel that for taking the ultimate decision in this regard, we are required to consider the reason which prompted the authority to frame U.G.C. (Minimum Standards and Procedure for Awarding M. Phil. / Ph. D. Degree) Regulation, 2009 and the U.G.C. (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities And Colleges And Measures for The Maintenance of Standard in Higher Education) Regulation of 2010. The object for framing these regulations are summarized hereunder.
It is pertinent to mention that UGC made the NET examination compulsory for appointment to the post of teachers and lecturers in the universities for the first time by way of Regulations in 1991. The 1991 Regulations were based on the recommendations of Expert committees appointed by the Union of India from time to time for evaluation, upgradation and maintenance of the standard of higher education in the country.
The Union of India constituted a Review Committee on NET under the Chairmanship of Prof. Bhalchandra Mungekar, Member Planning Commission (Education). The said Committee in its final report recommended as under:-
" Based on the intensive and extensive deliberations throughout the country and near unanimity among 8 academics, scientists, administrators, Vice Chancellors and potential candidates, most of whom would be teachers and particularly in view of the floodgates being opened for the registration of M.Phil and Ph.D. degrees resulting only into a further deterioration of the quality of these degrees, and consequently making easy entry of the teaching profession of such degree holders, the Committee recommends that NET should be retained as a compulsory requirement for appointment of lecturer for both undergraduate and postgraduate level, irrespective of candidate possessing M. Phil. Or Ph.D. degree"
In view of the recommendations of the final report of Mungekar committee, the Union of India gave policy directions vide letter dated 12th November, 2008 to UGC to issue regulations to make NET compulsory for appointment of teachers/lecturers in universities. The relevant portion of the said directions are reproduced hereinuder:-
"Now, therefore, in exercise of the powers, conferred by sub-section (1) of Section 20 of the University Grants Commission Act, 1956, the Central Government hereby directs that:
(1) The UGC shall, for serving the national purpose of maintaining standards of higher education, frame appropriate regulations within a period of thirty days from the date of issue of this Order prescribing that qualifying in NET/SLET shall generally be compulsory for all persons appointed to teaching positions of Lecturer/Assistant Professor in higher education, and only persons who possessed degree of Ph.D after having been enrolled/admitted to a programme notified by the Commission, after it has satisfied itself on the basis of expert opinion, as to be or have always been in 9 conformity with the procedure of standardization of Ph.D. prescribed by it, and also that the degree of Ph.D. was awarded by a University or Institution deemed to be University notified by the UGC as having already complied with the procedure prescribed under the regulations framed by the commission for the purpose.
(2) The UGC shall notify the date or dates from which exemption from qualifying in NET/SLET in respect of Universities/Institutions deemed to be Universities as well as the discipline for which such exemption is being granted only on the recommendations of a committee of Experts to be constituted by the Commission and that the experts shall be persons of high eminence in the respective disciplines for which the persons possessing Ph.D. are considered for exemption from qualifying NET/SLET.
(3) The UGC shall not give any blanket or general exemption from NET/SLET to any University/Institution deemed to be University unless the degree of Ph.D. awarded by it in all disciplines or programmes meet the same level of rigour in terms of standards and quality as laid down by the Commission for each discipline under the regulations for the purpose, and that exemption from NET/SLET in respect of Ph.D. awarded by any University/Institution deemed to be University or to one or more of its programmes/ disciplines in respect of such Ph.D. shall be further subject to the University/Institution continuing to comply with the regulations of the UGC and shall be open to review or reconsideration by the Commission; and, such exemption shall be withdrawn in any or all disciplines or in respect of an award of Ph.D. to any person or persons, where the Commission has, on the basis of any inquiry conducted by it suo motu, reasons to believe that there has been deviation 10 from or violation of the procedure prescribed by Commission."
In pursuance of the aforesaid policy direction given by the Union of India, the UGC in exercise of its powers conferred by clause(e) and (g) of sub-Section 1 of Section 26 read with Section 14 of the Act, made the Regulation of 2009 whereby qualifications were prescribed for teaching posts in the Universities and in any of the institutions affiliated to it.
Since the quality of teaching in higher education is a matter of great concern and in order to position India as a powerhouse in the knowledge economy, the standards of education in Universities and other Institutions of higher learning cannot be compromised with any sentimental issue.
If the objects for which these regulations of 2009 were framed are considered therein we have no hesitation to hold that those regulations were framed to maintain equal standard in higher education throughout the country. The Regulation for awarding Ph. D. Degree had to be framed in 2009 as the concerned authority after taking note of the expert body's opinion, found that Ph. D. Degree awarded by most of the universities were not upto the mark. As such, regulation had to be framed by working out a comprehensive scheme prescribing the procedure right from the admission stage upto the awarding of Ph. D. Degree for maintaining uniform standard in awarding Ph.D. degree to the successful candidates. We are definite that if the Ph. D. Degree which was awarded to the candidates prior to 11.7.2009, are to be recognised for grant of exemption, then certainly the object for which those Regulation of 2009 and the Regulation of 2010, were framed will not be fulfilled.
After all, we cannot be oblivious of the fact that even if exemption is not granted to the candidates acquiring Ph. D. Degree prior to 11th July, 2009, they will not be excluded from 11 the zone of considerations for the post of Assistant Professor or Identical post in Universities/Colleges/Institutions as they can participate in the selection process after coming out successfully in the eligibility test.
Thus we hold that the Regulation framed for awarding Ph. D. Degree in 2009 has prospective operation with effect from 11th July, 2009, and the benefit of exemption cannot be granted to those candidates who achieved Ph. D. Degree before 11th July, 2009 but applied for such exemption after the cut off date i.e., 11th July, 2009 when the said Regulation of 2009 came into effect. For similar reasons, such exemption cannot be granted to the petitioner under the Regulation of 2010.
It is well settled that the employer has exclusive domain over the eligibility criteria to be fixed for the aspiring candidates for recruitment in any particular post. The aspiring candidates have no say on the decision of the employer regarding laying down the eligibility criteria for the aspiring candidates. As such, when the concerned authority fixed the eligibility criteria by framing its regulation for maintenance of uniform standard of teaching in higher educational institutions through out the country and further when the said regulation is applied uniformly through out the country for selecting the eligible candidates for the concerned posts, the petitioners who cannot satisfy the said eligibility criteria for getting such exemption, cannot complain of the discriminatory treatment given to them.
We thus most respectfully disagree with the views expressed by the Hon'ble Allahabad High Court and the Hon'ble Gauhati High Court for the reason as recorded above. We have also indicated above that when the concerned authority in exercise of its exclusive jurisdiction and/or authority laid down the eligibility criteria for the aspiring candidates who want to participate in the selection process, it is only those candidates who can satisfy the 12 eligibility criteria, can only be allowed to participate in the selection process on and from 11th July, 2009.
Since the petitioners admittedly have not fulfilled the conditions as laid down in the Regulation of 2009 in acquiring their Ph.D. Degree, they cannot claim any exemption under the Regulation of 2010.
As such, we do not find any justification to interfere with the impugned order passed by the Learned Single Judge of this Court.
The appeal, thus, stands dismissed. The judgment and order passed by the Learned Single Judge in the writ petition stands affirmed.
Since the common question of law and facts are involved in other two appeals, namely, MAT 882 of 2013 and MAT 883 of 2013; the fate of those two appeals will be governed by the judgment passed by us in the earlier appeal being FMA 1585 of 2013.
Urgent photostat certified copy of this order, if applied for be given to the applicant as early as possible.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.)