Gauhati High Court
WP(C)/7982/2015 on 15 September, 2025
GAHC010231032015
2025:GAU-AS:12604
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) NO.7982 OF 2015
Dr. Kishor Kumar Deka,
S/o- Late Harakanta Deka,
R/o- Ward No.8, Milan Nagar, Barpeta
Road, District- Barpeta, Assam, PIN-
781309.
.......Petitioner
-Versus-
1. The State of Assam, represented by
the Commissioner and Secretary to the
Government of Assam, Higher Education
Department, Dispur, Guwahati-6.
2. The Director of Higher Education, Assam,
Kahilipara, Guwahati-19.
3. The Prinicipal, B.B.K. College, Nagaon,
District- Barpeta, PIN- 781309.
4. The Governing Body of B.B.K. College,
Nagaon, District- Barpeta, PIN- 781309,
represented by its Secretary, i.e., the
Prinicipal of the College.
.......Respondents
Page 1 of 31
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. K. N. Choudhury, Sr. Advocate,
assisted by Mr. U. K. Das, Advocate.
For the Respondent(s) : Mr. K. Gogoi, Standing Counsel,
Higher Education Department.
Date of Hearing : 08.09.2025.
Date of Judgment : 15.09.2025.
JUDGMENT & ORDER (CAV)
Heard Mr. K. N. Choudhury, learned senior
counsel assisted by Mr. U. K. Das, learned counsel, appearing
for the petitioner. Also heard Mr. K. Gogoi, learned standing
counsel, Higher Education Department, appearing for the
respondent Nos.1 & 2.
2] By way of the instant petition under Article 226 of
the Constitution of India, the petitioner is assailing, inter alia,
the impugned judgment & order dated 06.10.2015, passed by
the Court of the learned Assam Administrative Tribunal
(hereinafter referred to as the "Tribunal") in Appeal Case
No.11ATA/2014.
3] The brief facts of the case are that on 09.10.1999 an
advertisement was published whereby the respondent No. 3,
i.e., the Principal of B.B.K. College, invited applications from
the candidates having UGC norms for appointment to the post
of lecturer in English at B.B.K. College, Nagaon, Barpeta.
Accordingly, the petitioner applied for the said post, and after
Page 2 of 31
going through the due selection process, on 08.08.2000, he
was selected by the said college as a lecturer in the
Department of English, and he joined on the same date.
Thereafter, the respondent No. 2, i.e., the Director of Higher
Education, Assam (hereinafter referred to as the "respondent
DHE"), on 16.08.2000, approved the appointment of the
petitioner with two conditions, i.e.: -
(i) The appointment of the concerned incumbent would be
subjected to clearing of the NET/SLET and till then he/she
would be treated as probationers and liable to be discharged
if he/she fails to obtain clearance of NET/SLET,
(ii) The incumbent concerned will draw at the minimum of
Scale in Rs.8000/- P.M. during probationary period and other
allowances as admissible under rules as stated above.
Thereafter, the petitioner acquired a Ph.D. degree
on 26.08.2010, and accordingly, the respondent DHE, by
order dated 30.09.2010, withdrew the aforesaid conditions
and allowed the regular UGC scale of pay w.e.f. 26.08.2010,
with the date of the next increment on 01.08.2011. Aggrieved
by the aforesaid placement of scale of pay from the date of
acquiring the Ph.D. degree instead of his initial date of
appointment as allegedly granted to other similarly situated
lecturers, the petitioner filed a representation before the
Commissioner & Secretary to the Government of Assam,
Education (Higher) Department, Dispur, on 20.10.2011. The
aforesaid representation having not borne any fruit, the
petitioner filed an appeal before the Tribunal, being Appeal
Page 3 of 31
No. 11ATA/2014, challenging the conditions put in the
approval order dated 16.08.2000 and the order dated
30.09.2010, whereby the petitioner was allowed the UGC
scale of pay w.e.f. 26.08.2010 and prayed for the grant of the
UGC scale of pay w.e.f. the date of his initial date of joining.
The Tribunal, after hearing the said appeal, was pleased to
dismiss the same by judgment and order dated 06.10.2015.
Situated thus, the present writ petition has been filed.
4] Mr. K. N. Choudhury, learned senior counsel
appearing for the petitioner, submits that since similarly
situated lecturers had been granted similar scales of pay from
the date of joining after clearing the similar conditions
imposed in the subject approval order issued to the petitioner
on 13.01.2000, the impugned judgment & order of the
Tribunal is perverse. He further submits that the learned
Tribunal erred in law as well as in facts in holding that the
case of the petitioner herein is not identical with the other
similarly situated lecturers, the documents pertaining to
whom the petitioner relied upon in the appeal case and
sought similar reliefs under Articles 14 and 16 of the
Constitution of India. He further submits that the learned
Tribunal had failed to judiciously appreciate the documents
enclosed as Annexure-8 of the Appeal Memo inasmuch as in
the case of Sri Sudarshan Roy, one of the similarly situated
lecturers, as the petitioner, although his appointment was
given formal approval vide Order dated 12.09.2000;
subsequently, only upon qualifying for SLET, the said
incumbent was allowed to draw the regular UGC pay scale
Page 4 of 31
with normal increment from the date of his joining, i.e.,
28.08.2000. However, in the case of the petitioner, although
his appointment was given formal approval vide Order dated
16.08.2000; subsequently the petitioner, having obtained his
Ph.D. degree on 26.08.2010, was only allowed to draw the
regular UGC pay scale with normal increment w.e.f.
26.08.2010 and not from the date of his joining, as in the
case of Sri Sudarshan Roy. He further submits that similarly,
the benefit granted to Sri Sudarshan Roy was also granted by
the respondent authorities to Sri Piyush Kumar Mishra, Sri
Prahlad Basumatary, and Sri Jadab Chandra Basumatary
w.e.f. their respective dates of formal approval of
appointment. He accordingly submits that it is amply clear
from the records that the petitioner has been discriminated
against and deprived by the respondent authorities without
any reasonable classification or intelligible differentia and in
such a manner has violated the Right to Equality guaranteed
to the petitioner under Articles 14 and 16 of the Constitution
of India.
4.1] He further submits that the learned Tribunal erred
in law as well as in facts in holding that the Cabinet
Memorandum and the minutes of the meeting of the Pension
Board dated 04.05.2005 relied upon by the petitioner and
enclosed at Annexure-9 and 10 of the Appeal Memo are of no
consequence in the absence of a valid order issued by the
Government on the subject. He further submits that the said
conclusion of the learned Tribunal is cryptic, illogical, and
unreasonable inasmuch as the said Cabinet Memorandum and
Page 5 of 31
the Minutes of the meeting of the Pension Board dated
04.05.2005 have been acted upon and implemented by the
Government, and all the lecturers who had not qualified in the
NET/SLET and were appointed during the period from
13.01.2000 to 25.02.2003 were allowed to draw their pay and
allowances in the UGC Pay-Scale and were also placed in the
Senior Scale of Pay. He further submits that the respondent
Nos. 1 and 2 in their affidavit-in-opposition filed in the appeal
case have also not specifically disputed the aforesaid plea of
the petitioner that he is entitled to the benefits as envisaged
under the aforesaid Cabinet Memorandum and the Minutes of
the meeting of the Pension Board dated 04.05.2005.
4.2] He further submits that the learned Tribunal erred
in law as well as in facts in holding that the UGC Guidelines
notified on 24.12.1998 were applicable to the petitioner. He
further submits that the State Government adopted the said
Guidelines dated 24.12.1998 by way of an Office
Memorandum dated 13.01.2000, and the petitioner was
appointed as Lecturer in pursuance of the advertisement
dated 19.10.1999. He accordingly submits that the
advertisement dated 19.10.1999 cannot in any manner be
governed by the UGC Guidelines dated 24.12.1998 inasmuch
as it was adopted by the State of Assam vide the Office
Memorandum dated 13.01.2000, and on the date of the
advertisement for the post of Lecturer, the petitioner was fully
eligible for such appointment.
4.3] He further submits that it is not in dispute that the
UGC Regulations, 1998, were adopted by the Government of
Page 6 of 31
Assam on 13.01.2000, and prior to 13.01.2000, appointments
of lecturers were approved without imposing any condition for
clearing NET/SLET. He further submits that it is also not in
dispute that the advertisement was issued on 09.10.1999, the
petitioner was appointed on 08.08.2000, and the approval
order was issued on 16.08.2000. He accordingly submits that
since the condition for clearing NET/SLET was not essential at
the time of issuance of the advertisement, the insistence of
fulfilling the same by the impugned approval order is illegal.
4.4] In support of the aforesaid submissions, he relies
upon the following decisions of the Apex Court: -
(i) Kalyani Mathivanan v. K.V. Jeyaraj and Ors.,
reported in (2015) 6 SCC 363,
(ii) Tej Prakash Pathak & Ors. v. Rajasthan High Court
& Ors., in Civil Appeal No.2634 of 2013,
(iii) Basheshar Nath v. Commissioner of Income Tax,
Delhi and Rajasthan and anr., reported in 1959 AIR SC
149,
(iv) Somesh Thapliyal v. Vice Chancellor, H.N. B.
Garhwal University, reported in (2021) 10 SCC 116.
5] Per contra, Mr. K. Gogoi, learned standing
counsel, Higher Education Department, Assam, submits that
the appointment of the petitioner is conditional, i.e., subject
to clearing of the NET/SLET, and till then he/she will be
treated as a probationer and liable to be discharged if he/she
fails to obtain such clearance, the petitioner having accepted
the same, and as such, he cannot challenge the same after 15
Page 7 of 31
years. He further submits that once the petitioner chooses to
accept the regularization, which was conditional, then it would
have to be borne in mind that he had accepted the conditions
also. In support of the aforesaid submissions, he relies upon
the following decisions of the Apex Court: -
(i) M.P. Palanisamy & Ors. v. A. Krishnan & Ors.,
reported in (2009) 6 SCC 428,
(ii) Surendra Kumar & Ors. v. Greater Noida Industrial
Development Authority & Ors., reported in (2015) 14 SCC
382.
5.1] He further submits that the requirement of
NET/SLET for the appointment to the post of
Lecturer/Assistant Professor being a mandatory requirement,
the same cannot be relaxed, and it is beyond the authority
and jurisdiction of the state authorities to dilute the
requirement of such clearing of NET/SLET. He further submits
that the State of Assam at no point of time has relaxed the
said required norms. He further submits that in order to get
the UGC scale of pay, an appointee should fulfill the UGC-
prescribed norms. He further, by relying upon Clause (3) A of
the 9.0 UGC Regulations, 1991, regarding Minimum
Qualification for Appointment of Teachers in Universities and
Colleges (hereinafter referred to as the "1991 Regulation"),
and Clauses 4.4.0 and 4.4.1 of the UGC Notification on
Revision of Pay Scales, Minimum Qualifications for
Appointment of Teachers in Universities & Colleges and Other
Measures for the Maintenance of Standards, 1998 (hereinafter
referred to as the "UGC 1998 Notification"), submits that
Page 8 of 31
without having the required UGC norms, one cannot claim the
UGC scale of pay and is not entitled to the same till the
fulfillment of the required norms.
5.2] In support of the aforesaid submissions, he relies
upon the following decisions: -
(i) P. Suseela & Ors. v. University Grants Commission,
reported in (2015) 8 SCC 129,
(ii) Deepsikha Das v. State of Assam & Ors., reported in
(2017) 0 Supreme Gau 668,
(iii) Dr. Jyotirupa Sarma v. State of Assam & Ors, in
WP(C) No.577/2016,
(iv) Junu Devi & anr. v. State of Assam and Ors., in
WP(C) No.4803/2016,
(v) Om Prakash Sah v. State of Assam & Ors, in WP(C)
No. 8035/2017,
(vi) Smt. Anju Sarma v. State of Assam & Ors., in WP(C)
No.2708/2016,
(vii) Bharati Devi v. State of Assam and Ors, in WP(C)
No.2509/2021.
5.3] He accordingly submits that as per the statutory
requirement prescribed by the statutes regarding minimum
qualifications for appointment of Lecturers/Assistant
Professors and as per law, the petitioner is not entitled to the
benefit of the UGC scale of pay from the date of his initial
appointment without having the requisite qualifications of
NET/SLET.
Page 9 of 31
6] I have given my prudent consideration to the
arguments advanced by the learned counsel for both the
contending parties and have perused the material available on
record. I have also considered the case laws submitted at the
bar.
7] The short question that arises for determination is
whether the petitioner is entitled to the benefit of the UGC
scale of pay from the date of fulfilling the UGC norms or from
the date of his initial appointment, i.e., when he did not have
the requisite UGC norms.
8] In order to determine the issue in hand, apt to
refer to the advertisement dated 09.10.1999, issued by the
respondent authorities, which read as under:-
"THE ASSAM TRIBUNE
Dated Guwahati, Saturday the 9th October 1999
Applications are invited from the
candidates for the posts as follows: - (A) Post of
lecturer (the candidates should bear UGC
norms) (1) One post in English (Sanction) (2) One
Post each in Arabic, Hindi, History and
Mathematics (On negotiable consolidated pay)
(B) Laboratory Assistant -one post (Minimum
Qualification Passed H.S. (Sc) or equivalent, fair
knowledge of type writing is desirable).
Applications along with attested copies of
marksheets, certificate etc from HSLC onward
and other testimonials and a bank draft of Rs.
50/- (Fifty) should reach to Principal, BBK
College, Nagaon, Dist-Barpeta, Pin-781309
within fifteen days from the date of
advertisement."
9] Reading the aforesaid advertisement, it appears
that the respondent authorities invited applications from the
Page 10 of 31
candidates having UGC norms for the post of lecturer in
English, amongst others, at B.B.K. College, Nagaon, Barpeta.
It is thus evident that it is essential for an applicant to have
the UGC norms in order to be eligible to be appointed for the
said post of lecturer. It appears that the petitioner,
accordingly, applied for the said post of lecturer, and after
being selected, was appointed by appointment order dated
08.08.2000, and he joined on the same date. It appears that
the appointment of the petitioner was approved by the
respondent DHE by order dated 16.08.2000, which read as
under: -
"GOVERNMENT OF ASSAM
OFFICE OF THE DIRECTOR OF HIGHER EDUCATION::ASSAM::KAHILIPARA
GUWAHATI-19
Ref:- Letter No.BKC/Lect/formal appvl/2000/525 Dt.
9/8/2000 Received from the Prinicipal B.B.K. College, P.O-
Nagaon, Dist- Barpeta and this office letter
No.G(B)AC/62/2000/31 Dt 5/08/2000.
Sub:- Formal approval of appointment of lecturer.
ORDER
Resolution No. 1 Dt. 8/4/2000 of the meeting of the
Special Body/Governing Body of B.B.K. College, P.O-
Nagaon, Dist- Barpeta appointing he following teacher(s) is
hereby approved formally subject to the following terms and
conditions:-
(1) The appointment of the concerned incumbent
would be subjected to clearing of the NET/SLET and till that
he/she would be treated as probationers and liable to be
discharged if he/she failed to obtain clearance of
NET/SLET.
(2) The incumbent concerned will draw at the
minimum of Scale in Rs. 8000/-P.M. during probationary
period and other allowances as admissible under rules 25
stated above
Name of Date of effect Department The post Scale of
the against which pay
incumbent the apptt., is
made,
sanctioning
order No. and
date
Sri 8/8/20000 English Vice Xavier 8000-
Kishor Manual 13500/-
Kumar resigned
Deka
In the resolution of the G.B./S.B of the college is found
incorrect or if any procedural defect is found in selection of
the candidate, the approval of appointment of teacher
concerned will be cancelled without any notice.
Sd/- Dr. G.N. Talukdar
Director of Higher Education, Assam,
Kahilipara, Guwahati-19
Memo No. G(B)AC/(sic)/2000/36 Dt.16/8/2000"
10] Reading the aforesaid approval order, it appears
that the appointment of the petitioner to the subject post of
lecturer was approved subject to fulfillment of clearing of the
NET/SLET, and until such clearance, he would be treated as a
probationer and will draw at the minimum of the scale in
Rs.8,000/- per month during the probationary period. It
further appears that it is further stipulated in the appointment
order that in the event the petitioner fails to obtain clearance
of NET/SLET, he shall be liable to be discharged from the said
post of lecturer. Thereafter, the petitioner had acquired a
Ph.D. degree on 26.08.2010, and accordingly the respondent
DHE, by order dated 30.09.2010, withdrew the aforesaid
conditions and allowed a regular UGC scale of pay w.e.f.
26.08.2010 with the date of the next increment on
01.08.2011. The order dated 30.09.2010 read as under: -
"GOVERNMENT OF ASSAM
OFFICE OF THE DIRECTOR OF HIGHER EDUCATION::::ASSAM
KAHILIPARA::::GUWAHATI-19
ORDER
No.G(B)AC/97/2010/24 Dated Kahilipara the 30-09-2010
On fulfillment of terms and conditions
mentioned in this Office's Order
No.G(B)AC/62/2000/36, dated 16-08-2000, in
respect of Sri Kishor Kumar Deka, lecturer in the
department of English of B.B.K. College, Nagaon,
District- Barpeta, regular UGC Scale of pay of
Rs.8000/-13,500/- P.M is allowed with effect from 26-
08-2010 with date of next increment on 01-08-2011
as Sri Kishor Kumar Deka has obtained Ph.D. Degree
on 26-08-2010.
This is subject to cancellation/modification
without prior notice or assigning any reason thereof
and legal action to be taken accordingly, if the
testimonials etc. submitted in this connection are
found fabricated/improper or in contrast to provision
of regulations and rules.
Sd/ B.K. Nath
Director of Higher Education:::Assam
Kahilipara:::Guwahati-19
Memo No.G(B)AC/97/2010/24-A Dated Kahilipara the 30-09-2010"
11] Apt at this juncture to refer to relevant paragraphs
of the affidavit-in-opposition filed on behalf of the respondent
Nos. 1 & 2, which read as under: -
"4. That the deponent begs to state that the
University Grants Commission has notified the
UGC guidelines vide letter No. F3-1/94(PS),
dated 24.12.1998 regarding minimum
qualification for the appointment of teachers in
Universities and Colleges. As per provision of
the guidelines the qualifications of a candidate
for college teachers is a good academic records
and minimum 55% of marks at the Master
Degree Level having qualifying NET with effect
from 24.12.1998. However, candidate having
Ph. D Degree may be exempted from NET. The
appellant Sri Kishore Kr. Deka, have applied for
the post of Lecturer in B.B.K, College, Nagaon,
as per advertisement of the College dated
09.10.1999 for which he is not admissible to
receive UGC scale of pay.
5. That with regard to the statement made in
para 6.3 of the appeal petition the deponent
begs to state that as the appellant has no
requisite professional qualification, i.e.,
NET/SLET or Ph. D., he has been appointed as
probationer vide order No. G(B)AC.62/2000/36,
dated 16.08.2000 with effect from 08.08.2000
in the fixed scale of Rs. 8000/-P.M. with a
condition that he would clear NET/SLET within
the probation period.
6. That with regard to the statement made in
para 6.4 of the appeal petition the deponent
begs to state that the appellant has accepted
the appointment letter and the condition laid
down in the order. Later on the appellant
obtained the Ph. D. Degree on 26.08.2010.
Accordingly, he has been allowed to draw
regular UGC scale of pay from the date of
fulfillment of the condition with effect from
26.08.2010 vide communication dated
30.9.2010."
12] Reading the aforesaid affidavit in opposition, it
appears that the UGC has notified the UGC Regulations by
letter dated 24.12.1998 regarding minimum qualifications for
the appointment of teachers in Universities and Colleges. It
appears that as per the provisions of the aforesaid
regulations, the qualification of a candidate for college
teacher is a good academic record and a minimum of 55 % of
marks at the Master's Degree level having qualified NET w.e.f.
24.12.1998; however, a candidate having Ph.D. degree may
be exempted from having NET.
13] Pertinent that the Central Government in order to
make provision for the coordination and determination of
standards in Universities, established a University Grants
Commission, by enacting the University Grants Commission
Act, 1956 (hereinafter referred to as the "UGC Act, 1956").
Chapter II of the said Act provides for the Establishment of
the Commission, i.e., the University Grants Commission.
Chapter III provides the Powers & Functions of the
Commission, wherein Section 12 provides the Functions of the
Commission, which read as under:
"12. Functions of the Commission.--It shall be the
general duty of the Commission to take, in
consultation with the Universities or other bodies
concerned, all such steps as it may think fit for the
promotion and co-ordination of University education
and for the determination and maintenance of
standards of teaching, examination and research in
Universities, and for the purpose of performing its
functions under this Act, the Commission may--
(a) inquire into the financial needs of
Universities;
(b) allocate and disburse, out of the Fund of the
Commission, grants to Universities established or
incorporated by or under a Central Act for the
maintenance and development of such Universities or
for any other general or specified purpose;
(c) allocate and disburse, out of the Fund of the
Commission, such grants to other Universities as it
may deem [necessary or appropriate for the
development of such Universities or for the
maintenance, or development, or both, of any specified
activities of such Universities] or for any other general
or specified purpose:
Provided that in making any grant to any such
University, the Commission shall give due
consideration to the development of the University
concerned, its financial needs, the standard attained
by it and the national purposes which it may serve;
[(cc) allocate and disburse out of the Fund of the
Commission, such grants to institutions deemed to be
Universities in pursuance of a declaration made by
the Central Government under section 3, as it may
deem necessary, for one or more of the following
purposes, namely:--
(i) for maintenance in special cases,
(ii) for development,
(iii) for any other general or specified purpose;]
[(ccc) establish, in accordance with the
regulations made under this Act, institutions for
providing common facilities, services and programmes
for a group of universities or for the universities in
general and maintain such institutions or provide for
their maintenance by allocating and disbursing out of
the Fund of the Commission such grants as the
Commission may deem necessary;]
(d) recommend to any University the measures
necessary for the improvement of University education
and advise the University upon the action to be taken
for the purpose of implementing such
recommendation;
(e) advise the Central Government or any State
Government on the allocation of any grants to
Universities for any general or specified purpose out of
the Consolidated Fund of India or the Consolidated
Fund of the State, as the case may be;
(f) advise any authority, if such advise is asked
for, on the establishment of a new University or on
proposals connected with the expansion of the
activities of any University;
(g) advise the Central Government or any State
Government or University on any question which may
be referred to the Commission by the Central
Government or the State Government or the
University, as the case may be;
(h) collect information on all such matters
relating to University education in India and other
countries as it thinks fit and make the same available
to any University;
(i) require a University to furnish it with such
information as may be needed relating to the financial
position of the University or the studies in the various
branches of learning undertaken in that University,
together with all the rules and regulations relating to
the standards of teaching and examination in that
University respecting each of such branches of
learning;
(j) perform such other functions as may be
prescribed or as may be deemed necessary by the
Commission for advancing the cause of higher
education in India or as may be incidental or
conducive to the discharge of the above functions."
14] Chapter IV provides miscellaneous provisions
wherein Section 26 provides the power to the Commission to
make regulations, which read as under:
"26. Power to make regulations.--(1) The
Commission [may, by notification in the Official
Gazette, make regulations] consistent with this Act
and the rules made thereunder,--
(a) regulating the meetings of the Commission
and the procedure for conducting business
thereat;
(b) regulating the manner in which and the
purposes for which persons may be associated
with the Commission under section 9;
(c) specifying the terms and conditions of service
of the employees appointed by the Commission;
(d) specifying the institutions or class of
institutions which may be recognised by the
Commission under clause (f) of section 2;
(e) defining the qualifications that should
ordinarily be required of any person to be
appointed to the teaching staff of the University,
having regard to the branch of education in
which he is expected to give instruction;
(f) defining the minimum standards of
instruction for the grant of any degree by any
University;
(g) regulating the maintenance of standards and
the co-ordination of work or facilities in
Universities. [(h) regulating the establishment of
institutions referred to in clause (ccc) of section
12 and other matters relating to such
institutions;
(i) specifying the matters in respect of which
fees may be charged, and scales of fees in
accordance with which fees may be charged, by
a college under sub-section (2) of section 12A;
(j) specifying the manner in which an inquiry
may be conducted under sub-section (4) of
section 12A.]
(2) No regulation shall be made under clause (a) or
clause (b) or clause (c) or clause (d) 1 [(or clause (h) or
clause (i) or clause (j)] of sub-section (1) except with
the previous approval of the Central Government.
[(3) The power to make regulations conferred by this
section [except clause (i) and clause (j) of sub-section
(1)] shall include the power to give retrospective effect
from a date not earlier than the date of
commencement of this Act, to the regulations or any of
them but no retrospective effect shall be given to any
regulation so as to prejudicially affect the interests of
any person to whom such regulation may be
applicable.]
15] Reading Section 26(1)(e) & (g) of the said UGC
Act, 1956, it is apparent that the commission is empowered to
make regulations, inter alia, defining the qualifications that
should ordinarily be required of any person to be appointed to
the teaching staff of the university, having regard to the
branch of education in which he is expected to give
instruction, and also regulating the maintenance of standards
and the coordination of work and facilities in Universities.
16] Regulation 2 of the 1991 Regulations, which is
issued under sub-section (1) of Section 26 read with Section
14 of the UGC Act, 1956, lays down the qualifications required
for a person to be appointed to the teaching staff of the
University or in any of the institutions, including constituent or
affiliated colleges or other institutions as provided thereunder,
read as under: -
"2. Qualifications:
No person shall be appointed to a teaching post
in university or in any of institutions including
constituent or affiliated colleges recognised
under clause (f) of Section 2 of the University
Grants Commission Act, 1956 or in an
institution deemed to be a University under
Section 3 of the said Act in a subject if he does
not fulfil the requirements as to the
qualifications for the appropriate subjects as
provided in the Schedule 1.
Provided that any relaxation in the prescribed
qualifications can only be made by a University
in regard to the posts under it or any of the
institutions including constituent or affiliated
colleges recognised under clause (f) of Section 2
of the aforesaid Act or by an institution deemed
to be a university under Section 3 of the said
Act with the prior approval of the University
Grants Commission.
Provided further that these regulations shall not
be applicable to such cases where selections
through duty constituted selection committees
for making appointments to the teaching posts
have been made prior to the enforcement of
these regulations."
17] Reading the aforesaid provision, it appears that
unless a candidate fulfills the requirements as to the
qualifications for the appropriate subject as provided in
Schedule 1, he/she shall not be appointed to a teaching post
in the University or in any of the institutions, including
constituent or affiliated colleges, recognized under clause (f)
of Section 2 of the UGC Act, 1956, or in an institution deemed
to be a University under Section 3 of the said Act. It further
appears that the University concerned can relax the
prescribed qualifications with the prior approval of the UGC.
Schedule-1 of the 1991 Regulation provides the qualification
for the post of Lecturer in the subject of Arts, Sciences, Social
Sciences, Commerce, Education, Physical Education, Foreign
Language, and Law under Clause (3) A, which read as under:-
"Lecturer
(3) A
(a) Arts, Sciences, Social Sciences, Commerce,
Education, Physical Education, Foreign
Language and Law.
Good academic record with atleast 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 UGC, CSIR or
similar test accredited by the UGC"
18] Reading the aforesaid, it appears that one of the
essential requirements is that a candidate must have cleared
the eligibility test for lecturers conducted by the UGC/CSIR or
a similar test accredited by the UGC.
19] Now turning to Clauses 4.4.0 and 4.4.1 of the
UGC 1998 Notification, which has been relied upon by the
respondent in order to bring home the essential qualification
of clearing NET for appointment as a lecturer in Universities
and Colleges, read as under: -
"4.4.0 LECTURER
4.4.1 Humanities, Social Sciences, Sciences,
Commerce, Education, Physical Education,
Foreign Languages and Law.
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
& F at the Master's degree, level in the relevant
subject from an Indian University, or, an
equivalent degree from a foreign University.
Besides fulfilling the above qualifications,
candidates should have cleared the eligibility
test (NET) for lecturers conducted by the UGC,
CSIR or similar test accredited by the UGC."
20] Reading the aforesaid UGC 1998 Notification, it is
apparent that the minimum eligibility qualification of NET is
prescribed for the post of lecturers. Thus, clearance of NET
for the post of lecturer is one of the mandatory requirements,
which a candidate is required to possess in order to be
appointed to the post of lecturer in the University/College.
That apart, it is apparent from reading the aforesaid
Regulation and Notification that apart from the specification
of NET/SLET qualification, an excellent academic career for
the appointment of faculty members is also insisted upon.
Thus, the aforesaid requirements are to ensure that the
faculty members/lecturers etc., appointed are such that they
are able to impart a standard of excellence in higher
education. Pertinent that a perusal of the said UGC 1998
Notification, it is apparent that the respondent commission, by
issuing the said UGC 1998 Notification, has defined the
minimum qualifications for appointment of teachers in
Universities and colleges and other measures for the
maintenance of standards. Hence, it is clear that the said UGC
1998 Notification is issued under the provision of Section
26(1)(e)(g) of the UGC Act, 1956. That being so it is clearly
established that clearance of NET is a mandatory statutory
requirement to be fulfilled for appointment to the subject post
of lecturer in Universities and Colleges.
21] Apt at this stage to refer to Regulations 3.3.0 &
3.3.1 of the UGC Regulations on Minimum Qualifications For
Appointment of Teachers and Other Academic Staff in
Universities and Colleges and Measures for the Maintenance
of Standards in Higher Education, 2010, which read as under:
"3.3.0. RECRUITMENT AND QUALIFICATIONS
.......................
.......................
3.3.1. NET/SLET/SET shall remain the
minimum eligibility condition for recruitment
and appointment of Assistant Professors in
universities/colleges/institutions:
Provided however, that candidates, who
are or have been awarded a Ph. D. Degree in
accordance with the University Grants
Commission (Minimum Standards and
Procedure for Award of Ph.D. Degree)
Regulations, 2009, shall be exempted from the
requirement of the minimum eligibility condition
of NET/SLET/SET for recruitment and
appointment of Assistant Professor or
equivalent positions in Universities/Colleges/
Institutions."
22] A perusal of the aforesaid Regulation, it is
apparent that under the said UGC Regulation, while redefining
that NET/SLET/SET shall remain the minimum eligibility
condition for recruitment and appointment for Assistant
Professors in Universities/Colleges/Institutions, an exemption
has been granted to candidates who are or have been
awarded a Ph.D. degree in compliance with the UGC
(Minimum Standards and Procedure for Awards of
M.Phil/Ph.D. Degree) Regulation, 2009, from the requirement
of minimum eligibility condition of NET/SLET for recruitment
and appointment to the said post of Assistant Professor or
equivalent positions in Universities/Colleges/Institutions w.e.f.
the said UGC Regulations of 2010 coming into force. What
thus transpires from the above is that the Commission has
laid down the minimum eligibility conditions for recruitment of
Lecturers and Professors (now Assistant Professors) in
Universities/Colleges/Institutions right from 1991, read with
the regulations and amendments issued thereafter, as
NET/SLET/SET is the essential minimum qualification for
recruitment and appointment to such posts. However, an
exemption is granted to a candidate who is or has been
awarded a Ph.D. degree.
23] In the present case, it is apparent that the
respondents appointed the petitioner to the subject post of
lecturer subject to clearance of NET/SLET, and until such
clearance, he was placed in the minimum of the scale at
Rs.8000/- per month. Hence, unless the petitioner fulfills such
condition of eligibility, he cannot legally claim a post in the
UGC scale of pay. Admittedly, in the case in hand, the
petitioner acquired the Ph.D. degree on 26.08.2010, and upon
the petitioner acquiring the said degree, the respondent
authorities placed the petitioner in the regular UGC scale by
the impugned order dated 30.09.2010 w.e.f. 26.08.2010, i.e.,
from the date of acquiring the Ph.D. degree.
24] Accordingly, the petitioner, when appointed to the
post of lecturer, did not possess the said mandatory minimum
eligibility qualification as prescribed under the UGC Regulation
but obtained a Ph.D. degree later on and therefore was
placed in the regular UGC scale of pay only from such date of
acquiring the same in terms of the subject
appointment/approval order.
25] Though an argument has been placed before this
Court on behalf of the writ petitioner that the advertisement
dated 09.10.1999 does not prescribe the clearance of
NET/SLET as a requisite condition for appointment to the
subject post of lecturer, the same cannot be accepted
inasmuch as it is specifically mentioned in the advertisement
that a candidate must fulfill the UGC norms.
26] That apart, to hold that to allow the petitioner to
draw the UGC pay scale prior to his acquiring UGC norms
during the period his appointment was considered as
probation and subjected to fulfillment of the UGC norms, it
would mean to treat unequal as equal, and this would be
clearly discriminatory. Therefore, I have no hesitation to hold
that unless and until the petitioner has fulfilled the UGC
norms, he is not entitled to the UGC scale of pay. Hence, the
impugned order by which the petitioner was placed in the
UGC regular scale of pay from the date of acquiring the Ph.D.
degree is legal and valid. Reference is made to the decision of
this Court in the case of Ms. Deepsikha Das (Supra),
wherein this Court has held as under: -
"9. The specification of NET/SLET qualification
along with excellent academic career for
appointment of faculty members, is intended to
ensure standard of excellence in higher
education and dilution of requirement would
hardly serve the public cause. Right since the
date of advertisement on 30.5.1999, till she
was appointed, the petitioner was well aware
that UGC norms will have to be satisfied and
without any protest, she accepted the
appointment on probation, which stipulated the
requirement of securing NET/SLET qualification.
But in the last 17 years, the petitioner failed to
make any attempt to acquire the NET/SLET
qualification and therefore the drawl of lesser
pay by her, can also be attributed to the self
default of the probationer appointee.
10. The inability of the petitioner to secure the
NET/SLET qualification is attributed by her
learned counsel to denial of study leave by the
college authorities, for which, the petitioner had
to secure the M.Phil degree in the distance mode
from the Singhania University and it is
submitted that if study leave can be availed by
the probationer, she can make an earnest
attempt to acquire the NET/SLET or Ph.D.
qualification.
11. This Court is mindful of the fact that the
petitioner on account of the stipulation in her
appointment order, is drawing lesser salary
than her colleagues in the college. But at the
same time, the petitioner is not at par with
regular faculty members drawing full salary, as
they satisfy the UGC norms. To allow drawal of
equal pay by a person without UGC norms,
would mean treating unequals as equal and
this would be discriminatory. Therefore,
granting relief of equal pay for the petitioner
would not be justified and the same is declined,
accordingly."
27] The argument of the learned senior counsel that
some others who were similarly appointed were given UGC
pay scales after clearing NET/SLET from the date of the initial
appointment even assuming the same to be correct, the same
amounting to treating unequal as equal and being in total
violation of Article 14 of the Constitution of India, is of no
consequence inasmuch as it is settled law that illegality
cannot be perpetuated, even if similar actions have been
taken in the past. In other words, equality cannot be claimed
in illegality, and no courts ought to enforce or perpetuate
illegal or irregular actions. Hence, the said contention of the
learned senior counsel is also rejected.
28] It is worthwhile to mention that the appointment
of the petitioner was a conditional one, and the petitioner,
having accepted the said conditions of the appointment and
approval order dated 05.08.2000, cannot now, after 15 years,
challenge the same. On this ground alone also, the challenge
made in the instant writ petition is liable to be rejected.
29] The argument of the learned senior counsel
appearing for the petitioner to the effect that the Government
of Assam in its Cabinet Memorandum vide File
No.B(2)(H)274/2004 circulated with the proposal to allow
exemption to the lecturers appointed between 13.01.2000 to
25.02.2003 from clearing NET/SLET and the Pension Board in
its meeting held on 04.05.2005 agreed to withdraw the
condition of NET/SLET for the college teachers appointed up
to 20.02.2003 also cannot be accepted inasmuch as the
requirement of NET and SLET for appointment to the subject
post of lecturer being a statutory requirement, the same
cannot be diluted for appointment to the post of
Lecturer/Assistant Professor unless the UGC Regulation
provides relaxation of the same.
30] I am thus of the considered view that to get the
UGC scale of pay, one should fulfill the UGC's prescribed
norms, and for non-fulfillment of the same, one cannot claim
the UGC's scale of pay. Hence, at the cost of repetition, I hold
that the petitioner was not entitled to the regular UGC's scale
of pay prior to 26.08.2010, i.e., when he did not have the
requisite UGC norms, and only from 26.08.2010, i.e., when he
acquired the Ph.D. degree, he was entitled to exemption of
NET/SLET/SET eligibility requirements, and upon being so
entitled, he was exempted accordingly.
31] Turning now to the judgment of the Tribunal,
which is assailed before this writ court, apt to refer to the
relevant paragraphs of the aforesaid impugned judgment,
which read as under: -
"The first point raised by the Appellant is that
there were other persons who were appointed
in a similar manner with similar conditions but
were later allowed to draw the regular pay
scale with due annual increment from the date
of appointment. He has named four persons
and has enclosed copies of the orders
concerning them. The Appellant has raised the
issue of discrimination against him. It is seen
from the orders in respect of the four persons
named by him that they had cleared SLET
because of which they were allowed regular
scale of pay. The Appellant has not cleared NET
or SLET. He has acquired a Ph.D. Degree, which
as per the guidelines exempts him from the
requirement of clearing NET/SLET. In such a
situation his case is not identical with the four
persons he has mentioned.
The next point raised by the Appellant is
that there was a Cabinet Memorandum in a
certain file for treating Lecturers appointed
between 13/01/2000 to 25/02/2003 to be at
par with those appointed before 13/01/2000 to
enable them to enjoy the same benefits and
privileges. He has also stated that there was a
decision in the meeting of the Pension Board
dtd. 04/05/2005 that Lecturers appointed
between 13/01/2000 and 20/02/2003
exempted from clearing NET/SLET for receiving
senior scale of pay. These two documents
quoted by the Appellant and annexed with his
Memo of Appeal are not effective instruments of
Govt. decisions. A Cabinet Memorandum is a
proposal for a decision by the Cabinet while the
minutes of a meeting of the Pension Board are a
record of a deliberation in that meeting. If a
final decision is taken on a subject a formal
office memorandum or any other formal
communication addressed to all concerned is
issued notifying the Govt. decision. On this
point no order has been issued by the Govt.
because of which, irrespective of what was
proposed in the Cabinet Memorandum or what
has been recorded as a decision in the Pension
Board meeting has no validity. It is only a valid
order issued by the Govt. on a subject which
can take effect and which is applicable to
people. What has been recorded in the Cabinet
Memorandum or in the minutes of the Pension
Boards is not applicable to the Appellant or
anyone else because it has not taken the shape
of a formal Govt. order. Even otherwise the
State Govt. is not authorized to make changes
in the UGC guidelines.
The last point raised by the Appellant is
that the advertisement issued by the
Respondent No. 3 dtd. 09/10/1999 did not
mention the requirement of clearing NET/SLET.
The Govt. of Assam accepted the revised UGC
guidelines notified by the DOC 24/09/1908 by
an OM dtd. 13/01/2000. As the State Govt.
accepted the guidelines on 13/01/2000 it could
not be made applicable to the Appellant as the
advertisement was issued on 19/10/1999.
This statement of the Appellant is not correct.
The advertisement issued by the Respondent
No. 3 mentioned that the candidates should
haw UGC norms. Once it has been mentioned
that the candidates should have UGC norms,
what has been laid down by the UGC
automatically gets stated in the advertisement.
The Appellant is trying to say that the
advertisement did not mention the requirement
of clearing NET/SLET, but a plain reading of the
said advertisement shows that it did not even
mention the educational qualifications of a
Master's Degree. Mentioning UGC qualifications
and UGC norms covers everything that has
been laid down by the UGC. The second part of
the argument that the UGC norms notified by
the UGC on 24/09/1998 were adopted by the
State Govt. on 13/01/2000 and so they could
not be made applicable to the Appellant as the
advertisement was issued on 09/10/1999 is
also not tenable because the appointment was
made on 08/08/2000. UCC norms had been
notified by the UGC much before the date of
advertisement, and the State Govt. had
accepted them much before the Appellant was
appointed.
It is seen from, the averment made that
the UGC had fixed certain norms for the
appointment of teachers in Universities and
Colleges. In this clearing of NET was a
mandatory requirement and only candidates
having a Ph.D. degree were exempted from this.
The State Govt. included SLET alongwith NET
as an option for the candidates. In such a
situation no person could be appointed as a
Lecturer unless he had these qualifications and
the UGC pay scale could not be given to him.
Evidently in the absence of the required number
of qualified candidates, the State Govt. has
made a departure from appointing qualified,
candidates with UGC pay scale. It has brought
forward a concept of appointing a person on
probation with a fixed pay of Rs. 8000/- which
happened to be the minimum of the pay scale of
Lecturer at that particular point of time. This
concept of the State Govt. to appoint under
qualified teachers on a certain fixed pay to meet
the requirement of teachers in the absence of
qualified teachers has to be delinked front the
UGC pay scale which was provided for by the
UGC with the stipulated qualifications. Even if
the amount so fixed is the minimum of the pay
scale provided by the UGC, conceptually, it has
to be treated as an independent pay package
and an independent decision of the State Govt.
to meet its requirements. In such a situation the
Appellant cannot claim that he should have
received the UGC pay scale even when he was
not qualified to be appointed as Lecturer as per
the UGC norms. He acquired the Ph.D. degree
on 26/08/2010 and because of this the
requirement of clearing NET/SLET longer
remained for the Appellant with effect from that
date. The Appellant thus became eligible to be
appointed in the scale of pay provided by the
UGC w.e.f. that date only. The Respondent No.
2 has therefore rightly issued the said order.
It is seen from the statement made by the
Appellant in the Memo of Appeal that though by
the order of the Director of Higher Education
dtd. 16/08/2000, the Appellant was appointed
on a fixed pay of Rs. 8000/- per month and
was not be entitled to annual increment, the
College authorities of B.B.K. College, Nagaon,
Barpeta granted the Appellant annual
increments from the date of his initial
appointment and he has drawn them without
break ever since. The action of the College
Authorities of B.B.K. College is evidently
unauthorized and the increments received by
the Appellant are also unauthorized. The Govt.
may examine this issue and take suitable
action in the matter."
32] Reading the aforesaid judgment, it appears that
the Tribunal has held that since the petitioner lacked the
minimum qualification prescribed by the UGC, he could not
have been appointed as a lecturer unless he had these
qualifications, and the UGC pay scale could not be given to
him and has accordingly upheld the impugned order dated
30.09.2010 issued by the respondent DHE granting the
regular UGC scale of pay w.e.f. 26.08.2010, i.e., from the
date on which he acquired the Ph.D. degree. I am thus of the
unhesitant view that the Tribunal has not committed any
illegality or infirmity in upholding the impugned order dated
30.09.2010. Therefore, the writ petition is devoid of any merit
or substance whatsoever.
33] Accordingly, writ petition stands dismissed. No order
as to costs.
JUDGE
Comparing Assistant
