ShahinaJ Ali Alavi v. Aligarh Muslim University, Aligarh and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** ## **WP(C) NO. 17506 OF 2021** ## **PETITIONER/S:** SHAHINAJ ALI ALAVI AGED 35 YEARS D/O. ALI ALAVI, THONGAN HOUSE, KAPPUPARAMBU, THAZHEKKODE, MALAPPURAM DISTRICT. BY ADV K.RAKESH ## **RESPONDENT/S:** 1 ALIGARH MUSLIM UNIVERSITY ALIGARH (UP), UTTERPRADESH, REPRESENTED BY ITS REGISTRAR, PIN - 202 002. 2 VICE CHANCELLOR ALIGARH MUSLIM UNIVERSITY, ALIGARH (UP), UTTERPRADESH, PIN - 202 002. 3 DEAN FACULTY OF SOCIAL SCIENCES, ALIGARH MUSLIM UNIVERSITY, ALIGARH (UP), UTTERPRADESH, PIN - 202 002. 4 UNIVERSITY GRANTS COMMISSION BAHADUR SHAH ZAFAR MARG, NEW DELHI, REPRESENTED BY ITS SECRETARY, PIN - 110 002. 5 NATIONAL COUNCIL FOR TEACHER EDUCATION HANS BHAWAN, WING II, BAHADUE SHAH ZAFAR MARG, NEW DELHI, PIN - 110 002, REPRESENTED BY ITS CHAIRPERSON. BY ADV DR.ABRAHAM P.MEACHINKARA,SC,NCTE ## **OTHER PRESENT:** SMT K A SANJEETHA SC , SRI DR ABRAHAM P MEACHINKARA SC NCTE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 17506 OF 2021** **2** ## **JUDGMENT** The petitioner, an aspirant for being appointed as Assistant Professor in the stream of Education with qualification of MA in English, M.Ed with first class and NET conducted by the UGC in the instant petition laid challenge to advertisement Ext.P4 dated 8.8.2021, whereby the post of Assistant Professor for Education by prescribing the qualification different than the one prescribed by the National Council of Teacher Education has been fixed. 2. The genesis of the aforementioned contention is drawn from the Regulations of National Council of Teacher Education (NCTE) 2014 whereby for the post of Assistant Professor as specified in Appendix 5 only following three qualifications are required. - i. Postgraduate degree with a minimum 55% marks in discipline relevant to the area of specialization - ii. Post graduate degree in Education (M.Ed/M.A Education) with minimum 55% marks. - iii. Any other qualification prescribed by UGC like NET **WP(C) NO. 17506 OF 2021** **3** qualification. 3. However, for the post of Assistant Professor the qualifications are different ie., a Ph.D Degree in Education is also mandatory. The contention of the counsel for the petitioner is that the aforementioned NCTE Regulations of 2014 was amended in 2017 whereby amendment was caused in Appendix - 4 and 13; the conditions of Ph.D was omitted. Appendix -4 would not be applicable in the present case, as it deals with the appointment of Principal and Head of the Departments. After C (ii), though Ph.D degree in Education with subject specialization was omitted, a note was inserted that a candidate should have cleared NET conducted by the UGC and provided candidates, who are, or have been awarded Ph.D degree in Education in accordance with the UGC Regulation 2009, shall be exempted from the requirement of the clearing of NET. As per UGC Regulations 2018, proviso added to regulation1.1, thereto, it is clear that where no such norms and standards have been laid down by any regulatory authority (ie., the NCTE in the instant case), UGC Regulations shall be applicable till such time as any **WP(C) NO. 17506 OF 2021** **4** norms or standards are prescribed by the appropriate regulatory authority. 4. Respondent University, thus cannot deviate from the norms and regulations laid down by the regulatory body ie., NCTE and were required to fix the qualification strictly in accordance with NCTE Regulations and not by any other regulation ie., the UGC Regulation as has been done in the instant case. Petitioner since did not have Ph.D, could not apply by last date ie., 24.8.2021 as the advertisement was caused on 9.8.2021. Writ petition has been filed on 26.8.2021 though the interview for the posts scheduled to be held on 2.9.2021. 5. Prima facie, this Court found some force and at this stage learned counsel representing for Aligarh Muslim University opposed the aforementioned prayer by placing on record NCTE 2014 Regulations as well as 2018 Regulations promulgated by UGC whereby from the effective date ie., 1.7.2021 a minimum qualification of Ph.D Degree at the entry level for the post of Assistant Professor is mandatory. It is settled law that the University can always fix a higher qualification than the one **WP(C) NO. 17506 OF 2021** **5** prescribed by the regulatory authority. In support of the aforementioned contentions, judgment of this Court in _**Biju R.I and Ors v. University of Kerala and Ors. rendered in Writ Appeal No. 2647 of 2007 and connected cases**_ has been relied wherein the ratio with regard to fixing of the additional/higher qualification over and above the qualification prescribed by the University Grants Commission was upheld. Even the High Court of Madhya Pradesh in the judgments dated 7.5.2010 in W.P. No.5817/2010 ( _**Smriti Patel v. State of Madhya Pradesh and Others)**_ and 5654/2010 _**(Poonam Patidar v. State of Madhya Pradesh and Others)**_ also upheld the decision of the University in fixing the higher qualification than the one prescribed by the regulatory authority. Petitioner has no locus standi to challenge the same, in the absence of any application and urge this Court for dismissal of the writ petition. 6. Learned counsel appearing for the NCTE submitted that though the NCTE Regulation do not insist for qualification of Ph.D for the post of Assistant Professor at the entry level, the University at its own level can always fix the qualifications as **WP(C) NO. 17506 OF 2021** **6** prescribed by the UGC. He also supported the case of the petitioner in respect of the proviso to 1.1 of 2018 Regulations envisaging the applicability of norms laid down by the regulatory body. The norms laid down by the UGC would be only applicable in the absence of any norms by the regulatory body. 7. I have heard the learned counsel for the parties and appraised the paper book. As submitted in the first blush, this Court was of a prima facie view that the action of the University in insisting for a Ph.D degree for filling up the post of Assistant Professor in Education at the entry level was not justified but on going through the ratio decidendi in the judgments cited (supra), it is the prerogative of the University to fix the higher qualification than the one prescribed by the regulatory body. 8. No doubt, NCTE is a regulatory body in respect of issue relating to education and in the instant case, the posts so advertised are also related to education. Petitioner in my view, in the absence of submission of any application after the promulgation of the advertisement or having not exercised any his right much earlier ie., before the expiry of the date of **WP(C) NO. 17506 OF 2021** **7** ## submission of the application cannot raise this argument. ## 9. Proviso to 2018 regulation 1.1 reads thus: 1.1 For the purposes of direct recruitment to teaching posts in discipline relating to university and collegiate education, interalia in the fields of health, medicine, special education, agriculture, veterinary and allied fields, technical education, teacher education, norms or standards laid down by authorities established by the relevant Act of Parliament under Article 246 of the Constitution for the purpose of co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions, shall prevail i.Provided that where no such norms and standards have been laid down by any regulatory authority, UGC Regulations herein shall be applicable till such time as any norms or standards are prescribed by the appropriate regulatory authority.” No doubt, the aforementioned proviso prescribes the applicability of the norms laid down by the regulatory body and in the absence thereof, applicability by the UGC, but it does not take away the right of the University in any manner for fixing the higher qualification ie., Ph.D, particularly when after deleting the qualification of Ph.D in Appendix – 4 meant for the filling up the post of Principal/HoD at the entry level, insistence of NET was not mandatory provided the candidate is a holder of Ph.D Degree in accordance with the UGC. For the sake of brevity, the amendment caused in the NCTE regulations in 2017 is extracted herein below: **WP(C) NO. 17506 OF 2021** **8** **==> picture [243 x 41] intentionally omitted <==** F. No.51-1/2015/NCTE (N&S) – In exercise of the powers conferred by sub-section (2) of section 32 of the National Council for Teacher Education Act, 1993 (73 of 1993), the National Council for Teacher Education hereby marks the following regulations further to amend the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014, namely. 1. xxxxx 2. In the National Council for Teacher Education (Recognition Norms and Procedure) Regulations 2014 (hereafter referred to as the said regulation), in Appendixes 1, 2, 4, 6, 7, 8, 11, 12 and 13, in paragraph 4, the following paragraph shall be inserted namely:- xxxxxx xxxxxx 8 In the said regulations in Appendix -4 in paragraph 5 in sub paragraph 5.2 - a. after C (ii) and between 'Desirable' the following Note shall be inserted namely:- Note-'Besides fulfilling the above qualification the candidate shall have cleared the National Eligibility Test (NET) conducted by University Grants Commission. Provided candidates, who are, or have been awarded Ph.D degree in Education in accordance with the University Grants Commission (Minimum Standard and Procedure for Award of Ph.D Degree) Regulation 2009, shall be exempted from the requirement of the clearing of NET for appointment as Assistant Professor or equivalent position in Universities or college or institutions.' b. after C (ii), the entry 'Desirable Ph.D degree in Education with subject specialization' shall be omitted. 10. UGC Regulation 3.10 of 18.7.2018 provided that the Ph.D Degree shall be a mandatory qualification for direct **WP(C) NO. 17506 OF 2021** **9** recruitment to the post of Assistant Professor in Universities with effect from 1.7.2021. The same reads thus: - 3.10. The Ph.D Degree shall be a mandatory qualification for direct recruitment to the post of Assistant Professor in Universities with effect from 1.7.2021. The law with regard to fixing of a higher qualification is no longer res integra in view of the judgment cited (supra) where the action of the University in insisting for higher qualification than the one prescribed by the UGC and in the instant case the NCTE was upheld. As an upshot of my findings, I do not find any merit in the contention of the petitioner. Writ petition sans merit and is accordingly dismissed. ## **Sd/-** sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 17506 OF 2021** **10** ## **APPENDIX OF WP(C) 17506/2021** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE CERTIFICATE OF THE PETITIONER IN M.A.(ENGLISH) ISSUED BY THE INDIRA GANDHI NATIONAL OPEN UNIVERSITY DATED 08.08.2013. - Exhibit P2 TRUE COPY OF THE CERTIFICATE OF THE PETITIONER IN M.ED. WITH FIRST CLASS ISSUED BY THE UNIVERSITY OF CALICUT DATED 22.08.2012. - Exhibit P3 TRUE COPY OF THE CERTIFICATE OF THE PETITIONER IN NET CONDUCTED BY THE UGC, DATED 17.06.2011. - Exhibit P4 TRUE COPY OF THE LOCAL ADVERTISEMENT NO.05/2021 PUBLISHED BY THE 3RD RESPONDENT DATED 08.08.2021. - Exhibit P5 TRUE COPY OF THE GAZETTE NOTIFICATION WITH F NO.51-1/2015/NCTE(N&S) ISSUED BY THE MEMBER SECRETARY OF NCTE DATED 29.07.2017. - Exhibit P6 TRUE COPY OF THE RELEVANT PART 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) 2018 IN NOTIFICATION DATED 18.07.2018. Exhibit P7 TRUE COPY OF THE LOCAL ADVERTISEMENT WITH NO.01/FMSR/2021-22 DATED 16.08.2021 ISSUED BY THE DEAN, FACULTY OF MANAGEMENT STUDIES & RESEARCH.