High Court
Case Details
WP(C) 1713/2009 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER Challenge in the writ petition is made questioning the legality and vali dity of the order issued by the Director of Higher Education (’DHE’ for short), Assam on 12.06.2008 whereby and whereunder the DHE returned the proposal for app roval of appointment of the petitioner as Lecturer in the Department of Sanskrit , holding that the petitioner does not possess the required norms as prescribed by the University Grants Commission (’UGC’ for short) i.e. 55% in the Master deg ree. 2. Heard Mr. DK Sarma, learned counsel appearing for the petitioner. Also h eard Ms. P Chakraborty, learned Standing Counsel, Education Department appearing for the respondent Nos.1 and 2, Mr. KK Phukan, learned counsel appearing for th e respondent Nos.3 and 4 and Mr. AK Chamuah, learned counsel appearing for the r espondent No.5.
Legal Reasoning
In order to adjudicate the case, the pleaded facts of the parties are su 3. mmarized as follows: - The petitioner obtained the Master Degree in Sanskrit securing 54.6% marks from Gauhati University in the year 1997 and consequent thereupon obtained Ph.D. degr ee in the year 2007 from the same university and is thus eligible and qualifie d for appointment to the post of Lecturer in Sanskrit of any provincialised/Gov ernment college of the state. 4. The Principal, Monohari Devi Kanoi Girls’ College (’MDKG College’ for sh ort), Dibrugarh issued an advertisement on 26.09.2007 inviting applications from the intending eligible candidates having latest UGC norms with NET/SLET/M.Phil/ Ph.D for filling up one post of Lecturer in Sanskrit on a fixed pay of Rs. 5,0 00/- as probationer for a period of two years. In pursuance of the said advertis ement, the petitioner along with others applied for the aforesaid post and on sc rutiny of the applications of the intending candidates, the college authority is sued call letters to the candidates requesting them to appear before the Intervi ew Board scheduled to be held on 20.11.2007. 5. In the said selection, 15 number of candidates appeared including the pe titioner and the Selection Committee took the interview of all the candidates. O n completion of interview, the Selection Committee submitted the proceedings of the interview for the post of Lecturer in Sanskrit held on 20.11.2007 before the Governing Body of the College for onward necessary action, placing the petition er at Serial No.1 in order of merit. The Governing Body on receipt of the minute s of the interview from the Selection Committee unanimously approved the proceed ings of the interview board in its meeting held on 24.12.2007 and resolved to ap point the petitioner as a Lecturer in Sanskrit in MDKG College being the first n ominee and further resolved to send the proposal to DHE, Assam, for his prior ap proval as required under the rules. 6. Consequent upon the aforesaid resolution, the Principal-cum-Secretary of the College vide his communication dated 05.02.2008 sent the proposal to DHE, A ssam for his prior approval for appointment of the petitioner to the post of San skrit as per recommendation of the Selection Committee. On receipt of the propos al for according prior approval for appointment to the post of Lecturer in Sans krit, the DHE Assam returned the proposal sent for according prior approval of the minutes of the meeting held on 24.12.2007 by the Governing Body of the Coll ege holding that the petitioner did not possess the norms of 55% at the Master Degree level as prescribed by UGC vide communication dated 12.06.2008 which is under challenge before the court praying for issuing a writ of Mandamus direct ing the DHE Assam to accord approval of the resolution dated 24.12.2007. On the pleadings of the parties the following arguments are advanced by 7. the contesting parties to substantiate their respective claims: - The petitioner is admittedly the first nominee for appointment to the post of Lecturer in Sanskrit having 54.6% marks in Master Degree would contend that as p er guidelines of the state as well as UGC, the marks 54.6% could be rounded off as 55% as per Notification No. EPG 559/87/223 dated 06.09.1989 issued by the Government of Assam as per the revised UGC norms for the college teachers which has not been superseded while issuing the subsequent notification dated 20.02.20 03 and hence the order dated 12.06.2008 under challenge in the writ petition iss ued by the DHE Assam requires judicial review under Article 226 of the Constitut ion of India. 8. The counsel for the petitioner would further contend that in the guidel ines issued by the UGC, nothing has been mentioned relating to (cid:28)no rounding off (cid:29) except Good academic records with at least 55% of marks in Master Degree and the marks obtained by him in Master Degree being 54.6% could be rounded off as 55% by relaxing the UGC norms in a given case by setting aside the impugned or der dated 12.06.2008 in the public interest when the Governing Body of the Colle ge took the resolution approving the minutes of the meeting of the Selection Co mmittee selecting the petitioner as first nominee in order of merit.
Decision
Controverting the argument advanced by the counsel of the petitioner, th 9. e counsel appearing for the UGC would contend that UGC has been constituted und er the provisions of the University Grants Commission Act, 1956. The Commission under the provisions of the Act has been entrusted with the duty to take such s teps as it may think fit for the promotion and co-ordination of University E ducation and for the determination and maintenance of standards of teaching, exa mination and research in Universities. The UGC in view of the recommendation of expert committees made a new regulation wherein the University Grants Commis sion (Qualification required of a Person to be appointed to the Teaching Staff of a University and Institutions affiliated to it) Regulations 1991 which was no tified on 19.09.1991. The regulation of 1991 deals with the qualification which specifically provides for appointment to the post of Lecturer must have a good a cademic record with at least 55% marks or an equivalent Grade at Master’s Degre e level in the relevant subject which would go to show that the petitioner is la cking of 55% marks which disentitled him to be eligible for selection to the post of Lecturer and hence, the writ petition is devoid of merit and the same is required to be dismissed in limine. 10. The counsel appearing for the UGC would further contend that the UGC has prescribed good academic record with at least 55% marks in the subject as an eligibility criteria for the post of Lecturer to be filled up by direct recrui tment which is within the ambit of the UGC and the petitioner having lacking of the eligibility criteria for appointment to the post of Lecturer in Sanskrit, his selection itself cannot stand under the law and the court cannot prescribe qualifications nor encroach upon the power of statutory authority so long as qu alifications prescribed by the authority has rational nexus with functions and duties to the post and hence no judicial review in the matter of eligibility criteria would lay in exercise of power under Article 226 of the Constitution of India. 11. Learned counsel appearing for the DHE, Assam would contend that the Noti fication dated 06.09.1989 would no longer remain valid because of the Notificat ion dated 20.02.2003 superseding the earlier notifications, making it clear that to be appointed as Lecturer of college one must have good academic records with at least 55% (no rounding off) of marks meaning thereby that the petitioner w as ineligible for selection to the post of Lecturer in Sanskrit since he has ob tained 54.6% marks in Master Degree and hence the proposal for prior approval t o the resolution taken by the Governing Body of the College recommending appoint ment of the petitioner has been turned down holding that he did not possess the required norms as prescribed by UGC and as such no interference is called for by the writ court where eligibility criteria for appointment as a Lecturer in Sanskrit is lacking. 12. Learned counsel appearing for the respondent Nos. 3 and 4 would contend that the intending candidates those who had applied for the post in pursuan ce of the advertisement dated 26.09.2007 were called for interview irrespective of norms scheduled to be held on 20.11.2007. However three (3) candidates a ppeared before the interview Board having no UGC norms i.e. 55% marks in Master Degree. As the College has been suffering from lack of Lecturer in Sanskrit, the selection committee considering an immediate need of a Lecturer in Sanskrit in the college deemed it to recommend the name of the writ petitioner as first nomi nee to be appointed as a Lecturer which was forwarded to the Governing Body for necessary action and the Governing Body approved the proceeding of the intervi ew Board held on 20.11.2007 and accordingly, resolved the resolution No. 2 date d 24.12.2007 and sent the proposal to DHE Assam for his prior approval for app ointment of the writ petitioner vide letter dated 05.02.2008. 13. Considered the arguments advanced by the contesting parties. Perused the pleading of the parties along with the annexures appended thereto. Admittedly t he writ petitioner though nominated as first nominee by the Selection Committee lacks the norms prescribed by the UGC. The petitioner obtained 54.6% marks in th e Master Degree examination and therefore, he was not eligible and qualified to apply for the post of Lecturer in Sanskrit though he was called for the intervie w but the college authority admits the candidates appeared before the interview Board lacks the norms prescribed by the UGC to have 55% marks in the Master Deg ree. Furthermore, the writ petitioner obtained 54.6% marks in the Master Degre e and bank upon the Notification dated 19.11.1989 whereby it could be rounded of f as 55% and therefore, his entitlement for appointment cannot be denied though the Notification dated 20.02.2003 relates to guideline which, however, has not superseded the Notification dated 19.11.1989. 14. Now, the question remained to be answered as to whether the marks obtain ed at 54.6% in the Master degree can be rounded off to 55% as per Notification d ated 19.11.1989. The UGC determines the standards in institutions for higher ed ucation or research and scientific and technical institutions is specified in E ntry 66 of List I of the VIIth Schedule and the UGC Act is traceable to Entry 6 6 to List 1 of VIIth Schedule of the Constitution of India whereof the maintenan ce of standard of Higher Education in the Universities falls within the compete nce of the central government traceable to the UGC Act 1956 and therefore, the regulations framed by the UGC regarding minimum qualification for appointment of Lecturer is binding on all the universities and colleges affiliated thereto. Un iversity Grants Commission (minimum qualifications required for the appointment and career Advancement of teachers in Universities and Institutions affiliated t o it) Regulations 2000 was amended superseding the UGC Regulation 19.9.1991 and the Notification dated 24.12.1998. The regulation 2000 provided: - (cid:28)No person shall be appointed to a teaching post in University or in any of inst itutions including constituent or affiliated colleges recognized under clause (f ) of section 2 of the University Grants Commission Act, 1956 or in an institutio n deemed to be a university under section 3 of the said Act in a subject if he/s he does not fulfill the requirements as to the qualification for the appropriate subjects as provided in the Annexure. (cid:29) 15. The following minimum qualification was prescribed in the Annexure to th e said UGC Regulation 2000 in relation to Humanities, Social Sciences, Sciences, Commerce, Education, Physical Education, Foreign Languages and Law: - (cid:28)Good academic record with at least 55% of the marks or an equivalent grade of B in the 7 point scale with latter grades O, A, B, C, D, E and F at the Master’s Degree level, in the relevant subject from an Indian University, or, an equival ent degree from a foreign University. (cid:29) In the subsequent notification dated 20.02.2003, issued by the State Government by superseding earlier notifications, norms prescribed for the post of Lecturer of College teachers as follows;- (cid:28)Norms for the post of lecturer/Librarian;- a) Good academic records with at least 55% (no rounding off) of the marks o r and equivalent Grade of B in the 7 point scale with latter grades O, A, B, C, D, E and F at the Master’s Degree level, in the relevant subject from an Indian University, or, an equivalent degree from a foreign University. (cid:29) The word ’with at least 55% of the marks’ means not less than 55%. Therefore, th e DHE Assam has rightly returned the proposal sent by the Governing Body of the College holding that the petitioner does not possess the norms prescribed by UGC as he got only 54.6% marks in the Master’s Degree. 16. Learned counsel appearing for the petitioner has submitted that there is no mention in the advertisement dated 26.09.2007 that a candidate must have 55% of marks to be eligible for appointment to the post of Lecturer. However, perus al of the advertisement in question would show that the applications were invite d from the candidates having UGC norms. In my opinion, the expression, (cid:28)latest U GC norms (cid:29) are adequate enough to construe that the candidates having qualified i n the NET/SLET/M.Phil or Ph.D. must have 55% in the Master Degree Level. 17. ion has referred to the following decisions;- Mr. Sharma, learned counsel for the petitioner in support of his submiss i) (2005) 2 SCC 10, State of U.P. & Ors. -vs- Pawan Kumar Tewari & Ors. ii) (2006) 8 SCC 671, KVS -vs- Sajal Kr. Roy & Others, iii) Bhudev Sharma -vs- District Judge, Bulandshahr, (2008) 1 SCC 233, iv) Selin Mary Mammen -vs- Mahatma Gandhi University & Ors. (2008) 17 SCC 615, On going through the decisions referred to hereinabove, the Court notes that the Pawan Kumar Tewari and others (supra) and Bhudev Sharma (supra) deal wi th relaxation in case of reservation. While Sajal Kr. Roy (supra) deals with relaxation in case of age in recr uitment process. Selin Mary Mammen (supra) deals with admission in M.Sc. (Physics) Course of study, wherein marks obtained by the candidate was marginally short of the p rescribed minimum percentage of marks to be obtained in qualifying examination, i.e. in B.Sc. (Physics). Minimum 55% marks in B.Sc. (Physics) prescribed as qual ification by rules of the University. Appellant secured 54.9% marks in qualifyin g examination. However, college granted admission by rounding off 54.9% to 55% m arks. When the matter was brought to the notice of the University, it clarified that rounding off marks to 0.5 and above to the nearest whole number was not pe rmissible and thus University held appellant ineligible for admission. In the me antime, the appellant completed full course and also took examination but result withheld. The decision of the University was challenged before the High Court. The High Court held that admission having been granted in violation of the rules , ineligibility was not liable to be condoned. However, the same being challenge d before the Apex Court, the Apex Court having regard to the facts that the mark s secured by the appellant in the qualifying examination fell short by only one mark in the total and that the appellant already prosecuted the full course of s tudy, exercising jurisdiction under Article 142 of the Constitution granted reli ef to the appellant directing the respondent to declare her result without treat ing her ineligible or disqualified. But, while allowing the appeal, the Apex Cou rt further made it clear that the order was passed considering the totality of t he fact and circumstances of the case and the same does not become a precedent f or other cases. Thus, the aforesaid cases relied upon on behalf of the petitioner are of no help to the writ petitioner. 18. On the other hand, Mr. Chamuah, learned counsel appearing for the respon dent No.5 (UGC), in support of his submission has relied upon the decision in Or issa Public Service Commission and another -vs- Rupashree Chowdhary and another, reported (2011) 8 SCC 108. In this case, the Orissa Public Service Commission p ublished an advertisement inviting applications from suitable candidates for the Orissa Judicial Service Examination 2009 for direct recruitment to fill up 77 p osts of Civil Judges (JD), pursuant to which, Respondent No.1 applied for the sa id post. She appeared in the preliminary written examination and being successfu l, she appeared in the main written examination which was held from 15.7.2009 to 18.7.2009. However, in the list of successful candidates who were eligible for interview, published on 25.8.2009, the respondent’s name was not there. Immediat ely after publication of the result of the main written examination, the respond ent applied for the marks in the main written examination and the mark sheet of the respondent was issued to her. After receiving the same, she came to know tha t she had secured 337 marks out of 750 i.e. 44.93% of marks and more than 33% of marks in each subject. As per Rule 24 of the Orissa Superior Judicial Service a nd Orissa Judicial Service Rules (2007) (for short ’the Rules’), the candidates who have secured not less than 45% of the marks in the aggregate and not less th an minimum of 33% of marks in each paper in the written examination should be ca lled for viva voce test. Since the respondent secured 44.93% marks in the aggreg ate was not called for interview/viva voce test. Aggrieved thereby respondent ap proached the High Court of Orissa by filing a writ petition with a prayer that s he should be called for the interview as the fraction of marks i.e. 44.93% secur ed by her should have been rounded off to 45% and in that way she would have ful filled the criteria as per the Rules. The High Court vide its order dated 8.12.2 009 allowed the writ petition filed by the respondent against which the appeal w as filed by Orissa Public Service Commission. The Hon’ble Apex Court while allow ing the appeal held that when the words of a statute are clear, plain or unambig uous, i.e. they are reasonably susceptible to only one meaning, the courts are b ound to give effect to that meaning irrespective of consequences, for the act sp eaks for itself. There is no ambiguity in the language of Rule 24 leading to two conclusions and allowing the interpretation in favour of the respondent which w ould be different to what was intended by the statute. Therefore, no rounding of f of the aggregate marks is permitted in view of clear and unambiguous language of Rule 24 of the Rules. 19. In the instant case, following the UGC Regulation 2000, the State Gover nment vide notification dated 20.2.2003 prescribed the norms for the post of Lec turers to have good academic records with at least 55% (no rounding off) marks. Hence, when the notification made it clear that there will be no rounding off of marks, no relief could be granted to the petitioner, in view of the decision in Orissa Public Service Commission case (supra) and thus the decision relied upon by the learned counsel for the respondent No.5 is squarely applicable in the ca se in hand. 20. In view of the foregoing reasons and discussions, the Court is not willi ng to exercise its power of judicial review. Under the guise of judicial review, the Court cannot enter into the question of eligibility criteria of norms fixed by UGC for appointment of Lecturers in Universities and Colleges. The prayer fo r a writ of mandamus, as sought for by the petitioner, cannot be granted by this Court as the same is not in its purview, considering the facts and circumstance s of the present case. As such the writ petition is dismissed being devoid of an y merit. The parties are left to bear their own costs.