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Dr. Indira Devi v/s The State of Assam, represented by Commissioner & Secretary to the Government of Assam, Department of Education (H) & Others

    W.P. (C) No. 2020 of 2008

    Decided On, 10 July 2017

    At, High Court of Gauhati


    For the Petitioner: K.P. Sarma, Senior Advocate, H. Das, R. Bordoloi, Advocates. For the Respondents: R1 to R3, Standing Counsel, Higher Education Department, J. Roy, S. Sarma, R4 & R5, R. Hazarika, Advocates, R6, Standing Counsel, UGC.

Judgment Text

Cav Order:

1. Heard Mr. Kishori Prasad Sarma, learned senior Advocate, assisted by Mr. Hrishikesh Das, learned counsel for the petitioner. Also heard Mr. Ujjal Kr. Goswami, learned standing counsel Higher Education for the respondent Nos. 1 to 3, Mr. Jyotirmoy Roy, learned counsel for the respondent Nos. 4 & 5 and Mr. Ashim Chamuah, learned Standing Counsel UGC for the respondent No. 6.

2. The Governing Body of Kanya Mahavidyalaya, Guwahati, while it was in venture stage, on 05.02.1986 appointed the petitioner as a Lecturer in Philosophy Department of said College. After working for about 11 (eleven) years, the Governing Body of said College on 09.01.1997 released the petitioner from service along with 4 other Lecturers of said college, as they were under qualified for such posts. The petitioner on 23.01.1997 submitted a representation before the Principal-cum-Secretary of said College stating her grievances praying before the said authority to allow her to continue in service in said College. Said authority of the College after considering her said representation, verbally allowed the petitioner to continue in her service in said College from 02.04.1998. In the meanwhile, petitioner in the year 1990 obtained M.Phil Degree and in the year 2004 Ph.D. Degree, both from the Gauhati University. However, by order dated 08.10.2007 the Principal o

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said College served the petitioner with a termination order. On her enquiry, she came to know that on 23.07.2007, 10.09.2007 and 20.09.2007, the State Government in the Higher Education Department informed the authority of said college that the University Grants Commission has prescribed the qualification for appointment of a Lecturer in a Degree College that the incumbent must have 55% minimum marks in respect of general candidates and 50% minimum marks in case of SC/ST reserved candidates in their Master Degree and must be National Eligibility Test/State Level Eligibility Test qualified or having M.Phil/Ph.D. degree and candidates not having such requisite norms and eligibility cannot be considered for the post of Lecturers in any such Degree Colleges. The petitioner contended that with regard to Lecturers of some other Colleges in Assam under Deficit System of Grants-in-Aid, who did not possess the requisite UGC norms, but having M.Phil or Ph.D. Degree beyond their Master Degree were retained in service and their services were approved by various orders issued by the Education Department of the State during the period from 1992-1999 and as she is qualified by obtaining M.Phil and Ph.D. Degree, with 21 years of long service experience as a Lecturer in said Kanya Mahavidyalaya, therefore, she should be reinstated in her service in the post of Lecturer in Philosophy in said college and to provide her all consequential benefits, since the relevant UGC norms as prescribed in the UGC Regulations, 1991 as well as the Ordinance of the Gauhati University, 2000 are not applicable in her case.3. It is further submitted by the petitioner that she preferred an appeal before the Governing Body of the Kanya Mahavidyalaya, which according to had not been considered.4. Hence this Writ Petition by the petitioner for setting aside the Government letters dated 23.07.2007, 10.09.2007 and 20.09.2007 and to quash the order dated 08.10.2007 terminating her service from said Kanya Mahavidyalaya, Guwahati and to reinstate her in service in said college as Lecturer in Philosophy, granting her all consequential benefits.5. On behalf of the petitioner, it is contended that while she was appointed as a Lecturer in the College in February, 1996, the UGC norms was not in force and as such, she was duly appointed in the College in question where she served for 21 long years till her termination by Order dated 08.10.2007. Moreover, she had also obtained M.Phil and Ph.D. Degrees prior to her termination from service and those two Higher Degrees made her eligible to continue as a Lecturer in the said College. In this regard, the petitioners have placed reliance on the Judgments reported in (1981) 3 SCC 528 (B R Ramabhadriah -Vs- Secretary, Food and Agriculture Department, Andhra Pradesh & others), AIR 1993 SC 2592 (Smt. Naseem Bano -Vs- state of U.P. and Others), (2001) 5 SCC 664 (Tandon Brothers -Vs- State of W.B. and Others), (2003) 4 SCC 557 (Canara Bank and Others -Vs- Debasis Das and Others) and (1999) 2 GLT 456 (Saiful Islam -Vs- State of Assam and Others). Relying on the aforesaid decisions, Mr. Sarma, learned senior counsel on behalf of the petitioner submitted that the respondents in their affidavit did not reply the statements made by her and as such that amounts to acceptance of the submission of the petitioner. It is further submitted that the Governing Body of the College while terminating the service of the petitioner by order dated 08.10.2007, she was not given any opportunity of hearing and that as said College at that relevant time was a non deficit college, therefore, the UGC norms for a Lecturer in a degree college were not applicable and therefore, her appointment as Lecturer without 55% in her Master Degree cannot be termed as under-qualified. The petitioner also submitted that services of similarly placed Lecturers not having 55% marks in their Master Degree, were regularised by the State Governments by its Notification issued in September, 2001 that instead of 55% marks in Master Degree, the Government in the Higher Education Department took a decision to regularise the services of such Lecturers in Degree College having 52.5% in their Master Degree appointed in such Colleges prior to August, 1998.6. The Director of Higher Education, Assam in his affidavit on behalf of the State respondents stated that by Communication No. B(2)H.119/92/114 dated 12.11.1997, the State Government in the Higher Education Department gave its concurrence to the permission for temporary affiliation upto 3 (three) years Degree Course part-II Standard to said Kanya Mahavidyalaya to begin with the subjects of English, MIL (Major Indian Language in Assamese, Bengali and Hindi) and NL. Assamese, Political Science, Economics, Education, History and Philosophy for the session 1994 - 1995, subject to fulfillment of the conditions laid down by the University, with the observation that such grant of permission/ affiliation, the Government will not take any financial liability for the increase of the teaching staff in said College and further observed that the State will not take any liability for maintaining the posts of part-time teachers or teachers not having the qualification as prescribed under the norms.7. It is submitted by the State respondents that after said Government concurrence dated 12.11.1997, said Kanya Mahavidyalaya started receiving Ad-hoc Recurring Grants-in-Aid from the State Government and that as the petitioner does not have the requisite 55% marks in her Master Degree as per the norms prescribed by the UGC, the petitioner is not eligible for the post of Lecturer in the Degree College which can also be reflected from the concurrence granted by the Government on 12.11.1997. The State respondents further submitted that the Principal of YWCA Junior College, Guwahati by his letter dated 08.10.2008 clarified that the petitioner is working in his institution as full time Lecturer in a consolidated salary with contribution to her provident fund since 01.08.1995 and as such it is submitted that it is not possible for a Lecturer to work at the same time in two different colleges/institution and therefore, submitted that the claim of the petitioner should be rejected.8. Learned Standing Counsel for the Higher Education Department submitted that the petitioner had only 42.3% in her Master Degree and in that case the Government decision of 2001 considering to regularise the services of the Lecturers having 52.5% is not applicable to the petitioner as she is not entitled to such benefit. It is also placed by the learned standing counsel that the Government concurrence to the permission and affiliation vide communication dated 12.11.1997 granting affiliation to said Kanya Mahavidyalaya upto 3 (three) years Degree Course was very specific that such Government concurrence is not possible when such institutions comprises of teachers who are not qualified and does not have the required norms.9. The respondent Nos. 4 & 5 on behalf of the College filed their affidavit in the matter stating that the authorities in the Higher Education Department vide Communication dated 23.07.2007 informed the Principal of the College that the UGC have prescribed the qualification for appointment of Lecturer in Degree Colleges which provides that the incumbent must be a Master Degree holder with 55% in respect of general candidates and 50% in case of reserved SC/ST candidates with either NET/SLET or M.Phil/Ph.D. Degree and since the petitioner did not possess the required norms of 55% marks in her Master Degree as prescribed by the UGC, she is not eligible for the post of Lecturer in the College. The said respondents also submitted that the Inspector of College vide communication dated 20.09.2007 informed the Principal of said College to adhere to the prescribed UGC norms and to take necessary actions and that pursuant to the said communication of the Higher Education Department, the Governing Body of said Kanya Mahavidyalaya by its resolution No. 1 dated 29.09.2007 unanimously resolved to terminate the petitioner and another Lecturer of the College from their services due to lack of their requisite norms and accordingly, by Order dated 08.10.2007 the authority of said college terminated the service of petitioner from the said college. It is also submitted by the said respondent Nos. 4 & 5 that at the time of termination of service of petitioner from said college in October, 2007; it was not a provincialised college and it was the Governing Body of said college, who was the final authority regarding the administration, management, control, appointment, disciplinary action etc. with regard to the teaching and non-teaching staff of said College.10. Mr. Roy, learned counsel appearing for the respondents submits that there is no requirement for giving any hearing to the petitioner prior to the issuance of termination Order 08.10.2007 since it did not cause any prejudice to her, since at the time of issuance of said termination Oder dated 08.10.2007, the petitioner was already a full time Lecturer in YWCA Junior College for Women Education at Guwahati, where since 01.08.1995, she was receiving regular monthly salaries with contribution towards her provident fund.11. On being enquired, said respondents clarified that as the petitioner did not possess the requisite UGC norms of having 55% in her Master Degree, the authority of said college cannot consider the continuation of her service in said Kanya Mahavidyalaya, Guwahati.12. It has also been brought to the notice of the Court that by order dated 20.01.2014, said Kanya Mahavidyalaya has been brought under provincialisation under the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012. After the said 2011 Act, amended in 2012 has now been declared as un-constitutional by this High Court, the State Government has enacted the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 which have now come into force w.e.f 11.04.2017.13. After considering the Judgments cited by the petitioner and upon hearing the arguments of the parties, the Court found that the Government concurrence dated 12.11.1997 convening the concurrence to the permission and affiliation for starting 3 (three) years Degree Course of said Kanya Mahavidyalaya with the relevant subjects was conditional, subject to the fulfillment of the conditions laid down by the University, with the observation that in the said college there must not be any teachers who are not qualified or without having the prescribed norms and this decision of the State Government dated 12.11.1997 regarding the concurrence for the College in question for a 3 (three) years Degree Course is not under challenge.14. Even to consider the case of the petitioner to give her the benefit of the Government letter dated 24.12.1996 issued by the Higher Education Department, that was communicated by the Director of Higher Education, Assam vide its letter dated 06.09.2001, it is seen from the same that benefit cannot be given to the petitioner on the basis of said decision dated 24.12.1996 of the State Government since the State Government decided that for the Lecturers who were appointed prior to 15.12.1998, for them the UGC norms of having 55% marks in Master Degree were relaxed to 52.5% and above marks in Master Degree with Honours in First degree with good academic record. But in the present case from the petition itself it is reflected that the petitioner in her MA Examination of 1988, secured only 379 marks out of total 800 marks, which is equivalent to 47.37% only and therefore, benefit of such relaxation as per the decision of the State Government dated 24.12.1996, relaxing the UGC norms in the case of the petitioner cannot be considered. Further, the petitioner could not place any relevant materials to the claims of the respondents that since 01.08.1995 she is not a full time Lecturer in the YWCA Junior College for Women Education, Guwahati receiving regular monthly salary with contribution to her provident fund.15. For the reasons above, the prayer made by the petitioner in this petition cannot be considered and this writ petition being devoid of merits, stands dismissed.

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