Gauhati High Court
Kanai Lal Bhattacharjee vs The State Of Assam And 2 Ors on 20 August, 2021
Page No.# 1/4
GAHC010031772019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No.: WP(C)/1496/2019
KANAI LAL BHATTACHARJEE
S/O. SRI NARAYAN CH. BHATTACHARJEE
R/O. WARD NO.10
P.O. DHEKIAJULI
DIST. SONITPUR
ASSAM-784110.
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HIGHER EDUCATION DEPTT.
DISPUR
GUWAHATI-06.
2:DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
3:THE PRINCIPAL CUM SECRETARY
RANGIA COLLEGE
RANGIA
DIST. KAMRUP
ASSAM.
------------
Advocate for : MR. U K NAIR
Advocate for : SC
HIGHER EDU appearing for THE STATE OF ASSAM AND 2 ORS.
Page No.# 2/4
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
20.08.2020
Heard Mr. U.K. Nair, learned Sr. counsel for the petitioner. Also heard Mr. K. Gogoi,
learned Standing Counsel, Higher Education for the respondent Nos. 1 and 2 and Mr. S.
Chakraborty, learned Counsel for the respondent No. 3.
2) The contention of the petitioner herein is that he passed Master of Commerce
(Commercial Law) with 55% from Guwahati University in the year 1994 and also obtained
the degree of Master of Philosophy (M.Phil) in Commerce in April 2009 from Periyar
Institute of Distance Education (PRIDE), Periyar University, Salem, Tamilnadu on Distance
Mode. It is stated that he served as an Assistant Professor of Commerce in Rangia
College, District - Kamrup w.e.f. 20.11.2010 since its venture stage. Though the
petitioner's name was recommended for provincialisation of his service under the
provisions of the Assam Venture Educational Institution (Provincialisation of Services) Act,
2011, amended in 2012, but the respondents in the Higher Education Department dropped
his name from provincialisation under the provisions of the said 2011 Act.
3) Relying on a judgment of this Court passed in the case of Dr. Mina Kalita Vs. State
of Assam and two others, [WP(C) No. 2393/2016], decided on 27.09.2018 the petitioner
stated that he should also be considered for provincialisation of his service in terms of said
order of the Court dated 27.09.2018. The petitioner also contended that he obtained
information under RTI Act from the Directorate of Higher Education, Assam that altogether
265 numbers of M. Phil. Degree holders have been provincialised under the provisions of
said 2011 Act.
4) Petitioner stated that considering the above, his service should be provincialised as
an Assistant Professor at Rangia College, Kamrup w.e.f. 01.01.2013 and his salary and
other benefits should be paid to him as given to his other colleagues in said Rangia
College, whose services have been provincialised under the provisions of said 2011 Act.
5) The petitioner further contended that though the said 2011 Act has been struck
Page No.# 3/4
down by a Division Bench of this Court, but the said Court by order dated 02.01.2017
passed in WP(C) No.167/2017 have given necessary protection to the employees, whose
services have been provincialised.
6) Mr. K. Gogoi, learned Standing counsel, Higher Education Department placed a
judgment of the Hon'ble Division Bench of this Court in WP(C) No. 4788/2011 dated
07.02.2017 (Prahlad Konch and 93 others Vs. State of Assam and Three Others) and
stated that similarly placed Assistant Professors of Venture College having M.Phil Degree
approached this Court for exemption from the requirement of NET/SLET qualification for
the purpose of consideration of provincialisation of their service under the said 2011 Act
and the Division Bench, by its Judgment and Order dated 07.02.2017 passed in said
case, categorically observed that the decision of the Central Government, communicated
through the letter dated 03.11.2010, in pursuant to the resolution of the UGC for
exemption from NET requirement, to reject the resolution for exemption and specifying
that NET/SLET was a compulsory for teaching positions, as a part of the National policy for
maintenance of standards in higher education and, therefore, any dilution of standard by
a Court order would surely undermine the Nation's interest and also the power given to
the Central Government, under Section 20 of the UGC Act, 1956. Therefore the Court (said
Division Bench) cannot but hold that the petitioners are not entitled to any exemption
from the requirement of NET/SLET qualification (at Para 17).
7) Mr. Gogoi, learned Standing counsel, Higher Education also stated that in the said
Judgment and Order dated 07.02.2017, the Hon'ble Court further observed that the
petitioners are serving in venture category institutions, where they must have been
appointed under relaxed criterion and therefore by virtue of such appointment, they
cannot have a legitimate expectation to be provincialised, as faculty members for under
graduate level teaching. Such indulgence in our mind would be undeserved, as it will
compromise the uniform standard of excellence, intended through NET/SLET qualification,
on account of the wide variation of standards in different institutions, for perusing the
M.Phil degrees (at Para 18). From the said Judgment and Order dated 07.02.2017 Mr.
Gogoi further placed that the Court observed that - the Court must not pass any order
which will undermine the required standard of excellence in appointment of faculty
members for higher education and therefore, on the strength of pursuing M.Phil
Page No.# 4/4
curriculum in distance mode, the quality of education cannot be allowed to suffer, through
recruitment of aspirants, without possession of the required degree which reflects on their
suitability and credentials for the job.
8) Considering the entire aspect of the matter and in the light of the said Division
Bench judgment, the Court is of the view that the petitioner is not a NET/SLET qualified
candidate and therefore, he cannot be considered for provincialisation of his service in the
year 2013 under the provisions of said 2011 Act. Though the petitioner has submitted that
265 Nos. of M.Phil. degree holders are provincialised under the provision of said 2011 Act,
but a Writ Court cannot issue a negative writ, directing the respondents to commit another
illegality, by allowing the incumbent not having requisite qualification on the date of
provincialisation of the service to provincialise his/her service that too by passing the law
laid down by a Division Bench in the matter noted above.
9) Accordingly, this writ petition being devoid of any merit stands dismissed.
JUDGE
Comparing Assistant
