Gauhati High Court
Bipul Kalita vs The State Of Assam And 2 Ors on 20 August, 2021
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GAHC010031772019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1470/2019
BIPUL KALITA
LATE TITHIRAM KALITA, VILL AND P.O- TULASHIBARI, DIST- KAMRUP,
PIN- 781376, ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SECRETARY 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
ASSA M
Advocate for the Petitioner : MR. U K NAIR
Advocate for the Respondent : SC, HIGHER EDU
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
20.08.2020
Heard Mr. U.K. Nair, learned Senior 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 Degree in
Commerce (Management) with 57.44% from Guwahati University in the year 1998 and
also obtained the degree of Master of Philosophy (M.Phil) in Commerce on 17.04.2009
from Periyar Institute of Distance Education (PRIDE) Periyar University, Salem, Tamilnadu.
It is stated that he served as an Assistant Professor of Management in Rangia College,
Rangia, District - Kamrup w.e.f. 08.08.2002 since the time the College was in 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 in Rangia College, Rangia w.e.f. 01.01.2003 and his salary and other
benefits should be paid to him as given to his other colleagues in Rangia college, whose
services have been provincialised under the provisions of said 2011 Act.
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5) The petitioner further contended that though the said 2011 Act has been struck
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 before the Court that
in the same the Court observed that - the Court must not pass any order which will
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undermine the required standard of excellence in appointment of faculty members for
higher education and therefore, on the strength of pursuing M.Phil 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
