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1 Writ petition no.4996.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,NAGPUR BENCH, NAGPUR.
1. WRIT PETITION NO. 4996 OF 2012
Neha Anil Bobde (Gadekar)Aged about 31 years.Occu: Contributory Lecturer, PGTD Law,RTMNU, Nagpur.R/o: 53, Laxminagar, Nagpur22Disctrict: Nagpur.
...PETITIONER.
VERSUS
1. University Grants Commission,Through it’s Chairman, Bahadur Shah Zafar Marg, New Delhi 110002.
2. University Grants Commission throughThe Head, NET Bureau, South Campus of Delhi University, Benito Juarez Marg,New Delbi 110021.
.. RESPONDENTS.
Mr. S.V.Purohit, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondents 1 and 2.
2. Writ Petition No. 6006 of 2012
Anita N. Sable,aged about years, Occupation:
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Advocate, R/o: Zingabai Takli,Nagpur.
... PetitionerVersus.
1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg,New Delhi – 110021through its Head.
2. The CoOrdinator,UGCNET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.
.....Respondents.Mr. S. Zia Quazi, Advocates for petitioner.Mr. S.K.Mishra, ASGI for respondent no.1.Mr. P.B.Patil, Advocate for respondent no.2
3. Writ Petition No. 609 of 2013
Himanshu s/o Shankarrao Zaparde,Aged about 29 years, Occ. Service,R/o: At Post Paratwada, Dist. Amravati.
.....Petitioner..versus.
1. University Grants CommissionThrough its’ Chairman, Bahadur ShahZafar Marg, New Delhi – 110002.
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2. University Grants Commissionthrough The Head, NET Bureau,South Campus of Delhi University,Benito Juarez Marg, New Delhi – 110 021.
...Respondents Mr. N.R.Saboo, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondents 1 and 2.
4. Writ Petition No. 983 of 2013
1. Ashvini Anant Kalve,Aged Major, Occu: Service,R/o: 254, Alok, Canal Road,Dharampeth, Nagpur 440 010.
2. Sayyed Tousif Sayyed AtherAged Major, Occu: Service,C/o: Mohammad Rafique, Plot No. 40A,Second Floor, Near Nuri Masjid, RathodLayout, Anant Nagar, Nagpur.
...Petitioners.versus.
1. The University Grants Commission,Through its Chairman,National Educational Testing (Bureau)University of Delhi (South Campus),Benito Jaurez Marg. Delhi.
2. University Grants Commission,National Educational Testing Centre,Through its Coordinator,Rashtra Sant Tukdoji Maharaj NagpurUniversity, Nagpur.
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3. Rashtra Sant Tukdoji Maharaj NagpurUniversity, Nagpur, through its Registrar.
..Respondents.Mr. S.S.Sanyal ,Advocates for petitioner.Mr. S.K.Mishra, ASGI for respondents 1 and 2.
5. Writ Petition No. 1030 of 2013.
Parul w/o Shashank Chaubey,A/o 33 years, Occupation: Lecturer,R/o: 144 Sathe Marg, Dhantoli, Nagpur.
...Petitioner..versus.
1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg,New Delhi110021,through its Head.
2. The Coordinator,UGCNET Centre, Nagpur RashtrasantTukdoji Maharaj NagpurUniversity, Nagpur.
.....Respondents.Ms. Neerja Chaubey, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondent no.1.
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6. Writ Petition No. 1156 of 2013 .
Meena Dattatray Kohok,A/o 47 years, Occupation: Lecturer,R/o: B6 Sita Sankul IIOpposite Aakar Nagar, Katol Road, Nagpur.
...Petitioner..versus.
1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg,New Delhi – 110 021, through its Head.
2. The Coordinator,UGCNET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.
.....RespondentsMs. Neerja Chaubey, Advocate for petitioner.Mr. S.K.Mishra, ASGI for respondent no.1Mr. P.B.Patil, Advocate for respondent no.2
7. Writ Petition No. 1715 of 2013 .
1. Jitendra Waman Jambhule,Aged about 28 years,Resident of Fattepura Ward No.3,Panchsheel Square, Near Veluren Budhavihar, Chandrapur 442 402.
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2. Vinod Wasudeo Dongarwar,Aged about 28 years,Resident of Belanwadi,Post: Nandgaon, Tahsil SindewahiDistrict: Chandrapur 441 223.
3. Kishor Nanaji MahajanAged about 27 years,Resident of at Post Parda, TahsilP.O. Samudrapur, District: Wardha 442 305.
4. Nihar Suresh Dahake,Aged about 31 years,resident of Plot No. 12, Rajendra Nagar,KDK College Road, Nandanwan, Nagpur 440 009.
5. Manohar Bansilal Patil,Aged about 36 years,Resident of C/o Shri Vitthalrao Satpute,Behind Mahadeo Temple, Killa Ward,Ballarpur 442 701.
6. Sachin Tulshiram Badwaik,Aged about 33 years,Resident of Plot No. 8,Kashinagar, Rameshwari Road,Post Bhagwan Nagar, Nagpur 440 027.
....Petitioners..versus.
1. University Grants Commission,Through its Chairman,Bahadur Shah Zafar Marg,New Delhi 110 002.
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2. University Grants Commission,Through the Head, NET Bureau,South Campus of Delhi University,Benito Juarez Marg, New Delhi 110 021.
...Respondents.Mr. A.A.Naik, Advocate for the petitioners.Mr. S.K.Mishra, ASGI for respondents.
8. Writ Petition No. 1716 of 2013
1. Sunil Mahadeo Gabhane,Aged about 26 years,Resident of at Post Sonapur,Post Govindpur, Tahsil Nagbhid,District: Chandrapur 441 221.
2. Nagsen Jaipal Shambharkar,Aged about 27 years,Resident of Gadgaon, Post: Pimpalneri,Tahsil Chimur, District: Chandrapur.
3. Tulsidas Hariman Zade,Aged about 38 years,Resident of at Post Nimgaon,Tahsil Saoli, District: Chandrapur.
4. Chandrashekhar Namdeo Gaurkar,Aged about 31 years,Resident of Tadoba Road, Urjanagar,Kondhi Ward No.5, ChandrapurTahsil and District: Chandrapur.
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5. Avinash Diwakar Bhurase,Aged about 25 years,Resident of At post Sonapur,Tahsil Saoli, District: Chandrapur 441 225.
6. Sachin Bhaurao Bodhane,Aged about 29 years,Resident of C/o: Prakash Aswale, Killaward,
Kunbi Society, Bhadravai, District: Chandrapur.....Petitioners.
.versus.
1. University Grants Commission,Through its Chairman,Bahadur Shah Zafar Marg,New Delhi – 110 002.
2. University Grants Commission,through the Head, NET Bureau,South Campus of Delhi University,Benito Juarez Marg, New Delhi – 110 021.
....Respondents.Mr. A.A.Naik, Advocate for petitioners.Mr. S.K.Mishra, ASGI for respondents.
9. Writ Petition No. 1776 of 2013 .
1. Naval Daulatrao Patil,Age – 30 years. Occu Student,R/o Jutapani, Post: Bijudhawadi,Tq. Dharni, Dist: Amravati.
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2. Nikhil Govardhan Joshi,Age – 30 years., Occu: Education,R/o: Indraprastha Colony,Shegaon Road, Amravati.
3. Yogendra Balkrushna Barabde,Age 33 yrs., Occu Service,R/o – Kumbhargaon,Tq. Anjangaon Surji, Dist. Amravati.
4. Darshana Ratnakar ChaudharyAge – 36 yrs., Occ Service,R/o – V.M.V. Road Near Vitthal Mandir,Amravati, Tq. and Dist. Amravati.
5. Manjusha Sudhir Thakhare,Age 34 years, Occ ServiceR/o Prabhat Colony, Shilangaon Road,Amravati,Tq. And Dist. Amravati.
6. Amit Chandrakant Ronghe,Age – 28 yrs., Occ Service,R/o C/o N.K. Puri, Ashirwad Colony,Shegaon Road, Amravati, Tq. And Dist. Amravati.
7. Suresh Devidas Gawli,Age – 31 yrs., Occ Service,R/o Datta Nagar, Kandli, Paratwada,Dist. Amravati.
8. Pratibha Haridas Kakade,Age – 25 yrs., Occ serviceSarmaspura, Achalpur, Tq. Achalpur,Dist. Amravati.
...Petitioners.
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.versus.
1. University Grants Commission,Through its Secretary, Bahadur ShahJafar Marg, New – Delhi.
2. The Cocoordinator UGCNational Eligibility Test for Junior Fellowship and Eligibility for LectureshipJune 2012.C/o – Office At University of GrantsCommission, New Delhi.
3. National Educational Testing (NET) Bureauthrough it’s Head, South Campus, University ofDelhi, Juarez Marg, New Delhi.
....Respondents.Mr. P.S.Patil, Advocate for the petitioners.Mr.S.K.Mishra, ASGI for respondent no.1.10. Writ Petition No. 1783 of 2013
1. Kavita Shankarrao Vaidya.2. Hargovind Chikhalu Tembhare.
(Both the Petitioners are permanent residents 45, Civil Lines, Nagpur.) ........Petitioners.
.versus.
University Grants Commission, Through its Chairman, Bahadurshaha Zafar Marg, New Delhi 440 002.
......Respondent.
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Mr. P.P.Thakare, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondent.
11. Writ Petition No. 5049 of 2012
Nilofar D/o Zafar Khan,aged about 38 years, Occupation: Advocate,R/o: 204, Samaj Bhushan Society,Ayyappa Nagar, Nagpur.
..... Petitioner. Versus.
1. University Grants Commission,National Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg,New Delhi – 110 021Through its Head.
2. The Coordinator,UGC NET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.
...Respondents.Mr. Z.A.Haq, Advocates for the petitioner.Mr. S.K.Mishra, ASGI for respondent no.1Mr. P.B.Patil, Advocate for respondent no.2.
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12. Writ Petition No. 5069 of 2012
Sayalee Shekhar Surjuse, Aged about 27 years, R/o: 102, Gokul Apartments, 80, Nawab Lane, Gokulpeth Nagpur – 440 010.
.... Petitioner..versus.
1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg, New Delhi 110 021.Through its Head.
2. The CoordinatorUGCNET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.
3. RTM Nagpur University, NagpurThrough its Registrar, NagpurDist. Nagpur.
...Respondents.Ms T.H.Udeshi, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondent no.1Mr. P.V.Thakare, Advocate for respondent no.2Mr. P.B.Patil, Advocate for respondent no.3.
13. Writ Petition No. 5135 of 2012.
1. Ganesh Ramdas Gadekar,R/o: Plot No. 61, Dr. Punjabrao Deshmukh
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Colony, Arvi Road, Wardha.
2. Sanjay Kashinath Sontakke,R/o: Plot No. 16, Mahalaxmi Nagar02Manewada Road, Nagpur 440024.
3. Baliram Manikrao Bhange,R/o: Chichghare Layout, Byepass Road,Umrer, Dist: Nagpur 441203.
4. Sachin Trimbakrao Hunge,R/o: Mangalwari Peth, Station Road,Umrer, Distt. Nagpur – 441 203.
5. Manoj Shankarrao MadaviGurudeo Nagar, Postal Colony,Yavatmal 445002.
6. Yogita w/o Ganesh Gujar,R/o: Gandhi Chowk, Behind Lokmat Office,Yavatmal 445 001.
7. Vasanta Sitaram Wanjari Dekate Chowk Budhwari Peth, Umrer,Dist. Nagpur – 441 203.
8. Sneha Ashok Gajghate,Giradkar Layout, Byepass Road, Umrer,Dist. Nagpur – 441203.
9. Kailash Vitthalrao Bisandre,Aniket College of Social Work Ram Nagar,Wardha.
10. Baburao Namdeorao Khelkar C/o G.S.Kamble, Nagari Bank Colony,
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Wardha.
11. Rupesh Rambhau Kuchewar, Sahakar Nagar, Near Sai Nagar, Ward No. 19, Wardha.
12. Nishant Ashok Chikate, C/o: Dinesh R. Dongre, At Vikram Shila Nagar, Ward No.1, Sindhi (M), Wardha.
13. Mrs. Sujata Suryabhan Gajbhiye, C/o Yuvraj Ramteke Satkar Nagar, Nagpur Road, Bhandara.
....Petitioners..versus.
1. Union of India,Ministry of Human Resource Development,Through its Secretary, Library Avenue Pusa,New Delhi 110 012.
2. University Grants Commissionthrough its ChairmanBahadurshaha Zafar Marg,New Delhi 440002.
....Respondents.Mr. P.P.Thakare, Advocate for the petitioners.Mr. S.K.Mishra, ASGI for respondents 1 and 2.
14. Writ Petition No. 5142 of 2012 .
Anjali Omprakash Kothari
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aged about 26 years, R/o B5 Uday Coop. Housing Society, Nelson Square Chaoni, Nagpur 440013.
...Petitioner..versus.
University Grants Commission National Educational Testing Bureau University of Delhi, South Campus, Benito Jaurez Marg, New Delhi 110021. Through its Head.
...Respondent.Ms T.H.Udeshi, Advocate for the petitioner.Mr. S.K.Mishra, ASGI for respondent.
15. Writ Petition No. 6005 of 2012
1. Krishna Fulchand Meshram
2. Vinodkumar Walmik Gedam
3. Urvil Vinubhai Patel
4. Rajesh Zanaklal Gautam
5. Lina Chhagan Kumbhalwar
6. Rajendrakumar Lalji Nikose
7. Shushma Radheshyam Nagpure
8. Hirwanta Bhayyalal Garade
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9. Rakesh Kisanlal Bambhare
10.Nilkantha Ramchandra Bhendarkar
11.Premlal Dhuranlal Basene(Petitioner nos. 1 to 11 are permanent residents of Gondia, Dist. Gondia. Tathya Tope Nagar Plot No. 11).
12. Nirajsingh Fulchand Yadav
13. Mangesh Bhakruji Meshram(Petitioner nos. 12 and 13 are permanent residents of Nagpur, Dist. Nagpur, Civil Line Nagpur Plot No.1.)
....Petitioners. .versus.
1. Union of India,Ministry of Human ResourceDevelopment, Through its Secretary,Library Avenue Pusa, New Delhi 110 012.
2. University Grants Commission,through its Chairman,Bahadurshaha Zafar Marg, New Delhi 440002.
....Respondents.Mr. P.P.Thakare, Advocate for the petitioners.Mr. S.K.Mishra, ASGI for respondents 1 and 2.
16. Writ Petition No. 6269 of 2012
1. Jyotsna Pandurangi Timande.
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2. Kalyani Hemant Manmode.
3. Nilima Bhaurao Rindhe.
4. Taxshila B. Kamble.
(Petitioner no. 1 to 4 are residents of C/o Nilesh Mahakalkar, 49, New Jagruti Colony, Katol Road, Nagpur).
5. Vikrant Anntram Dhamgaye.
6. Madhukar Sahasram Gomase.
7. Sachin Deodas Jambhulkar
8. Bhagwat Yuvraj Shende(Petitioner nos. 5 to 8 are permanent residents of C/o at Dahegaon, P.O.Mahagaon (Devi) Tah. Mohadi, Dist. Bhandara).
.....Petitioners. .versus.
1. Union of India,Ministry of Human ResourceDevelopment, Through its Secretary,Library Avenue Pusa, New Delhi 110 012.
2. University Grants Commission,through its Chairman,Bahadurshaha Zafar Marg, New Delhi 440002. ....Respondents.
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Mr. P.P.Thakare, Advocate for the petitioners.Mr. S.K.Mishra, ASGI for respondents.
17. Writ Petition No. 5795 of 2012
Mangala Durgadas Bansod aged about 40 years, R/o Swayam Apartments, Rajwada Road, At post Taq Aheri. Dist. Gadchiroli 442705.
.....Petitioner..versus.
1. University Grants CommissionNational Educational Testing BureauUniversity of Delhi, South Campus,Benito Jaurez Marg, New Delhi 110 021Through its Head.
2. The Coordinator,UGCNET Centre, NagpurRashtrasant Tukdoji Maharaj NagpurUniversity, Nagpur.
3. RTM Nagpur University, NagpurThrough its Registrar,Nagpur, Dist. Nagpur.
....Respondents. Ms. T.H.Udeshi, Advocate for petitioner.Mr. S.K.Mishra, Advocate for respondent no.1.Mr. P.B.Patil, Advocate for respondent nos. 2 and 3.
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CORAM: R.C.CHAVAN & PRASANNA B. VARALE,JJ DATE OF RESERVING JUDGMENT : 16.04.2013
DATE OF PRONOUNCEMENT : 29.04.2013 JUDGMENT (PER R.C.CHAVAN, J)
Rule. Rule made returnable forthwith. By consent of the
parties, these petitions were taken up for final disposal at admission
stage.
2. We have heard the learned counsel for the respective
parties.
3. These petitions, by aspiring University Teachers, question
the result of National Eligibility Test conducted by the respondent
University Grants Commission (for short “UGC”) in June 2012 by
prescribing qualifying criteria after the test was conducted. They seek
appropriate writ to declare that change of qualifying criteria reflected in
the Notification dated 19th September, 2012 is arbitrary and illegal and
also seek striking down the authority of the respondent UGC to decide
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such criteria after the examination and before the declaration of result.
4. The facts, which are material for deciding these petitions are as under:
In March, 2012, the UGC issued a Notification announcing
holding of National Eligibility Test on 24th June, 2012. As per the
Notification issued in March, 2012, the minimum marks, which the
candidates were supposed to obtain in papers I, II and III, were to be as
under:
CATEGORY Minimum Marks (%) to be obtained. PAPER I PAPER II PAPER III
GENERAL 40 (40% 40 (40%) 75 (50 %)
OBC (Noncreamy layer)
35 (35%) 35 (35%) 67.5 (45%)rounded off to 68
PH/VH/SC/ST 35 (35%) 35 (35%) 60 (40%)
The petitioners applied for appearing for the test for eligibility for
lectureship. They gave the test conducted on 24th June, 2012.
5. The petitioners claim that they scored more than the
minimum marks prescribed above. However, when the results of the
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examination were announced by the UGC, the petitioners found their
names missing from the list of successful candidates. After the results
were declared on 18th September, 2012, the UGC released the Press
Note stating that in addition to the minimum marks which the candidates
were supposed to obtain individually in three papers, the candidates
were required to obtain aggregate marks of 65% for General Category,
60% for OBC (Noncreamy layer) and 55% for SC/ST/persons with
disabilities. Thereafter, the UGC seems to have published
supplementary results on 12.11.2012, in which too, the petitioners’
names did not figure. Thereafter the dates for next examinations were
announced by the UGC.
6. The petitioners question the action of the UGC on the ground
that it was not open to the UGC to change the qualifying criteria after
the examination was over. The petitioners also state that the
candidates, who had secured less than the prescribed aggregate marks,
were also declared to have passed in the supplementary results, though
similar benefit was not extended to the petitioners. This was possibly
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done by the UGC after considering the recommendations of a Four
Member Committee that in addition to the candidates who secured
prescribed aggregate marks, the candidates, who figured among top
7% of all the candidates who appeared in the NET in the particular
subject, should also be considered eligible and having qualified. It
seems that the candidates who had secured less than the prescribed
aggregate marks but were in the 7% bracket were declared as qualified.
7. According to the UGC, which has filed an affidavit in Writ
Petition No. 4996/2012, which the learned counsel wants to be read in
all other petitions, the UGC in its Notification for June, 2012
Examination, stipulated the minimum marks which the candidates were
required to obtain in 3 papers separately. The Notification also
stipulated that only those candidates, who obtained such minimum
marks, were to be considered for final preparation of the result and the
Notification unmistakably stated that “However, the final qualifying
criteria for Junior Research Fellowship (JRF) and eligibility for
lectureship shall be decided by the UGC before declaration of the result.
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The UGC claimed to have carried out this activity in view of the
stipulation in the Notification. It was submitted that the minimum marks
which the candidates were required to obtain in each paper had to be
distinguished from the qualifying criteria which the UGC was to
separately decide. It was submitted that the petitioners, having clearly
understood the terms and conditions of the examination and having
appeared at the examination without protest, could not question the
declaration of the result as unfair. The UGC explained that it constitutes
a Moderation Committee of the senior academicians for finalizing the
qualifying criteria and the final cutoff is fixed generally before
declaration of the result. It was pointed out that the Committee of senior
academicians met for moderating the result of June, 2012 examination
and recommended that the candidates would be required to obtain
minimum qualifying aggregate percentage of 65%, 60% and 55% in
respect of the three categories of the candidates. The UGC candidly
states that it received some representations and then set up a Four
Member Expert Committee to examine the representations. The
Committee found that uniform high cutoff marks across various
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disciplines was not proper since it noted that the proportion of students
who passed varied hugely from 1% to 30% for various subjects. The
Committee noted that uniform cutoff marks put the candidates in some
subjects to a disadvantage and, therefore, the Committee suggested the
correction whereby candidates, who figured among the top 7% of the
candidates who appeared for the NET in each discipline, would also
qualify subject to their having secured minimum required score in each
of the three papers. Accordingly, the result was moderated and 15178
additional candidates were declared to have qualified on 12.11.2012.
The UGC refuted the allegations about arbitrariness or discrimination.
The UGC contended that in such matters the Courts should leave the
decision to experts who are more familiar with the academic issues and
problems they face rather than the courts generally can be, and,
therefore, sought dismissal of the petitions. The learned counsel for the
UGC submitted that the prayers sought could not be entertained,
particularly in the light of the fact that the petitioners sought to challenge
the decision to qualify 7% of top rankers in each subject without joining
as respondents those who were benefited by this decision.
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8. As rightly pointed out by the learned counsel for the
petitioners, it is not that the petitioners seek that those candidates
should be declared as not qualified. The petitioners seek that similar
benefits could be extended to them by enlarging this scope of
relaxation. Therefore, since nothing to the prejudice of the candidates
who are declared to have qualified subsequently by result dated
12.11.2012 is sought, this objection to the tenability of the petitions on
the ground that those candidates have not been joined, has to be
rejected.
9. This takes us to the crucial question, whether the respondent
UGC was justified in prescribing requirement to obtain 65%, 60% and
55% aggregate marks as qualifying criterion after candidates had
appeared for the examination. The learned counsel for the petitioners
submit that similar petitions had been filed before the High Court of
Kerla and by Judgment dated 17.12.2012 the learned Single Judge of
Kerla High Curt has allowed the petitions and quashed the proceedings
fixing categorywise qualifying criteria for Lectureship eligibility. The
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learned Single Judge declared that all the petitioners, who had obtained
the minimum prescribed marks separately in three papers, had cleared
the NET and directed appropriate follow up action. The learned counsel
for UGC submitted that this Judgment has been subjected to intra court
appeal in Kerla High Court and the result thereof is awaited. He further
submitted that since it is a Judgment by a Single Judge of another High
Court, this Division Bench need not feel itself bound by the said
Judgment. He submitted that conclusions drawn by the Kerla High
Court, in the view of UGC, are not correct and, therefore, this Court may
not toe that line.
10. The learned counsel for the petitioners submitted, mainly
relying on the causation in the Judgment of the Kerla High Court, that
such change of the criteria after the process begins is not permissible.
11. The learned counsel for the UGC, on the other hand, relied
on the number of Judgments to support its contention that once the
candidates take part in the selection process without demur, they would
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not be entitled to challenge the process, if the result of the process is
adverse to them. He submitted that the Notification for examination held
in June, 2012 clearly stipulated that in addition to the minimum marks
which the candidates were supposed to obtain individually in each of
the three papers, the candidates were to be subjected to some
qualifying criteria before declaration of the result. He pointed out that
the Notification, after prescribing minimum marks in each of the three
papers stipulates that, “only such candidates, who obtain the minimum
required marks in each paper, separately, as mentioned above, would
be considered for the final preparation of result. However, the final
qualifying criteria for Junior Research Fellowship and Eligibility for
Lectureship shall be decided by the UGC before declaration of the
result”.
12. Therefore, the learned counsel for the petitioners submitted
that the candidates knew that their obtaining minimum required marks in
each of the three papers separately only enabled them to be considered
for final preparation of the result and that the final qualifying criteria were
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to be determined by the UGC before the declaration of the result.
Therefore, according to the learned counsel, the candidates had
sufficient notice that their obtaining minimum passing marks in each of
the three papers individually did not automatically make them eligible
for Lectureship. The learned counsel for UGC relied upon the Judgment
of the Supreme Court in Om Prakash Shukla vs. Akhilesh Kumar
Shukla and others reported in AIR 1986 Supreme Court, 1043. In that
case the Court was considering the question whether a competitive
examination for recruitment held according to 1950 Rules was
unauthorized as it should have been held in accordance with 1947
Rules as amended by 1969 Rules. The examination itself had been
held in September, 1981. In para no.23 of the Judgment, the Supreme
Court observed that petitioner could not be granted any relief because
he appeared for the examination without any protest and had filed
petition only after he had realized that the would not succeed in the
examination.
13. In Madan Lal and others .vs. State of Jammu and Kashmir
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and others, reported in AIR 1995 Supreme Court, 1088(1), the Supreme
Court was considering the challenge to the process of recruitment of
Munsiffs in Jammu and Kashmir. The main contention of the petitioners
was that vivevoce test was so manipulated by increasing their marks in
vivevoce that only the preferred candidates were permitted to get in the
select list. Following the Judgment in Om Prakash Shukla, the Court
reiterated that the result of an interview test on merits cannot be
successfully challenged by a candidate, who takes a chance to get
selected at the said interview and who ultimately finds himself to be
unsuccessful.
14. A Division Bench of this Court in Sonali Ramkrishna Bayani
vs. State of Maharashtra and others, reported in 2003(Supp.2) Bombay
C.R., 607 took a similar view following the Judgment in Madan Lal. In
Chandra Prakash Tiwari and others vs. Shakuntala Shukla and others,
reported in (2002) 6 Supreme Court Cases, 127 relying on the
Judgments in Om Prakash Shukla and Madan Lal, the Supreme Court
concluded that the law was well settled that in the event the candidate
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appears at the interview and participates therein only because the result
of the interview is not palatable to him, he can not turn around and
subsequently contend that the process of interview was unfair or there
was some lacuna in the process. Similar view has been taken very
recently by a Division Bench of this Court in Swati R. Khinvasara vs.
State of Maharashtra and others, reported in 2012(1) Mh. L.J., 482.
The learned counsel for the UGC, therefore, submitted that the
petitioners, having appeared at the test knowing full well that qualifying
criteria were to be fixed before the declaration of the result, could not
question the criteria subsequently fixed.
15. The learned counsel for the petitioners, on the other hand,
submitted that such change of the criteria after the process has
commenced, has not been approved by the Supreme Court. In our
view, the question as to whether the criteria could be changed after the
process began may not be decisive of the matter. The question here is
about the purpose for which the examination is conducted by the UGC.
It is nobody’s case that purpose of conducting the examination is to
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select the candidates for appointment. The UGC had prescribed
National Eligibility Test in order to have uniformity in the standards of
teaching across the country. The question of validity of the UGC
Regulations about qualifications required of a person to be appointed to
the teaching staff of Universities and Institutions, notified on 19.9.1991,
had been raised by a petitioner before the Delhi High Court. The Delhi
High Court ruled that Regulation was valid and mandatory and Delhi
University was obliged to comply there with. The Delhi University filed
an appeal which came to be decided by the Judgment of the Supreme
Court in University of Delhi vs. Raj Singh and others reported in 1994
Supp. (3) Supreme Court Cases, 516. The Supreme Court noted that
the Regulations which were sought to be challenged had been made in
exercise of power conferred by Section 26 (1)(e) r/w Section 14 of the
UGC Act, 1956. The genesis of the Regulations were then considered
by the Supreme Court in para nos.8 and 9 of the Judgment in the
following words.
“8............................... It was recognized that the
standards of performance varied from University to
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University, and that Universities which were a little more
exacting were less generous with their scores. A way
had to be found to ensure not only that justice was done
but also that it appeared to be done. Thereafter, in
considering an All India Merit Test, the Report said that it
had to be ensured that every citizen aspiring to be a
teacher at the tertiary level, that is, a lecturer, qualified
in terms of a national yardstick. ................. The report,
therefore, recommended “that the UGC should
incorporate the passing of one of the national tests at
least in grade B+ on a seven point scale in its
Regulation laying down the minimum qualifications of
teachers and that this should come into force within two
years.”
“9: .......................... In order to ensure the quality of
new entrants to the teaching profession, the Mehrotra
Committee recommended that all aspirants for the post
of lecturer in a University or college should have passed
a national qualifying examination. This recommendation,
it said, was in line with the recommendation of the
National Commission on TeachersII. Such a test would
have the merit of removing disparities in standards of
examination at the Master’s level between different
Universities. The Mehrotra Committee hoped that by this
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step local influence would be minimised and the
eligibility zone for recruitment would become wider. The
proposed examination was to be a qualifying one in the
sense that it determined only eligibility and not selection.
The Mehrotra Committee recommended the following
minimum qualification for the post of lecturer:
(i) Qualifying at the National Test conducted for the
purpose by the UGC or any other agency approved by
the UGC.
ii) Master’s degree with at least fiftyfive per cent marks
or its equivalent grade and good academic record.
The minimum qualifications mentioned above should not
be relaxed even for candidates possessing M.Phil, Ph.
D. qualification at the time of recruitment.”
16. The Court then noted certain decisions about legislative
power of the State on the subject. The court considered the arguments
advanced and after analysing the Regulation observed as under in para
no.21.
“21........................... The said Regulations do not
impinge upon the power of the University to select its
teachers. The University may still select its lecturers by
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written test and interview or either. Successful
candidates at the basic eligibility test prescribed by the
said Regulations are awarded no marks or ranks and,
therefore, all who have cleared it stand at the same
level. There is, therefore, no element of selection in the
process. The University’s autonomy is not entrenched
upon by the said Regulations.”
17. It may, thus, be seen that the object of the prescribing
National Eligibility Test was to have uniform standard for lecturers to be
appointed across the country and to remove disparity in evaluation while
awarding degrees by various Universities. Thus, what the UGC aimed
at achieving by conducting NET, is to ensure that the candidates, who
apply for lectureship, possess certain minimum qualifications to be
assessed on the basis of their performance at the NET. The question,
therefore, is after having prescribed minimum passing marks for each
subject, what object was the UGC seeking to achieve by prescribing a
qualifying aggregate after the examination was over and before the
results were out. To say that the candidates were aware that UGC could
do so and, therefore, could not challenge what the UGC had done,
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would amount overlooking the very purpose for which National Eligibility
Test was prescribed. In our view, since the object was to prescribe
minimum qualifying standards for the purpose of appointment as
lecturers, nothing prevented the UGC from fixing in the initial Notification
itself the aggregate qualifying marks at the levels fixed by them
subsequently. This would have enabled the candidates to strive and
achieve those percentages. The authority to moderate the result, which
the UGC claims to have exercised, does not seem to have served any
purpose, if the UGC believed that the candidates should have 65%,
60% or 55% of aggregate marks. Fixing such a percentate after viewing
the result could be permitted for shortlisting for say appointments or
admissions. The learned counsel for the UGC relied upon the Judgment
of Supreme Court in Union of India vs. T.Sundararaman and others
reported in AIR 1997 Supreme Court, 2418 on the question of
permissibility of short listing. There could be no doubt that the recruiting
authority could undertake short listing. The UGC is not a recruiting
authority. It was just expected to prescribe uniform standards for the
persons who qualify for appointment as lecturers. Therefore, it is not
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clear as to why the UGC could not prescribe the qualification as to
aggregate marks before the candidates were asked to take the
examination.
18. In Hemani Malhotra vs. High Court of Delhi, reported in AIR
2008 Supreme Court, 2103(1),which was cited at bar, the question was
about prescribing cut off marks for vivavoce after the process of
selection had began. The Court ruled that such prescribing of cut off
marks was not permissible at all after the written test was conducted.
19. In Barot Vijaykumar Balakrishna and others v. Modh
Vinaykumar Dasrathlal and others, reported in AIR 2011 Supreme
Court, 2829, the Supreme Court was considering a case where cut off
marks for vivavoce were not stipulated in the advertisement. After the
written test was held and preparation for holding vivavoce were going
on, it was decided that candidates were required to have minimum
qualifying marks in viva voce as well. The Commission then displayed
this requirement on Notice Board. The candidates were made aware of
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this before going on to the oral test by being made sign of declaration.
In this context, the court held after considering the Judgment in Himani
Malhotra that it was permissible to fix cut off marks for vivavoce and to
notify the candidates called for interview. Though the learned counsel
for the UGC submitted that there was some discord in the two decisions,
we do not see any conflict. In Hemani Malhotra’s case cut off marks in
vivavoce were fixed without informing the candidates before they
appeared for vivavoce, whereas in Barot Vijaykumar Balakrishna the
candidates were made aware of the minimum qualifying marks at
vivevoce before they actually appeared for vivevoce. Both the
Judgments would, thus, support the view that the candidate is required
to be told before he appears for the test as to what he is expected to
score in order to qualify. This has not been done by the UGC in the NET
Examination held in June,2012.
20. After viewing the results, prescribing such an aggregate
percentage was obviously injurious to the candidates who were being
examined only to find out whether they possessed the minimum
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standards for being appointed as lecturers. Since the learned counsel
for the UGC submits that an expert body of the UGC was to fix
qualifying criteria before the declaration of the result, the UGC ought to
have clarified as to what was the purpose which it sought to achieve by
such exercise after the examination and before the declaration of results
if under the act all that it was expected to do is prescribing minimum
qualifying standards. There is absolutely no merit in the arguments that
simply because the UGC had so stipulated, it could do so after the
examination and before declaration of the result and it should be
allowed to get away with this action, which does not stand to reason.
Exercise of moderation of result can be understood, if it is aimed at
mollifying harsh result. In fact, the affidavit filed on behalf of the UGC
shows that in the past when no aggregate qualifying percentage was
fixed, the minimum marks required for passing individual papers had
invariably been relaxed. Even in the examination in June,2012, after
receiving representations and on finding that in some subjects the
candidates did not get 65%, 60% or 55% marks, the UGC permitted
such candidates to qualify if they fell in the top 7% bracket in the
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discipline concerned, provided that they had secured minimum subject
wise marks in each of the three papers. Thus, there was nothing
sacrosanct about criteria of the 65% qualifying marks.
21. The learned counsel for the UGC submitted that this is not a
question which could be gone into by the courts and it is a settled
principle of law that in academic matters, courts should not interfere
with the decision of the experts. While there can be no doubt about the
proposition that ordinarily the court should not exercise the power of
judicial review for substituting its own Judgment for that of academicians
in educational affairs. As rightly pointed out by the learned counsel for
the petitioners, this very question had been raised before the Supreme
Court in Dr. J.P.Kulshrestha and others vs. Chancellor, Allahabad
University and others reported in (1980) 3 Supreme Court Cases, 418
which had been referred to by the learned Single Judge by the Kerla
High Court. The Supreme Court, in the inimitable words of the Hon’ble
Justice Krishna Iyer, spoke thus:
“1...................While legal shibboleths like ”handoff
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universities” and meticulous forensic invigilation of
educational organs may both be wrong, a balanced
approach of leaving universities in their internal
functioning well alone to a large extent, but striking at
illegalities and injustices, if committed by however high
an authority, educational or other, will resolve the
problem raised by counsel before us in this appeal from
a judgment of the Division Bench of the High Court.
“2 Once we recognise the basic yet simple proposition
that no islands of insubordination to the rule of law exist
in our Republic and that discretion to disobey the
mandate of the law does not belong even to university
organs or other authorities, the retreat of the court at
the sight of an academic body, as has happened here,
cannot be approved. On the facts and features of this
case such a balanced exercise of jurisdiction will, if we
may anticipate our ultimate conclusion, result in the
reversal of the appellate judgment and the restoration,
in substantial measure, of the learned Single Judge’s
judgment quashing the selections made by the
university bodies for the posts of Readers in English way
back in 1973.
“17. Rulings of this Court were cited before us to
hammer home the point that the court should not
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substitute its judgment for that of academicians when
the dispute relates to educational affairs. While there is
no absolute ban, it is a rule of prudence that courts
should hesitate to dislodge decisions of academic
bodies. But university organs, for that matter any
authority in our system, is bound by the rule of law and
cannot be a law unto itself. If the Chancellor or any
other authority lesser in level decides an academic
matter or an educational question, the court keeps its
hands off; but where a provision of law has to be read
and understood, it is not fair to keep the court out. In
Govinda Rao case Gajendragadkar, J( as he then was)
struck the right note:
What the High Court should have considered is
whether the appointment made by the Chancellor had
contravened any statutory or binding rule or ordinance
and in doing so, the High Court should have shown due
regard to the opinions expressed by the Board and its
recommendations on which the Chancellor has acted.
(emphasis added).
The later decisions cited before us broadly conform to
the rule of caution sounded in Govinda Rao. But to
respect an authority is not to worship it
unquestioningly since the bhakti cult is inept in the
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critical field of law. In short, while dealing with legal
affairs which have an impact on academic bodies, the
views of educational experts are entitled to great
consideration but not to exclusive wisdom. Moreover,
the present case is so simple that profound doctrines
about academic autonomy have no place here.”
22. Here the question is not of substituting our own wisdom for
that of the academicians. The question is what the academicians
sought to achieve by prescribing aggregate qualifying marks after the
examination was over and before the results were out, when no such
exercise had been undertaken by the UGC for the past as can be seen
from the affidavit filed on behalf of the UGC. The question is whether
the power sought from the 1991 Regulations were exercised for
achieving the object of framing those regulations.
23. At the cost of repetition, it has to be stated that the authority
to moderate the result, cannot be used to prescribe higher qualifying
criteria. There was no question of UGC undertaking any short listing
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and therefore, so long as the candidates secured the minimum
qualifying marks in each of the three papers, it could have declared
them to have qualified. In any case, as can be seen from the relaxation
of requirements of 65%, 60% and 55% of aggregate marks in respect of
the 7% of top notchers in their individual subjects, there is nothing
sacrosanct about percentage of the aggregate marks fixed.
24. In view of this, agreeing with the view taken by the learned
Single Judge of the Kerla High Court, we hold that the Notification laying
down requirement of 65%, 60% and 55% percentage of aggregate
marks at June, 2012 UGC NET Examination is illegal and is
consequently struck down. The UGC shall proceed to declare the result
of the petitioners on the basis of their scores in individual papers with
reference to the minimum marks prescribed for passing those papers.
The petitions are, therefore, allowed in the above terms.
The request of learned counsel for the respondents to stay
the order to enable the University Grant Commission to approach the
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Supreme Court is rejected. However, eight weeks’ time is granted to
declare the results.
JUDGE JUDGE
patle
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