Leena B. Dam Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - 7 is contended to be not eligible for being selected, recommended and/or appointed in the post of lecturer. in case such candidates fail to obtain ph. 9. the reasons for prescription of a common eligibility test as a precondition for appointment of lecturers ;the validity thereof as well as the reasons for the exemption granted to certain categories of candidates, i. mehrotra committee had recommended that a comprehensive national test with reference to a common yardstick should be introduced as a condition of eligibility for lecturers. the aforesaid recommendations, after a wide debate, were eventually accepted by the university grants commissions and thereafter a separate set of regulations were framed by the university grants commissions in the year 1991 and were notified on..... ranjan gogoi, j.1. both the writ petitions having raised common questions of law on more or less similar facts were heard together and are being disposed of by this common judgment and order.2. an advertisement was published in the newspaper on 14.2.2004 inviting applications for as many as seven posts of lecturers in different subjects in the gauhati commerce college (in short 'the college'). the selection held pursuant to the aforesaid advertisement, in so far as the posts of lecturer in accountancy is concerned, has been assailed in w.p.(c) no. 5912/2004 whereas the selection held in respect of the post of lecturer in g commerce has been assailed in w.p.(c) no. 6898/2004. while the specific details of the challenge made will be noticed a little later what has to be recorded at this.....

Judgment:

Ranjan Gogoi, J.

1. Both the writ petitions having raised common questions of law on more or less similar facts were heard together and are being disposed of by this common Judgment and Order.

2. An advertisement was published in the newspaper on 14.2.2004 inviting applications for as many as seven posts of Lecturers in different subjects in the Gauhati Commerce College (in short 'the College'). The selection held pursuant to the aforesaid advertisement, in so far as the posts of Lecturer in Accountancy is concerned, has been assailed in W.P.(C) No. 5912/2004 whereas the selection held in respect of the post of Lecturer in g Commerce has been assailed in W.P.(C) No. 6898/2004. While the specific details of the challenge made will be noticed a little later what has to be recorded at this stage of recital of facts is that the petitioner in both the cases claim to have submitted their applications pursuant to the advertisement issued and to have participated in the separate selections held for the two posts in question. In the selection held on 13.8.2004 for the post of Lecturer in Accountancy the respondent No. 7 in W.R(C) No. 5912/2004, Dr. Pranjit Kumar Nath, was selected and placed at Serial No. 1 whereas the petitioner was placed at serial No. 2 of the select list. Similarly, in the selection held on 11.8.2004 for the post of Lecturer in Commerce, which is assailed in W.P.(C) No. 6898/2004, Dr. Pranjit Kumar Nath was placed at serial No. 1 of the select list whereas one Smt. Angana Bora, respondent No. 9, was placed at serial No. 2 and the petitioner Dr. a Monalisha Choudhury was placed at serial No. 3 of the select list. In the aforesaid writ petition, Le., WP.(C) No. 6898/2004 the person who had been placed at serial No. 1 of the select list, viz. Dr. Pranjit Kumar Nath is not impleaded as a party respondent on the basis of the contention advanced that the said person had opted for appointment in the post of Lecturer in , Accountancy. It must also be noticed at the stage that the recommendations of the selection committee having been approved by the Governing Body of the College, the matter was required to be sent to the Director of Higher Education for accord of prior approval. It is at this stage that both the writ petitions were filed calling into question the selections made.

3.I have heard Sri S. S. Dey and Sri M. Nath, learned Counsels appearing for the writ petitioner in W.P.(C) No. 5912/2004, Sri G. K. Bhattacharyya, learned senior counsel appearing for the Governing Body of the College and Sri A. C. Borbora, learned Counsel appearing for the respondent No. 7.1 have also heard Sri B. B. Narzari, learned senior counsel for the writ j petitioner in W.P.(C) No. 6898/2004 and Sri B. Chakraborty, learned Counsel for the Governing Body of the College in the aforesaid case. Sri K. N. Choudhury, learned Additional Advocate General, Assam and Sri A. K. Goswami, learned Standing Counsel, Education were heard in both the cases on behalf of the official respondents.

4. Having broadly noticed the common features of the two cases, this Court may now proceed to put on record the submissions advanced on behalf of the contesting parties in the two cases under consideration separately:

WJP.(C)No. 5912of2004:

5. Three contentions have been advanced on behalf of the writ petitioner in the above case. Firstly, it has been contended that clearance of the National Eligibility Test (NET) or State Level Eligibility Test (SLET) are mandatory conditions of eligibility for appointment of a Lecturer in a Government aided College and the respondent No. 7, Dr. Pranjit Kumar Nath, who has been placed at serial No. 1 of the merit list, admittedly, has not cleared either of the aforesaid tests. On the aforesaid basis, the respondent No. 7 is contended to be not eligible for being selected, recommended and/or appointed in the post of Lecturer. In this regard reliance has been placed on a Government Notification dated h 26th February, 2003, which has been enclosed as Annexure-6 to the writ petition, to contend that clearance of either of the two eligibility tests has been prescribed as a mandatory condition of eligibility for selection and appointment as a Lecturer, by the State Government.

Next it has been contended, by relying on the averments made in the writ petition, that in the selection held on 13.8.2004 the respondent a No. 6, one G. C. Nath, who is the in-charge Principal of the College had participated in the selection process and had interviewed the candidates. The respondent No. 7 is closely related to the respondent No. 6 ; the exact relationship has been mentioned in the writ petition filed. The participation of the respondent No. 6 in the selection process and the result of the selection on the basis of such participation is contended to be vitiated by the doctrine of bias.

Lastly, it has been argued on behalf of the petitioner that the respondent No. 7 who had acquired the Ph.D. degree in the year 2000 has been made eligible for selection and appointment, even though he had not cleared the eligibility test, on the basis of an exemption granted by the University Grants Commission in this regard. The aforesaid fact having come to the knowledge of the petitioner, from the affidavit filed on behalf of the Governing Body, it has been contended in the rejoinder affidavit filed by the petitioner that even assuming while denying that the respondent No. 7 could be so exempted, award of 10 marks to the respondent No. 7 in the selection on the basis of the Ph.D. degree acquired by him is not sustainable. According to the petitioner, in the first place, the respondent No. 7 does not come within the category of persons exempted from the requirement of clearing the eligibility test. Alternatively, if the respondent No. 7 is an exempted person, such exemption having been granted on the basis of the Ph.D. degree acquired by the said respondent, the said degree must be considered equivalent to NET/SLET and, therefore, if the respondent No. 7 had been granted 10 marks for the Ph.D. degree, similar 10 marks should have granted to the petitioner for clearing the eligibility test.

6. The argument offered by Sri G. K Bhattacharyya and Sri A. C. Borbora, learned senior counsels appearing for the respective respondents, insofar as the issue relating to exemption from clearing NET/SLET by the respondent No. 7 is concerned, contains a common g projection. Placing the history behind the prescription of the requirement of clearance of the eligibility test, i.e., NET/SLET and the exemption granted from the aforesaid requirement, from time to time, which facts have been noticed in a judgment of the Apex Court in the case of University Grants Commission v. Sadhana Chaudhary and Ors. reported in : (1997)IILLJ272SC , learned Counsels have placed before the Court a Notification dated 31.7.2002 issued by the University Grant Commission promulgating the University Grants Commission (Minimum Qualifications required for the appointment and Career Advancement of teachers in universities and institutions affiliated to it) (1st Amendment) Regulations, 2002. The aforesaid notification is enclosed as Annexure-F to the affidavit filed on behalf of the respondent No. 3, i.e., the President of the Governing Body of the College. The following a provisions as contained in the aforesaid Regulations, which is extracted below, have been placed before the Court:

NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidates who have completed M. Phil degree by 31st December, 1993 or have submitted Ph.D. thesis to the university in the concerned subject on or before 31st December, 2002 are exempted from appearing in the NET examination. In case such candidates fail to obtain Ph.D. degree, they shall have to pass the NET examination.

The provisions extracted above were introduced by the Regulations framed in the year 2002 and were in substitution of the provisions contained in the Regulations framed in the year 2000 which provisions may also be conveniently extracted herein below :

NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidates who have completed M. Phil degree or have submitted Ph.D thesis in the concerned subject upto 31st December, 1993 are exempted from appearing in the NET examination.

On the above basis, learned Counsels for the respondents have argued that when the University Grants Commission Regulations had exempted persons who had submitted their Ph.D. thesis on or before 31.12.2002 from appearing in the NET examination, a person who had acquired the Ph.D. degree before the said date, i.e., 31.12.2002 must necessarily be understood to be also exempted. The respondent No. 7 having acquired the Ph.D. degree in the year 2002 must, therefore, be reasonably understood by the Court to be a person exempted from clearing the NET.

7. Insofar as the plea of bias advanced by the writ petitioner is concerned, the arguments advanced by the learned Counsel for the respondent Governing Body and the private respondent No. 7 has again been a common one. By referring to the marks awarded at the interview to the writ petitioner and the respondent No. 7 which are roughly equal, the contention, advanced is that the plea of bias 'advanced by the writ petitioner stands logically demolished. In this regard Sri Bhattahcharyya, learned Counsel for the Governing Body has, however, very fairly submitted that if the Court is otherwise inclined to take the view that a re-selection should be held without the participation of the h respondent No. 6, i.e., the Principal, the Governing Body of the College would readily agree to such a re-selection in order to dispel all clouds over the fairness of the present process of selection.

In so far as the award of marks for Ph.D. degree holders who had not cleared the NET and to non-Ph.D. degree holders who had cleared the said eligibility test is concerned, the submission advanced, again, has been a common one. It is argued that Ph.D is a degree which is awarded after years of laborious research. It is a recognition granted for original thinking and, therefore, merely because Ph.D degree holders have been exempted from clearing the NET, the said eligibility test ought not to be considered to be at par with the Ph.D degree, NET/SLET are mere eligibility tests which have been considered by the U.G.C. to be dispensable requirements in case of Ph.D. degree holders. It is further argued that marks have been awarded to the respondent No. 7 for acquiring the Ph.D degree in terms of a prescribed scale for award of marks which, incidentally has also not been put to any specific challenge by the writ petitioner. On the aforesaid broad basis learned Counsels for the respondents have prayed for dismissal of the writ petition.

8. Sri K. N. Choudhury, learned Additional Advocate General of the State had participated at the hearing at the request of the Court. After prescription of the requirement of clearance of NET by the University Grants Commission, exemption from the said requirement in so far as the Ph.D. degree holders, with whose cases this Court is concerned, was granted initially up to 31.12.1993. Thereafter, the period of exemption was extended up to 31.12.2002 by virtue of the provisions of the University Grants Commission Regulations, 2002, as already noted and extracted hereinabove. The rationale for exemption up to 31.12.1993 having been dealt with by the Apex Court in the case of University Grants Commission v. Sadhana Chaudhary (supra), this Court desired to know the basis on which the exemption granted was extended up to 31.12.2002. This was done to enable the Court to have a comprehensive picture of the situation and certainly not to sit in judgment over the decision of the University Grants Commission. Accordingly, this Court had requested Sri K. N. Choudhury, learned Additional Advocate General, Assam to obtain the requisite information from the State Government and place the same before the Court. Sri Choudhury, learned Additional(Advocate General, has very promptly obtained the requisite information from the University Grant, Commission which is in the form of a written Note which has been placed before the Court.

9. The reasons for prescription of a common eligibility test as a precondition for appointment of Lecturers ; the validity thereof as well as the reasons for the exemption granted to certain categories of candidates, i.e., those with M. Phil or Ph.D degrees has been elaborately considered by the Apex Court in the case of University Grants Commission Sadhana Chaudhary (supra). It will, therefore, not be necessary for this Court to recapitulate the facts and circumstances surrounding the aforesaid events. However, to make the discussion complete, the broad facts with regard to the aforesaid aspects of the matter may be briefly considered. The convenient starting point for the above discussion may be taken to be the date of commencement of the 'University Grants Commission (Qualifications required of a person to be appointed to the teaching staff of a university and institutions affiliated to it) Regulations, 1982', i.e., 13.6.1983. The aforesaid Regulations of 1982, inter alia, prescribed the necessity of a Ph.D degree for appointment to the post of University Lecturer and M. Phil degree for appointment to the post of College Lecturer. The academic standards and the method of evaluation of different Universities in the country, naturally, not being uniform, several expert committees including the Prof. R. C. Mehrotra Committee had recommended that a comprehensive national test with reference to a common yardstick should be introduced as a condition of eligibility for Lecturers. The aforesaid recommendations, after a wide debate, were eventually accepted by the University Grants Commissions and thereafter a separate set of Regulations were framed by the University Grants Commissions in the year 1991 and were notified on 19.9.1991. The minimum qualifications prescribed by the said Regulations for the post of Lecturer in a College was :

Good academic record with at least 55% marks or an equivalent grade at Master's degree level in the relevant subject from an Indian University or an equivalent degree from a foreign University.

Candidates besides fulfilling the above qualifications should have cleared the eligibility test for lecturers conducted by University Grants Commission, CSIR or similar test accredited by the University Grants Commission.

The requirement of Ph.D or M. Phil for appointment as University and College Lecturers, as may be, therefore, was dispensed with and the requirement of clearing an eligibility test to be conducted by the University Grants Commission or CSIR was introduced. The changes brought about by the 1991 Regulations having affected the aspirations of many candidates who were pursuing the Ph.D. or M. Phil course, the University Grants Commission by Notification dated 10.2.1993 granted exemption from appearing in the eligibility test, inter alia, to candidates who were awarded M. Phil degree up to 31.3.1991 and candidates who would be submitting their Ph.D. thesis up to 31.12.1993. By a subsequent Notification dated 21.6.1995 the period of exemption for both categories of candidates were made uniform by extending the exemption in respect of M. Phil degree holders up to 31.12.1993 also. The validity of the aforesaid exemption was considered and upheld by the Apex Court in the case of University Grants Commission v. Sadhana Choudhary (supra) by holding that the exemption from clearing the eligibility test had a reasonable basis in view of the time taken in submitting a Ph.D. thesis or obtaining an M. Phil degree by candidates who had undertaken either field of study prior to the date of issuance of the 1991 Regulations. While the matter was resting at that, the experience gained having indicated that even in case of Ph.D degrees, the standard had varied from one University to another and therefore, it was felt that even for Ph.D. degree holders there was a need for holding a common eligibility test with a uniform syllabus. Accordingly, the University Grants Commission in exercise of powers under Section 26(1)(e), (g) read with Section 14 of the University Grants Commission Act, 1956 framed a new Regulation namely, University Grants Commission (Minimum Qualifications required for the appointment and Career Advancement of teachers in universities and institutions affiliated to it) Regulations, 2000 in supersession of the 1991 Regulations. Under the said Regulations of the year 2000, candidates were required to clear the NET and no exemption was contemplated either for Ph.D or M.Phil degree holders after 31.12.1993. After the framing of the aforesaid Regulations in the year 2000, various representations were received by the University Grants Commission and a large number of cases were also filed in different Courts with regard to the question of extension of the exemption of Ph.D. degree holders from clearing the NET. The matter was deliberated upon and by an amendment made in the year 2002, the Regulations of the 2000 were amended and for Ph.D. degree holders only, exemption was granted to those, who had submitted their thesis on or before 31.3.2002. The aforesaid retrospective action of the University Grants Commission by the amendment of the Regulations of the year 2000, therefore, continued the exemption from clearing the NET in so far as Ph.D degree holders are concerned up to 31.12.2002. Though the language of the amendment mentions the exempted category of candidates to be those, who had submitted their thesis on or before 31.12.2002, the natural consequence of the same would be also to cover all such candidates who may have obtained their Ph.D. degree on or before the said date apart from such other candidates who may have been admitted to the Ph.D. degree after 31.12.2002 on the basis of the their thesis submitted on or before the said date.

10. The elaborate discussions that have preceded make it abundantly clear that Ph.D. degree holders have been exempted from the requirement of clearing the NET by the University Grants Commission on a detailed consideration of the different aspects of the question on the basis of the needs of the situation, the demands and representations received by the U.G.C. from different quarters for such exemption as well as such demands and claims as may have been raised before the Courts. Exemption had earlier been granted up to 31.12.1993 and such grant of exemption has received the approval of the Apex Court in the case of University Grants Commission v. Sadhana Chaudhary (supra). a The same has now been extended up to 31.12.2002. The Note of the University Grants Commission containing the reasons why exemption had to be extended up to 31.12.2002, as placed before the Court at the hearing by the learned Additional Advocate General, clearly indicates that the exemption granted was considered necessary by the University Grants Commission in the light of the various representations received in this regard. There could have been a category of persons who had undertaken research work and enrolled for the Ph.D. degree within the time-frame fixed by the earlier exemption notification but had not completed their research work and therefore had not been awarded the Ph.D. degree before the earlier stipulated period of exemption, i.e., c 31.12.1993. Research work in certain cases may take a long time and it is not unknown that completion of such work leading to a Ph.D. degree, at times, can even take a decade. The Note placed before the Court by the learned Additional Advocate General indicates that all such matters were deliberated upon by the University Grants Commission and d thereafter it was decided that the exemption from clearing the NET should be extended to all those candidates who may have submitted their thesis on or before 31.12.2002. The University Grants Commission is a statutory body entrusted, inter alia, with the task of ensuring the highest standards of academics in higher educational institutions. If e the University Grants Commission had taken a decision that exemption should be extended up to 31.12.2002 on a consideration of the matters that have already been noticed, it is difficult to see why the Court should not be satisfied with the exemption granted. As already indicated, the validity of the basis or rationale behind the exemption granted has f not been challenged by the writ petitioner in the present case and the elaborate exercise that has been undertaken is only for the purpose of satisfying the moral conscience of the Court as distinguished from a course of judicial scrutiny of the decision of the University Grants Commission.

11. The net result of the above discussion is that the Court must hold that the respondent No. 7 having acquired his Ph.D. degree in the year 2000 is exempted from clearing the eligibility test, i.e., NET/SLET and the contentions raised on behalf of the writ petitioner to the contrary are not sustainable in law.

12. Having answered the first issue raised in the manner indicated above, the Court may now proceed to answer the other issues. Ph.D. is a degree awarded in recognition of original research work in any particular field. It is a recognition of the scholarly achievements of a person and the contributions to an original/innovative line of thinking a that may have been made by such a person. A person is admitted to the said degree on acceptance of a thesis by scholars who are renowned in the field. The process leading to the acquisition of the Ph.D. degree, indeed, is a laborious, painstaking and onerous one. It is, perhaps, on account of the aforesaid fact that the University Grants Commission, while granting exemption to Ph.D degree holders from clearing the NET, had taken the view that in so far Ph.D degree holders are concerned the aforesaid requirement can be safely dispensed with. NET/SLET, on the other hand, though undoubtedly, is a test of the highest order, is nevertheless an eligibility test that an ordinary postgraduate in a particular subject may take and clear. A Ph.D. degree, therefore, cannot be equated with the NET/SLET the though, i.e., grant of exemption from clearing the NET/SLET to Ph.D. degree holders, may, at first blush, indicate some semblance of deemed/conferred equality, yet, such a view, on a closer analysis must fade away. On the contrary, it would be more reasonable to hold that exemption has been granted to Ph.D. degree d holders not on a deemed/assumed equality of the said degree with the NET/SLET, but such exemption has been granted because Ph.D is a degree, acquisition of which, permits dispensation of the requirement of clearance of NET, Viewed from the aforesaid perspective the argument advanced on behalf of the petitioner that the writ petitioner and the respondent No. 7 stand on an equal footing and, therefore, if the respondent No. 7 had been granted 10 marks for his Ph.D. degree, similar 10 marks should also be granted to the writ petitioner for clearing the NET, does not appear to be justified. The award of marks for academic performance and attainments is as per the scale prescribed and the notification prescribing the said scale also not being under challenge, this Court is of the considered view that it will be correct to hold that Ph.D. degree holders who had not cleared the NET would still be entitled to the award of 10 marks for the Ph.D. degree acquired by them.

13. This would bring the Court to the last issue in the case, i.e., whether 9 the participation of the respondent No. 6, who is the in-charge Principal of the College, in the selection proceeding had vitiated the same on account of the relationship between the respondent No. 6 and the respondent No. 7.

That the aforesaid two respondents are related to each other is not in doubt. Not only the respondent No. 6 has not denied the same, the stand taken by the respondent No. 7 is that though he is related to the respondent No. 6, yet the participation of the respondent No. 6 does not vitiate the proceeding inasmuch as no questions were put to him by the said respondent No. 6 in the interview held. The stand taken by the respondent No. 3, i.e., the Governing Body of the College in the affidavit filed is that notwithstanding the participation of the respondent No. 6 in the selection proceeding, the selection was held in a just and fair manner.

14. The question that confronts the Court in the above facts is whether the participation of the respondent No. 6 in the selection proceeding vitiates the entire of the proceeding on the ground of bias. The doctrine of bias is a unique judicial innovation consistent with the principle that the justice delivery system must be rooted in the confidence of the people and justice must not only be done but also appear to have been done. Proof of actual bias is difficult to come by. Hence the Court have consistently held that even the possibility of bias would suffice to nullify an order passed or an action taken. In the present case, the possibility of bias on the part of the respondent No. 6 as against the other candidates in the fray and leaning in favour of the respondent No. 7, loans large. In such a situation, the proper course of action for the Court would undoubtedly be to invalidate the proceedings of the selection held on 13.8.2004 for the post of Lecturer in Accountancy and require the Governing Body of the College to re-do the selection once again by following all principles of law as may be applicable in this regard as well as the directions and observations contained in the present order.

15. In view of the foregoing discussions, I set aside the proceedings of selection held on 13.8.2004 for the post of Lecturer in Accountancy in Gauhati Commerce College and direct for the holding of a fresh selection for the said post in the light of the directions contained in the present order. Consequently, writ petition No. 5912of 2004 shall stand partly allowed to the extent indicated above.

W.P.(C)No. 6898of2004

16. The selection for the post of Lecturer in Commerce held on 11.8.2004 is the subject-matter of challenge in this writ petition. In the selection held, the respondent No. 7 in the earlier writ petition, i.e., W.P.(C) No. 5912/2004 was again placed at serial No. 1 of the merit list. However, the said person has not been impleaded as a party in the present proceeding, perhaps, on account of the statement made in the writ petition that the said person has opted to accept the post of Lecturer in Accountancy. One Smt. Angana Bora, who has been impleaded as respondent No. 9 in the present case, was placed at serial No. 2 and the writ petitioner, Mr. Monalisha Choudhury, was placed at serial No. 3 of the select list.

17. According to the petitioner, as the person placed at serial No. 1 of the merit list had opted for another post, the Governing Body had recommended the name of the respondent No, 9 herein, i.e., Smt. Angana Bora for the post in question. Aggrieved, the instant writ application, has been filed primarily on the ground that the advertisement having stipulated that preference will be given to candidates with LL.B. degree, the Governing Body of the College could not have recommended the name of the respondent No. 9 who did not have the LL.B. degree. The petitioner has further contended that as she is a law graduate having the LL.B. degree, the Governing Body ought to have recommended her name.

18. Having noted the main features of the writ petition under consideration including the grounds of challenge this Court must take notice of the fact that in the present selection the Principal of the College was again a member of the Selection Committee and had interviewed the candidates including the respondent No. 7, Dr. Pranjit Kumar Nath, who was placed at serial No. 1 of the select list. In W.P.(C) No. 5912/ 2004 the entire selection for the post of Lecturer in Accountancy has been held to be vitiated on account of the participation of the Principal of the College in the selection proceedings. For the same reason the selection for the post'of Lecturer in Commerce must also be held to be a nullity on the same ground and reasons which had led to the aforesaid conclusion in W.P.(C) No. 5912/2004.

19. In view of the aforesaid inevitable conclusion that has to be reached by the Court in the present case, it will not be necessary for this Court to consider the tenability of the claims made by the writ petitioner in the present case. Accordingly, I interfere with the selection held on 11.8.2004 for appointment to the post of Lecturer in Commerce in the Gauhati Commerce College and direct the Governing Body of the College to have the selection re-done by a duly constituted Selection Committee in accordance with the directions and observations as contained in W.P.(C) No. 5912/2004.

Consequently, this writ petition shall also stand partially allowed.