The division bench of Justice Uday Umesh Lalit, Justice S. Ravindra Bhatt, and Justice Sudhanshu Dhulia of the apex court in the case of University of Kerala and Ors, etc V. Merlin J.N. and ANR, etc stated that the UGC rules exempting Ph.D. holders from NET will apply retrospectively.
BRIEF FACTS
The factual matrix of the case is that the university issued a notification for inviting applications for the post of lecturer of various subjects, which also includes sociology. The advertisement also mentions the minimum qualification criteria required. One mandatory condition was that the candidates should fulfill the eligibility requirement for Lectureship, i.e., the NET. At the same time, the advertisement exempted candidates who had a Ph.D. in the concerned subject from qualifying for the NET. After that, when the application was processed, and after her interview by the selection committee, he was assessed and ranked in the first position and the respondent was ranked in 2nd position. Therefore, the present writ petition is the result of the decision of the division bench of the Kerala High court and the issue involved is the legality of Dr. Jayakumar’s appointment as Lecturer in Sociology by the University.
The learned counsel appearing on behalf of Dr. Jayakumar contended that the appointment was made in accordance with the extant law and regulations. After that, it was contended that when the advertisement was published and also when Dr. Jayakumar was appointed, he was fully qualified and entitled to be appointed as a lecturer. It was also contended that prior to Dr. Jayakumar’s appointment, the UGC had, through its resolution passed in its 471st meeting, clarified that the 2009 Ph.D. Regulations and 2009 UGCR were prospective in nature, and not retrospective.
The learned counsel appearing on behalf of Dr. Merlin contended that the petitioner was ineligible and could not have been granted exemption from the NET qualification which was essential under the prevalent 2009/10 UGCR. It was also contended that the candidates who obtained their Ph.D. in accordance with the 2009/10 UGCR were the only class of candidates free from having to qualify for the NET. Dr. Jayakumar did not fall into that category and had earned his Ph.D. much earlier, hence the exemption did not apply to him. He had to have taken the NET to be eligible. The learned counsel also contended that Dr. Merlin is better qualified as she passed the NET in 1998 and later obtained a PhD. Apart from this, she was also working as a contractual teacher since 2001. Despite these circumstances, the University appointed Dr. Jayakumar and rejected her nomination. She was the only one who was qualified out of the two of them, although Dr. Jayakumar was not. It was argued that the appellant, Dr. Jayakumar, could not rely on the UGC's 471st meeting resolution.
The learned counsel appearing on behalf of Dr. Merlin also relied on the judgments titled, State of Madhya Pradesh. v. Manoj Sharma and P. Suseela v. University Grants Commission.
COURT’S OBSERVATION
The court stated that they did not have the benefit of examining these amendments to the regulations in State of Madhya Pradesh. v. Manoj Sharma and P. Suseela v. University Grants Commission.To construe them as applying only prospectively, would give rise to an absurdity, and defeat the purpose for which the amendment was promulgated. The manner of interpretation of amendments, where the language adopted gives clear inference of retrospective application, was determined by this court in Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives and Ors., which pertained to the bar on eviction of tenants brought about retrospectively by an amendment. After that, this interpretation has withstood the test of time, and was upheld in the decision of Darshan Singh vs. Ram Pal Singh19 which succinctly stated:
“Courts will construe a provision as conferring power to act retroactively when clear words are used.”
Further, the court also relied on Shyam Sunder v. Ram Kumar to discuss the scope and ambit of declaratory law.
The court rejected the submission made by the learned counsel appearing on behalf of the respondent that it was not the UGC’s intention to give retrospective effect to the 2016 UGCR, even though the UGC had the power to do so under Section 26(3) of the UGC Act. It was additionally urged that in such circumstances, the court should not interpret the amendments so as to confer such benefits retrospectively, especially to pending proceedings by stating that In situations such as these, a retrospective restoration of rights that had earlier been taken away, will certainly affect pending proceedings - however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. If on such consideration, it is held by the court that an amendment speaks a language which expressly or by clear intendment takes in even pending matters, the court of the first instance, as well as the court of appeal, must have regard to the intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of the first instance.
The court stated that the logic behind all the versions of UGCR to exempt M. Phil. / Ph.D. holders from qualifying in the NET was perhaps premised on the understanding that such a doctorate in one’s chosen subject, involving years of study, would render a greater understanding of the subject compared to most other candidates taking the NET who have only obtained a Master’s degree. Such qualification is undoubtedly awarded for the proven proficiency of the candidate in the concerned subject or discipline. This is apparent from the minimum qualification requirements of different positions as well. To interpret the 2018 UGCR prospectively would imply that a pre-2009 Ph.D. holder’s appointment would be rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach – which is clearly unwarranted. This court, therefore, holds that Dr. Jayakumar’s appointment is protected by the 2016 UGCR, which is applicable retrospectively
CASE NAME- University of Kerala and Ors etc V. Merlin J.N. and ANR etc
CITATION- CIVIL APPEAL NO(S). OF 2022 (@ SPECIAL LEAVE PETITION (CIVIL) NO(S). 12591-12596 OF 2020)
DATE- 17.08.2022
CORUM- Justice Uday Umesh Lalit, Justice S. Ravindra Bhatt and Justice Sudhanshu Dhulia
Picture Source :