Patna High Court

Simpi Kumari vs The State Of Bihar on 18 February, 2021

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8089 of 2020
      ======================================================

Simpi Kumari (Female), aged about 28 years, wife of Abhishek Pradhan, residing at Raja S.N. Road (Near Dr. Arun Sinha, Mashak Chak), P.S.- Adampur, District Bhagalpur - 812001.

... ... Petitioner/s

Versus

1. The State of Bihar through the Special Secretary, Department of Higher Education, Government of Bihar, Patna.

2. Tilka Manjhi Bhagalpur University, Bhagalpur through its Registrar.

3. The Vice-Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur.

4. The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur.

5. The Coordinator, College Development Council, Tilka Manjhi Bhagalpur University, Bhagalpur.

6. The Officer on Special Duty (Research), Tilka Manjhi Bhagalpur University, Bhagalpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner : Mr. Dronacharya, Advocate For the State/R1 : Mr. Madhaw Prasad Yadav (Adv.), GP 23 with Mr. Rajesh Kumar Sinha (Adv.), AC to GP 23 For the University/R2-6 : Mr. Ashhar Mustafa, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 18-02-2021

Heard Mr. Dronacharya, learned counsel for the

petitioner; Mr. Madhaw Prasad Yadav, learned Government

Pleader 23 along with Mr Rajesh Kumar Sinha, learned

Assistant Counsel to GP 23 for the State, and; Mr. Ashhar

Mustafa, learned counsel for the Tilka Manjhi Bhagalpur

University (hereinafter referred to as the "University").

2. The petitioner has moved the Court for the

following reliefs:

".... for issuance of an appropriate Patna High Court CWJC No.8089 of 2020 dt.18-02-2021

Writ(s)/Order(s) or direction and thereby to issue a writ in the nature of Mandamus commanding the Respondent University, particularly the Coordinator (Respondent No.5) to allow the petitioner to appear in Interview in PAT/19/NET/JRF, to appear before Interview board of the University for taking admission in Research methodology class along with PAT-19 qualified candidates for this purpose, since she (petitioner) has already successfully passed Pre-Ph.D. Test held in Sept. 2017, Result of which has been declared in January, 2018.

(I) The petitioner being eligible candidate be allowed to appear before the Interview board for admission in Ph.D. course along with PAT-19 (Pre-Admission Test for Ph.D.) qualified candidates.

(ii) The petitioner being entitled for taking admission in Research Methodology class as per Regulation of T.M.B. University be allowed to face interview and to take admission in Ph.D. course.

(iii) After being successful in interview she be also permitted to participate in online classes for Research Methodology class (Course).

(iv) The petitioner be paid the cost of legal proceeding throughout.

(v) The petitioner be also granted any other relief/s permissible under the facts and circumstances of the case."

3. The moot question for consideration in the present

application is whether the concerned regulation of the

University Grants Commission, as adopted by the University on

27.01.2018, would be applicable with regard to the examination

viz. Pre-Admission Test for PhD 2017 (hereinafter referred to as Patna High Court CWJC No.8089 of 2020 dt.18-02-2021

"PAT 2017") insofar as the period of validity of the result of the

said examination is concerned for admission into the PhD

Course.

4. The following facts are not in dispute - The

process for conducting the PAT 2017 examination began with

publication of notice on 23.05.2017; pursuant to the same, the

petitioner also applied for taking the examination, which was

held on 14.09.2017, and; the result was declared on 09.01.2018.

5. Learned counsel for the petitioner submitted that

the examination result of the petitioner is required to be

considered valid for three years in view of the subsequent

regulation adopted by the University on 27.01.2018, which

stipulated such period of validity of the result of the concerned

examination, and clearly specified that the same would come

into effect from the 2017-18 Session. Learned counsel submitted

that as the examination was held and result declared after

Session 2017-18 had begun, it would but naturally cover the

case of the petitioner and she has to be given such benefit and,

accordingly, allowed to take admission in the PhD programme

without having to again clear such examination under the new

regulation.

6. Per contra, learned counsel for the University Patna High Court CWJC No.8089 of 2020 dt.18-02-2021

submitted that the process for the PAT 2017, which the

petitioner appeared for and cleared, having started in May, 2017,

and governed at the relevant time by the ordinance which was

issued prior to the later ordinance, clearly stipulating that the

period for which the result of the examination would be valid

for only one year, no benefit can be granted to the petitioner.

Learned counsel clarified that based on that result, people were

counselled and had taken admission in the PhD programme

within one year, but the petitioner did not take any initiative

within time for taking admission in PhD programme for the next

two years and suddenly, she has woken up. Learned counsel

submitted that the petitioner was now attempting to take

advantage of the new regulation. It was submitted that the

petitioner's contention(s) is/are not fit to be entertained for the

reason that when the process for the PAT 2017 commenced, the

new regulation, having not been adopted/promulgated by the

University, was not even in existence and in any view of the

matter, the adoption/promulgation of the regulation as far as the

University is concerned, was only on and with effect from

27.01.2018 i.e., after the declaration of the result of the PAT

2017.

7. Learned counsel for the State adopted in toto the Patna High Court CWJC No.8089 of 2020 dt.18-02-2021

arguments of learned counsel for the University.

8. Having considered the facts and circumstances of

the case and submissions advanced by learned counsel for the

parties, the Court does not find merit in the present application,

so as to necessitate its intervention under Article 226 of the

Constitution.

9. On a plain reading of the regulation, which was

finally promulgated by the University on 27.01.2018, especially

Clause 1.2 thereof, clearly reads "those candidates, who have

been registered for PhD before the promulgation of this

ordinance would be governed by the earlier ordinance issued

from time to time under which he/she had been admitted".

Further, just the closing line of the Preamble at Clause 1.1 states

that it "shall come into force from the session 2017-18". The

Court would pause here. Even though the mention/reference is

to Session 2017-18, but it is no longer res integra that for a

process which has begun on any particular date, the law

applicable or in operation on the said date would apply and no

subsequent change would affect the process. Admittedly, in the

present case, the process was set into motion via publication of

notice on 23.05.2017. Further, the timelines for Session 2017-18

also give support to the view being taken by this Court, Patna High Court CWJC No.8089 of 2020 dt.18-02-2021

inasmuch as, the relevant academic session in the University

runs from 1st July of the year to 30th June of the succeeding year.

Thus, on both the aforesaid counts, benefit of the new/later

ordinance cannot be granted to or claimed by the petitioner.

10. The mere publishing or circulation of model

regulations by the University Grants Commission would not

ipso facto lead to a situation where all regulations issued by the

University Grants Commission could be said to be binding on

the universities concerned, except when duly

adopted/promulgated, when such university happens to be a

State University. Hence, the new/later regulation would become

effective only when adopted/promulgated by the university

concerned, when such university happens to be a State

University. In the present case, the University has been

operating under the Bihar State Universities Act, 1976. Support

for this reasoning can be drawn from the Hon'ble Supreme

Court's decision in Kalyani Mathivanan v K V Jeyaraj, (2015)

6 SCC 363, the relevant paragraphs being:

'20. We have heard the learned counsel for the parties and the issues that arise for our con- sideration are:

(i) whether the UGC Regulations, 2010 are mandatory in nature; and

(ii) whether in the event of conflict between the University Act, the regulations framed there- under and the UGC Regulations, 2010, the pro- Patna High Court CWJC No.8089 of 2020 dt.18-02-2021

visions of the UGC Regulations, 2010 would prevail or not; and

(iii) whether the post of Vice-Chancellor of a university is to be considered as part of the teaching staff.

xxx

31. The Annexure to the UGC Regulations, 2010 prescribes the minimum qualifications for appointment and other service conditions of uni- versity and college teachers, librarians, Direc- tors of Physical Education and Sports.

xxx

56. We have noticed and held that the UGC Regulations, 2010 are not applicable to the uni- versities, colleges and other higher educational institutions coming under the purview of the State Legislature unless the State Government wish to adopt and implement the Scheme subject to the terms and conditions therein. In this con- nection, one may refer to Para 8(p)(v) of Appen- dix I dated 31-12-2008 and Regulation 7.4.0 of the UGC Regulations, 2010.

xxx 62.3. The UGC Regulations, 2010 are manda- tory to teachers and other academic staff in all the Central universities and colleges thereunder and the institutions deemed to be universities whose maintenance expenditure is met by UGC. 62.4. The UGC Regulations, 2010 are direc- tory for the universities, colleges and other higher educational institutions under the purview of the State legislation as the matter has been left to the State Government to adopt and implement the Scheme. Thus, the UGC Regula-

tions, 2010 are partly mandatory and is partly directory.' (emphasis supplied)

11. There is yet another lens from which the matter

can be examined. The petitioner, when (i) she filled up the

examination form; (ii) she gave the examination, and; (iii) the Patna High Court CWJC No.8089 of 2020 dt.18-02-2021

results were declared - at all these points of time is deemed to

have been aware of the fact that the results of the PAT 2017

were valid only for a period of one year. Thus, it is not a case

where the petitioner is being put at a disadvantageous position,

than she was in when the aforementioned sequence of events

transpired.

12. In the present case, the examination was

conducted, and the result declared prior to the date of