Gauhati High Court
Dr Archana Gogoi vs The State Of Assam And 9 Ors on 23 April, 2026
Page No.# 1/33
GAHC010196882021
2026:GAU-AS:5613
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6543/2021
DR ARCHANA GOGOI
W/O MR. AJIT KR. DOWRA, R/O NO. 1 PADUMONI, P.O. AND P.S.
SARUPATHAR, DIST. GOLAGHAT, ASSAM, PIN 785601
VERSUS
THE STATE OF ASSAM AND 9 ORS
REPRESENTED BY ITS COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, EDUCATION (HIGHER) DEPARTMENT, DISPUR, GUWAHATI-6
2:THE DIRECTOR
HIGHER EDUCATION
KAHILIPARA
GUWAHATI-19
3:THE GOVERNING BODY OF SARUPATHAR COLLEGE
REPRESENTED BY ITS PRESIDENT. SARUPATHAR
P.O. AND P.S. SARUPATHAR
DIST. GOLAGHAT
PIN 785601.
4:THE PRINCIPAL
SARUPATHAR COLLEGE
SARUPATHAR
P.O. AND P.S. SRUPATHAR
DIST. GOLAGHAT
PIN 785601.
5:THE UNIVERSITY GRANTS COMMISSION
Page No.# 2/33
REPRESENTED BY ITS SECRETARY
BAHADUR SHAH ZAFAR MARG (ITO)
NEW DELHI
PIN 11000.
6:DR. HASMAT ALI
PRINCIPAL
JURIYA COLLEGE
P.O. JURIYA
DIST. NAGAON
ASSAM
PIN 782124.
7:DR. GANGASWAR KALITA
PRINCIPAL
DALGUMA ANCHALIK COLLEGE
P.O. DALGOMA
DIST. GOALPARA
ASSAM
PIN 783125.
8:DR. JYOTI KAMAL HAZARIKA
PRINCIPAL
TEZPUR COLLEGE
P.O. TEZPUR
DIST. SONITPUR
ASSAM
PIN 784001.
9:DR. SAIFUL ISLAM
ASSTT. PROFESSOR
JURIYA COLLEGE
P.O. JURIA
DIST. NAGAON
ASSAM
PIN 782124.
10:DR. PALLAV JTOI KONWAR
ASSOCIATE PROFESSOR
DEPARTMENT OF ECONOMICS
NAZIRA COLLEGE
Page No.# 3/33
P.O. NZIRA
DIST. SIVASAGAR
PIN 785685
Advocate for the Petitioner : K U AHMED, MS P SARMA,MS N HASAN
Advocate for the Respondent : , SC, HIGHER EDU,SC, UGC
Linked Case : WP(C)/4721/2021
DR. MITALI SARMA
W/O MR. RUPAK KUMAR SARMAH
R/O VILL. AND P.O. CHAPARMUKH
P.S. RAHA
DIST. NAGAON
ASSAM
PIN 782425
VERSUS
THE STATE OF ASSAM AND 10 ORS
REPRESENTED BY ITS COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
EDUCATION (HIGHER) DEPTT.
DISPUR
GUWAHATI 6
2:THE DIRECTOR OF HIGHER EDUCATION
KAHILIPARA
GUWAHATI19
3:THE GOVERNING BODY OF JAGIROAD COLLEGE
REPRESENTED BY ITS PRESIDENT
JAGIROAD
P.O. JAGIROAD
DIST. MORIGAON
PIN 782410
4:THE PRINCIPAL OF JAGIROAD COLLEGE
JAGIROAD
Page No.# 4/33
MORIGAON
5:THE UNIVERSITY GRANTS COMMISSION
REPRESENTED BY ITS SECY.
BAHADUR SHAH ZAFAR MARG (ITO) NEW DELHI
PIN 110002
7:DR. HASMAT ALI
PRINCIPAL
JURIYA COLLEGE
P.O. JURIYA
DIST. NAGAON
ASSAM
PIN 782124
8:GANGASWAR KALITA
PRINCIPAL
DALGUMA ANCHALIK COLLEGE
P.O. DALGOMA
DIST. GOALPARA
ASSAM
PIN 783125
------------
Advocate for : K U AHMED
Advocate for : MR. P R MAHANTA SC
HIGHER EDU appearing for THE STATE OF ASSAM AND 10 ORS
Linked Case : WP(C)/556/2024
DR. TILAK SARMAH
S/O- RITUBARNA SARMAH
R/O- VILL GAMIRIPAL
P.O. AND P.S. GAMIRIPAL
DIST. SONITPUR
ASSAM
PIN- 784180
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY ITS COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM
EDUCATION (HIGHER) DEPARTMENT
DISPUR
Page No.# 5/33
GUWAHATI-6
2:THE DIRECTOR OF HIGHER EDUCATION
KAHILIPARA
GUWAHATI-19
3:THE GOVERNING BODY OF TYAGBIR HEM BARUAH COLLEGE
REPRESENTED BY ITS PRESIDENT
P.O.- JAMUGURIHAT
DIST. SONITPUR
PIN- 784180
4:THE PRINCIPAL OF TYAGBIR HEM BARUAH COLLEGE
JAMUGURIHAT
SONITPUR
ASSAM
5:THE UNIVERSITY GRANTS COMMISSION
REPRESENTED BY ITS SECRETARY
BAHADUR SHAH ZAFAR MARG (ITO)
NEW DELHI
PIN- 110002
————
BEFORE
HON’BLE MR. JUSTICE RAJESH MAZUMDAR
Advocate for the petitioner(s) : Mr K U Ahmed.
Advocate for the respondent(s) : Dr Ashim Chamuah for UGC,
Mr K Gogoi, SC, Higher Education,
Dr P Agarwal for UGC
Date on which judgment was reserved: 12.02.2026
Page No.# 6/33
Date of pronouncement of judgment : 23.04.2026
Whether the pronouncement is of the NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (CAV)
Heard Mr. K.U. Ahmed, learned counsel for the petitioner in all the writ
petitions. Mr. K. Gogoi, learned standing counsel, appears for the Department
of Higher Education in all the writ petitions. Dr. A. Chamuah, learned standing
counsel, appears for the UGC in WP(C) No. 4721/2021 and WP(C) No.
6543/2021, and Dr. P. Agarwal, learned standing counsel, appears for the UGC
in WP (C) No. 556/2024. Mr. S.K. Das, learned counsel, appears for
respondent no.4 in WP(C) No. 4721/2021, and Mr. P. Hazarika, learned
counsel, appears for respondent nos.3 And 4 in WP(C) No. 556/2024.
2. These writ petitions under Article 226 of the Constitution of India have
been preferred by the petitioners being aggrieved by the the condition
incorporated in the orders granting them each regularisation in services
insofar as the orders require the petitioner s to qualify in the NET/SLET/Ph.D.
within 2 years, failing which their services were to be discontinued and till
which time, they would be entitled to get a fixed pay only. Although the
Page No.# 7/33
petitioners have challenged the respective orders passed concerning each of
the petitioners, all the orders are dated 24.5.2018, and are worded
identically, save and except for a difference in the description of the
petitioners and the posts in which they were regularised.
3. It is the common stand of the petitioners that they had acquired the PhD
degree before the orders of regularisation being passed, while the uniform
stand of the respondents in all the petitions is that the doctorate degrees
were obtained in violation of the relevant University Grants Commission
Regulations, and therefore cannot be recognized as valid PhD degrees.
4. The facts relating to each of the petitioners are listed below:
A. WRIT PETITION (CIVIL) No. 6543/2021
The petitioner had qualified the High School Leaving Certificate
Examination in 1987 and had qualified the Higher Secondary examination in
1989. She acquired her Bachelor of Arts Degree in 1992, and she obtained her
Master’s Degree in Arts in 1996.
Pursuant to a selection process conducted by the authorities of
Sarupathar College, in which the petitioner had participated, the petitioner
was offered the post of Lecturer in the said College against a non-sanctioned
post on an honorary basis by the appointment order dated 23.08.1999. The
Page No.# 8/33petitioner accordingly joined on 26.08.1999 and has been serving the College
uninterruptedly to date. When the petitioner wanted to pursue her Ph.D., the
Principal of the College issued a No Objection Certificate releasing her from
College duty to pursue her Ph.D. at Singhania University, Rajasthan.
Accordingly, the petitioner got herself registered provisionally with the
Singhania University for the Session 2009. The petitioner thereafter pursued
her Ph.D. with one Dr. Munirul Hussain as her guide. By the notification dated
31.12.2013, the petitioner was declared eligible for the award of the Degree
of Doctor of Philosophy by the Singhania University. The provisional Degree of
Ph.D. in Education was awarded to the petitioner by the Singhania University
on 24.01.2014.
B. WP(C)/4721/2021
The petitioner in this petition had qualified the High School Leaving
Certificate examination in 1998 and had obtained the Higher
Secondary School Leaving Certificate in 1990. The petitioner acquired her
Bachelor’s degree in 1993, and although she obtained a Master’s in Science
degree in 1997, she appeared for a betterment and qualified the same in
1998. Pursuant to an advertisement issued by the college authorities of the
Jagiroad College, Morigaon, on 3rd of October 2000, the petitioner applied for
the post of lecturer in mathematics, which was a non-sanctioned post even as
Page No.# 9/33
per the advertisement. The petitioner was placed in the second position in
the selection. When the first candidate did not join, the petitioner was offered
appointment as a lecturer in the Mathematics department against a non-
sanctioned post on a consolidated pay. The petitioner accordingly joined on
13.9.2001. She thereafter obtained the permission on the basis of a GB
resolution and a no objection certificate issued by the Principal of the Jagiroad
College, and pursued her M.Phil degree from Vinayaka Mission University,
Tamil Nadu and completed her M. Phil in 2009, where she was placed in the
first class. The petitioner thereafter registered herself for a Ph.D. degree from
the Singhania University, Rajasthan, in 2009 itself and by a notification issued
by the Singhania University on 13.3.2013, the petitioner was declared eligible
for the Award of Degree of Doctor of Philosophy by the Singhania University.
The guide for the petitioner during her Ph.D. was a lecturer in the Department
of Mathematics, N N Saikia College, Titabor, Jorhat.
C. WP(C)/556/2024
The petitioner in this petition had obtained his Bachelor’s degree in Arts
in 1991 and had passed his Master’s degree in Arts in Nepali in the year 1992.
The petitioner had participated in a selection process initiated by the issuance
of an advertisement dated 29.5.1997 by the THB College Jamugurihat, and
being the most meritorious amongst the candidates who participated in the
selection, he was recommended for appointment as a lecturer in the THB
Page No.# 10/33
College Jamugurihat in the department of Nepali. The letter offering
appointment to the petitioner had specified that the post was a non
sanctioned post and the offer was on a consolidated pay per month. Petitioner
accordingly joined his services in the college on 16.7.1997. When two
vacancies in sanctioned posts were available in the college, the petitioner
approached this court by filing WP(C) number 4262/2008 with a prayer for
directions to the respondent authorities to regularize his services against one
of the sanctioned posts. By an order dated 3.12.2008, this Court directed the
Director of Higher Education to decide the matter to his best judgment and
decision, and accordingly, the petition was disposed of. When no action was
taken on the orders passed by the Court, the petitioner preferred a second
writ petition, WPC number 3509/2011, with the same prayer. The said petition
was disposed of by directing the respondent no. 2, that is, the Director of
Higher Education, to decide in accordance with the earlier order dated
3.12.2008 passed by the Court in WPC number 4262/2008.
The petitioner had, in the meantime, registered himself to pursue a
Ph.D. degree from the Singhania University. He was provisionally registered
for the degree on 16.12.2009. The petitioner was awarded the provisional
Doctor of Philosophy degree in Nepali drama by a certificate dated 22nd of
June 2016.
Facts common to all the writ petitions:
Page No.# 11/33
5. In the meantime, the Government of Assam in the Education (Higher)
Department issued an Office Memorandum dated 17-7- 2004, which proposed
the adjustment of service of College teachers working without sanctioned
posts. By Clause 4(a) of the Office Memorandum, it was decided that a vacant
post in a particular department in a grants-in-aid college of Assam may be
allotted in order of seniority to accommodate teachers in the same College,
who are working in some other department without a valid sanctioned post,
provided the respective governing bodies had appointed such teachers by
observing due procedure. The adjustment of the services of the petitioner
under the aforementioned Office Memorandum was initiated by the College
authorities. Pursuant thereto, by the order dated 25.04.2018, the services of
the petitioner, who was working against a non-sanctioned post, were
regularized against the sanctioned vacant post of Assistant Professor in the
department of Economics in the same College.
6. For a ready reference, the order dated 25.04.2018 is quoted herein
below:-
“GOVERNMENT OF ASSAM
OFFICE OF THE DIRECTOR OF HIGHER EDUCATION, ASSAM
KAHILIPARA:::::::::GUWAHATI-19
No. G(B)AC/Post Creation/61/2013/Pt./1247 Dated Kahilipara the 25.04.2018 O R D E R
In compliance of te Govt. O.M. No. B(2)H.97/2003/98 dated 17.07.2004 and as per
approval of Govt. vide letter No. AHE349/2016/152, dated 29.12.2017, No. AHE349/2016/154,
Page No.# 12/33dated 02.02.2018 and No. AHE349/2016/163, dated 08.02.2018, the service of the following
teacher working against non-sanctioned post is hereby regularized against the vacant sanctioned
post of the same college and other department with immediate effect, subject to the following
terms and condition.
Terms and conditions
1. The proposed regularization is governed as per provision made vide OM No. B(2) H.97/2003/98,
dated 17.07.2004.
2. The incumbent concerned will be required to qualify in NET/SLET/Ph.D within 2 (two) years,
otherwise his/her service will be discontinued and till then he/she will be entitled to get fixed
(basic) pay as prescribed only from the date of joining subsequent to this order.
3. The appointment is made subject to receipt of satisfactory Police Verification Report.
4. The appointee concerned will have to submit an undertaking before joining in the college as
prescribed by the Finance (Budget) Department vide its Letter No. BW.3/2003/Pt./11/1, dated
25.01.2005 regarding introduction of “New Pension” Rules alongwith the joining report.
The Post
Name against
of which the Eligibility
Name of
Pay
the Department as per
regularizat provided
College
UGC
teacher ion is
made
Assistant Professor Vacant post
Archana Sarupathar Nil Rs.
Department of of Assistant
21,600/-
Gogoi College, Education Professor in
fixed
the
Sarupathar,
Departme
Golaghat
nt of
Economics
Page No.# 13/33
in the
same
college
In pursuance of the Govt. letter No. AHE.349/2016/163, dated 08.02.2018, the vacant
sanctioned post of Assistant Professor, Department of Economics of the college is utilized in the
Education Department for regularization of service of the aforesaid teacher working against non-
sanctioned post
Sd/- Gitimoni Phukan, ACS
Director, Higher Education, Assam,
Kahilipara::::::Guwahati-19.”
7. The petitioner no. 2 accordingly joined on 25.4.2018, and both the
petitioners number 1 and 3 joined on 26.04.2018. After such joining, the
application of the petitioners for verification of documents related to the PhD
Degree had been forwarded to the Director of Higher Education by the
College. Such applications for verification had to be resorted to by each of the
petitioners, since the order dated 25.04.2018, by which their respective
services had been regularized, quoted their eligibility, as per UGC norms, to be
nil. It is the case of the petitioners that since their eligibility as per UGC had
been shown to be nil in the appointment orders, the impugned condition
available at Serial No. 2 of the terms and conditions in the order dated
25.04.2018 had been incorporated and the petitioners had been given a fixed
pay instead of the UGC recommended pay scale and further there was a
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condition requiring the petitioners to acquire NET/SLET/Ph.D. within a period
of 2 years from the date of joining pursuant to the order dated 25.04.2018.
When the petitioners had not been provided their pay in the UGC
recommended scale, they preferred applications to the Director of Higher
Education, requesting the payment of regular salary as per UGC norms w.e.f.
26.04.2018, i.e., the date of joining as an Assistant Professor in the
Department of Education in their respective colleges. After such an
application, the Office of the Director of Higher Education, Assam, requested
the Principal of the concerned Colleges to submit detailed reports along with
relevant documents to the Directorate.
8. The reports presented by the Principals to the Office of the Director of
Higher Education, Assam, stated that the petitioners had obtained a PhD from
Singhania University. It was further mentioned that other similarly situated
persons who had obtained Ph.D. from Singhania University were allowed to
retire as Associate/Assistant Professors and that the said incumbents had
been allowed to enjoy the benefits which the petitioners had prayed for
through their representations. When no action had been taken by the
respondent authorities to release the pay of the petitioners as per the UGC
norms and fearing adverse action, which could include termination from
services, the petitioners preferred the present writ petitions.
9. In the writ petitions, the petitioners have prayed for directions to be issued
to the respondent authorities to pay regular salary to the petitioners as per
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UGC norms w.e.f. 25/26.04.2018, i.e., the dates when they joined services on
regularization. The petitioners had also brought on record the advertisements
under which they had participated at the initial stage for selection and
appointment to the post of Lecturer in their respective colleges.
10. Responding to the writ petitions, the Director of Higher Education has
filed affidavits-in-opposition resisting the prayers made by the petitioners.
While it is not disputed in the affidavit-in opposition that the petitioners had
been regularized w.e.f. 25/26.04.2018, the prayers made by the petitioners
have been sought to be resisted on the ground that the petitioners had
obtained a PhD Degree as per their own assertions from Singhania University,
Jhunjhunu, Rajasthan, which is outside the State of Assam. Elaborating the
reasons for resisting the prayer of the petitioners, the Director has stated that
the PhD Degree of the petitioners had not been obtained in consonance with
the then prevalent UGC norms and regulations and therefore, as per the
respondents, it cannot be said,
that the petitioners had valid PhD Degrees to entitle them to the benefits of a
regular pay scale as per the UGC norms. In the affidavit in-opposition, it has
also been stated that the appointment of non faculty members of the
Singhania University as Supervisor/Ph.D. guide by the Singhania University
was invalid and contrary to the UGC (Minimum Standard and Procedure for
Award of M. Phil/PhD Degree) Regulations, 2009. It is the stand of the
Page No.# 16/33
respondents in the affidavit that since the appointment of the PhD guides of
the petitioners was invalid and contrary to the relevant Regulations, the PhD
Degrees obtained by the petitioners cannot be accepted as valid as per the
UGC Regulations of 2009. The affidavit-in-opposition also refers to the
clarification issued by the UGC vide DO No. F-10-6/2011 (PS Misc) dated
06.07.2015 to impress that on the face of the aforesaid clarification, the
Universities were not entitled to allocate Supervisors/guides for Ph.D. from
persons who were not faculty members of the University or its affiliated PG
Colleges/Institute.
11. The University Grants Commission had also filed an affidavit in the matter
explaining the manner of appointment of guides/supervisors for PhD
aspirants. The UGC has stated that, as per the Regulations of 2009, the
supervisors or the guides for PhD scholars had to belong to the faculty of the
University under which the PhD course was being pursued. This aspect had
been clarified by the order dated 6.7.2015.
Arguments on behalf of the petitioners:
12. Mr K U Ahmed, learned counsel appearing on behalf of all the petitioners,
has submitted that the petitioners had participated in a
selection process, which was undeniably conducted in accordance with law.
Each of the petitioners had been offered appointment to the post of lecturers
Page No.# 17/33
in the respective colleges as per the decisions taken by the Governing Bodies
in each case. They had accordingly joined their service, and during the course
of service, each of the petitioners had duly intimated the college authorities
regarding their intention to pursue a Ph.D. under the Singhania University,
Rajasthan, and they were also afforded permission by the Principal of the
College. The learned counsel has submitted that none of the parties contests
the authenticity of the Ph.D. qualification obtained by the petitioners, and the
records available before this Court would be evidence enough to substantiate
that the respondent University had duly verified them.
13. The learned counsel has submitted that the only reason for denying
recognition to the Ph.D. qualification obtained by the petitioners was that it
had been obtained under the guidance of a guide, who was not a regular
faculty member of the Singhania University. Addressing this aspect of the
matter, the learned counsel has submitted that the clarification that the guide
for the Ph.D. programme of a candidate had to be mandatorily a faculty of
either the University or of an affiliated college was issued on 06-07-2015. By
that time, the petitioners had already acquired their Ph.D. He submits that in
view of the aforesaid facts, the ground taken by the respondents not to
recognise the Ph.D. degree of the petitioners cannot stand to reason. He has
submitted that the degree of Ph.D. obtained by the petitioners before the
clarification issued by the UGC cannot be affected by the clarification dated
06.07.2015. He has further argued that a clarification issued by notifications
Page No.# 18/33
with regard to the UGC Regulations cannot be given retrospective effect.
Therefore, the said notification could not have any adverse effect on the
doctorate which was acquired before the clarification was published.
14. The second limb of the arguments adopted by the learned counsel is that
the assertion of the petitioners that other similarly situated persons, who had
obtained doctoral degrees under the guidance of guides who were not faculty
members of the University concerned had been given the benefits of regular
pay at a scale recommended under the UGC norms and several of such
persons had also been allowed to serve and thereafter superannuate from
services without questioning their doctoral degrees, have not been countered
by the respondents in the Department of Higher Education. The petitioners
had named some of such candidates in the representation before the Director
of Higher Education as well as in this writ petition; however, the respondent
authorities have failed to respond to such assertion, and in fact, in the report
furnished by the Principals of the Colleges to the Director of Higher Education,
such position stood admitted. The learned counsel submits that even in view
of the right of the petitioners to equal treatment in law under equal
circumstances, the respondents are liable to be directed to ignore the second
condition appearing in the order dated 25.4.2018 and are further liable to be
directed to take into account the Ph.D. degree obtained the petitioners and to
grant them all service benefits arising out of such recognition, including the
benefits of a scale of pay as per the UGC norms and continuity in service. The
Page No.# 19/33
respondents would also remain liable to be directed to refrain from interfering
with the continuous service in the College by relying solely on the impugned
condition given in the order dated 25.4.2018.
15. Mr K Gogoi, learned counsel appearing for the Department of Higher
Education has resisted the prayers made by the petitioners by submitting that
the doctoral degree of the petitioner does not, as it cannot, deserve any
recognition since the petitioners had obtained the degree under circumstances
which did not adhere to the University Grants Commission (Minimum
Standards for award of M.Phil/Ph.D. Degree) Regulations 2009, which stood
clarified by the notification dated 6.7.2015. The learned counsel has submitted
that the requirement that a guide in a Ph.D. programme had to be a member
of the faculty of the University was a condition enshrined in the Regulations of
2009 itself. However, since it was observed that several of the Universities
were not following the said mandate, the UGC had issued the clarification,
making explicit what was implicit, with regard to the Regulations of 2009. He
has submitted that in such a view of the matter, the doctoral degrees obtained
by the petitioners were clearly in violation of the provisions of the Regulations
of 2009. Therefore, the respondents had rightly refused to recognise the
doctoral degree of the petitioner.
16. The learned counsel has submitted that the services of the petitioners
had been regularised in the year 2018, even though they did not possess the
requisite qualifications as required by the UGC norms, and therefore, the
Page No.# 20/33
second condition had been imposed in the order dated 25.4.2018, allowing
the petitioners to obtain either
NET/SLET or Ph.D. within a time period of 2 years. It was further provided
that upon achieving the requisite qualifications, they would be entitled to pay
on a scale mandated by relevant UGC norms. He has submitted that the said
time period was over by 24.4.2020, and the petitioner has attempted to
challenge the said condition only in the year 2021. He has submitted that
there is no illegality when the petitioners have been allowed to draw a salary
at a fixed rate in the absence of a recognised doctoral degree. He has prayed
for rejection of the prayers made by the petitioners through these writ
petitions and has prayed for dismissal of the writ petitions.
17. Dr. A. Chamua and Dr. P Agarwal, learned counsel representing the
University Grants Commission, have, based on the affidavits in opposition filed
in each of the cases, submitted that the doctoral degree of the petitioners had
been obtained in violation of the provisions of the relevant Regulations of
2009. The petitioners have admitted that the persons who had acted as
guides in the quest for the degree were not faculty members of the Singhania
University and therefore, the same are not recognised or valid degrees. He
has submitted that the notification dated 6.7.2015 is clarificatory in nature
and therefore, would have retrospective operation, thus covering the case of
the petitioners also.
Page No.# 21/33
18. I have considered the submissions made by the learned counsels for the
contesting parties, and I have also gone through the different provisions of
law, the relevant Regulations, notifications and clarifications issued by the
University Grants Commission and also different documents annexed to the
records of the case.
ISSUES REQUIRING ADJUDICATION:
19. The crux of the litigation is whether the clarification issued by the UGC on
6.7.2015, i.e. after the petitioners had obtained their respective doctoral
degrees, could adversely affect the said degree. In the event the answer to
the above issue is found in the negative, the next question would arise as to
whether the doctoral degree achieved by the petitioners from the Singhania
University, Rajasthan in the manner as done in the present set of petitions,
fulfil the prerequisites required by the then prelevant Regulations governing
the grant of such degree, insofar as the guide/supervisor is concerned, and
whether the said degree would suffice the cause of the petitioner to demand
eligibility for pay in the scale recommended by the UGC norms and their claim
to be allowed to continue in service.
After the issuance of the clarification dated 6.7.2015, the universally
accepted position is that the guide/supervisor for aspirants to the Ph.D.
degree must be a regular teacher in the university/ affiliated college and using
external supervisors (those not employed at the university/affiliated college)
Page No.# 22/33
constituted a violation of the 2009 Regulations.
DISCUSSIONS:
20. The University Grants Commission (Minimum Standards for award of
M.Phil/Ph.D. Degree) Regulations, 2009, were published in the Official Gazette
of India on 11th June 2009, bringing them into effect from the date of
publication in the Gazette. They would apply to every University established or
incorporated by or under a Central Act, Provincial Act or a State Act, every
Institution including a constituent or an affiliated College recognized by the
Commission, in consultation with the University concerned under clause (1) of
Section 2 of the University Grants Commission Act, 1956, and every Institution
deemed to be a University under section 3 of the said Act. The case of the
petitioners would, without doubt, be governed by the said regulations.
21. The regulations, relevant and relating to the appointment/allotment of
Guide/supervisor for M.Phil/Ph.D aspirants, necessary for adjudication of the
lis are quoted herein below for ready reference:
“ELIGIBILITY CRITERIA FOR M. PHIL./PH.D. SUPERVISOR 6. All
Universities, Institutions, Deemed to be Universities and Colleges/Institutions
of National Importance shall lay down the criteria for the faculty to be
recognized as Research Supervisor both for M.Phil and Ph.D. Programmes.
7. All Universities, Institutions, Deemed to be Universities and
Colleges/Institutions of National Importance shall lay down and decide on
annual basis, a predetermined and manageable number of M.Phil and
doctoral students depending on the number of the available eligible Faculty
Page No.# 23/33
Supervisors. A Supervisor shall not have, at any given point of time, more
than Eight Ph.D Scholars and Five M.Phil. Scholars.
8. The number of seats for M.Phil and Ph.D. shall be decided well in advance
and notified on the University website or advertisement. All Universities,
Institutions, Deemed to be Universities and Colleges/Institutions of National
Importance shall widely advertise the number of available seats for
M.Phil/Ph.D studies and conduct admission on regular basis.
**** **** **** ****
ALLOCATION OF SUPERVISOR
12. The allocation of the supervisor for a selected student shall be decided
by the Department in a formal manner depending on the number of student
per faculty member, the available specialization among the faculty
supervisors, and the research interest of the student as indicated during
interview by the student. The allotment/allocation of supervisor shall not be
left to the individual student or teacher. ”
22. The clarification dated 6.7.2015 is also quoted below for ready
reference:
“It has come to the notice of the UGC that some Universities are hiring the
services of supervisors who do not happen to be regular teachers of the
university or its affiliated PG colleges/Institutes awarding the M.Phil/PhD
degree. This practice is in violation of UGC(Minimum Standards and Procedure
for Award of M.Phil/PhD Degree) Regulations 2009. The following clarification
is, therefore, issued in this regard:
“Universities shall allocate the supervisor from amongst the regular faculty members
Page No.# 24/33in a department or its affiliated PG colleges/Institutes, depending on the number of
students per faculty member, the available specialisation among the faculty
supervisors and the research interest of the student. It is further clarified that any
PhD degree awarded by a University under the supervision of a supervisor who is not
a faculty member of the university or its affiliated PG colleges/Institutes would be in
violation of the UGC Regulations, 2009.”
This may be brought to the notice of the colleges or research institutions affiliated to
your University. Any violation of the regulation of the UGC will be viewed very
seriously by the UGC”
23. The DO dated 6th of July 2015 is undoubtedly in the form of a clarification.
The language adopted is one of clarification. The retrospectivity or otherwise of
a clarification issued by the competent authority has been discussed by the
Apex in several cases. This Court finds it relevant to refer to the following
observations, which have a direct bearing on the facts of the present case:
a) Gelus Ram Sahu & Ors vs. Dr. Surendra Kumar Singh & Ors
reported in (2020) 4 SCC 484. Paragraph Nos. 24 to 26 are reproduced
below:
“24. “Clarificatory” legislation is an exception to the general rule of
presuming prospective application of laws, unless given retrospective
effect either expressly or by necessary implication. In order to attract this
exception, mere mention in the title or in any provision that the legislation
is “clarificatory” would not suffice. Instead, it must substantively be proved
that the law was in fact “clarificatory”, as noted by this Court in Virtual
Page No.# 25/33Soft Systems Ltd. v. CIT : (SCC pp. 687-88, paras 50-51)
“50. It may be noted that the amendment made to Section 271 by the Finance
Act, 2002, only stated that the amended provision would come into force with
effect from 1-4-2003. The statute nowhere stated that the said amendment was
either clarificatory or declaratory. On the contrary, the statute stated that the said
amendment would come into effect on 1-4-2003 and therefore, would apply only
to future periods and not to any period prior to 1-4-2003 or to any assessment
year prior to Assessment Year 2004-2005. It is the well-settled legal position that
an amendment can be considered to be declaratory and clarificatory only if the
statute itself expressly and unequivocally states that it is a declaratory and
clarificatory provision. If there is no such clear statement in the statute itself, the
amendment will not be considered to be merely declaratory or clarificatory.
51. Even if the statute does contain a statement to the effect that the
amendment is declaratory or clarificatory, that is not the end of the matter. The
Court will not regard itself as being bound by the said statement made in the
statute but will proceed to analyse the nature of the amendment and then
conclude whether it is in reality a clarificatory or declaratory provision or whether
it is an amendment which is intended to change the law and which applies to
future periods.”
25. The present case is one where, except for the title, nothing contained
therein indicates that the 2016 AICTE Notification was clarificatory in
nature. The said Notification is framed in a question-answer style and
merely restates what has already been made explicit in the 2010 AICTE
Regulations. There seems to be no intent to alter the position of law, but
instead only to simplify what the AICTE had resolved through its original
regulation. The 2016 AICTE Notification is a response to the doubts put
Page No.# 26/33
forth to AICTE by the public. This is evident from the stand put forth by
AICTE before us in its reply as well as during the course of hearing,
namely, that there is no retrospective alteration in the qualification
prescribed for the post of Principal.
26. Even if the 2016 AICTE Notification was clarificatory, it must be
demonstrated that there was an ambiguity in the criteria for appointment
to the posts of Principal, which needed to be remedied. Clarificatory
notifications are distinct from amendatory notifications, and the former
ought not to be a surreptitious tool of achieving the ends of the latter. If
there exists no ambiguity, there arises no question of making use of a
clarificatory notification. Hence, in the absence of any omission in the
2010 AICTE Regulations, the 2016 AICTE Notification, despite being
generally clarificatory, must be held to have reiterated the existing position
of law.”
23
b) WPIL Ltd., Ghaziabad vs. Commissioner of Central Excise, Meerut,
U.P., reported in (2005) 3 SCC 73. Paragraph 15 of the judgment is
quoted below:
“15. The learned counsel for the appellant is also right in relying upon a
decision of this Court in CCE vs. Wood Craft Products Ltd. In that case,
this Court held that a clarificatory notification would take effect
retrospectively. Such a notification merely clarifies the position and makes
explicit what was implicit. Clarificatory notifications have been issued to
end the dispute between the parties.”
Page No.# 27/33
c) CCE vs. Wood Craft Products Ltd, reported in (1995) 3 SCC 454.
At paragraph 19, the Apex Court held as follows:
This extract is taken from CCE v. Wood Craft Products Ltd., (1995) 3 SCC 454
at page 464
“19. In our opinion, the expression “similar laminated wood” in Heading
No. 44.08 as it stood from the beginning must be construed to include
within it block boards of all kinds so that the amendment in Chapter Note
5 w.e.f. 19-3-1990 and thereafter w.e.f. 1-3-1992 merely clarified and
made explicit that which was implicit in the heading throughout. These
amendments were obviously made to end the dispute raised by the
manufacturers by an express statement. Any further discussion with
reference to the definitions in the ISI Glossary is unnecessary for the
reason already indicated.”
24. In view of the law laid down by the Apex Court, this Court has to proceed
to analyse the nature of the contents of the DO issued on 6.7.2015 by the to
conclude whether it is in reality a clarificatory or declaratory provision or
whether it is an amendment which is intended to change the law as to apply
to future periods. 25. The UGC Regulations of 2009 stated that all
universities, Institutions, deemed to be Universities and Colleges/Institutions
of National Importance shall be eligible for conducting M.Phil. and Ph.D.
Programmes. The eligibility criteria for the faculty to be recognized as
Research Supervisor are the same for M.Phil and Ph.D. Programmes were to
be laid down by the universities, etc. The decision regarding a predetermined
Page No.# 28/33and manageable number of M.Phil and doctoral students, depending on the
number of the available eligible Faculty Supervisors, was to be made on an
annual basis. A Supervisor was not allowed to have at any given point of time
more than eight Ph.D. scholars and Five M.Phil. Scholars. The allocation of the
supervisor for a selected student was to be decided by the Department
formally, depending on the number of student per faculty member, the
available specialization among the faculty supervisors, and the research
interest of the student as indicated during interview by the student. The
allotment/allocation of supervisor could not be left to the individual student or
teacher. These mandates flow from the Regulations of 2009. From a bare
reading of the conditions, it is apparent that the University could allot only a
member of its own faculties or of its affiliated colleges to be a supervisor, and
it had no jurisdiction to allot a faculty of another university or institution as a
supervisor for an aspirant pursuing M.Phil or Ph.D. under it.
26. The reason is simple; no university would be in a position to ascertain the
basic mandatory requirements, such as the number of seats available, the
number of available eligible Faculty Supervisors, the number of students and
scholars being handled by each eligible faculty member and/or the available
specialization among the faculty supervisors of some other
institution/University. The allocation of the supervisor for a selected student
was to be decided by the Department formally, depending on the aforesaid
criteria, along with reference to the research interest of the student as
Page No.# 29/33indicated during interview by the student. The concerned institution for
higher education would only have the information maintained by itself and
not for all institutions offering such a degree. Each university could lay down
the eligibility criteria for the faculty to be recognized as Research Supervisor
both for M.Phil and Ph.D. Programmes and such criteria would apply only to
the members of the faculties of the University itself or its affiliated colleges.
Therefore, there is no doubt in the mind of this court that a concerned
University could have allotted only a member of its own faculty or from its
affiliated colleges as a supervisor for M.Phil and Ph.D. scholars, and the
Regulations of 2009 did not allow person who was not a faculty member of
the institute of higher education to be appointed as supervisors and/or guides.
Any such allotment to persons who were not faculty members as guides or
supervisors would be against the norms of the Regulations of 2009.
Therefore, the UGC or an employer would not be at fault in refusing to accept
such a doctoral degree to be in sufficient compliance with UGC norms.
27. Another aspect of the matter has caught the attention of this Court. The
petitioners in WP(C) 6543/2021 and the petitioner in WP(C) 556/2024 have
annexed the letters by which the respective so-called supervisors were
informed of the proposal submitted by the petitioners regarding registration for
a PhD degree. The so-called supervisor was informed that the candidate had
been registered for a Ph.D. degree and would be governed by the academic
regulations of the university. The thesis topic was also mentioned in the note
Page No.# 30/33
to the aforesaid letter, and the documents required to be submitted by the
candidate had been informed. The letter is obviously not a letter appointing
the addressee as a supervisor for the petitioner concerned. This Court fails to
see how a doctoral degree, without formal approval/allotment of a
supervisor/guide by the University concerned, can be said to be a degree
earned in accordance with the UGC Norms.
28. In view of the conclusions arrived at by this Court, it can be safely held
that the DO dated 6.7.2015 issued by the UGC was a notification clarifying
and making an implicit mandate explicit, namely that the concerned
universities offering Ph.D. degrees could allot only their own faculties as
guides or supervisors Therefore the said notification would have retrospective
operation and cannot be restricted to have prospective effect only.
29. The effect of the Ph.D. not being in accordance with the then prevalent
UGC norms has to be assessed next. The University Grants Commission
(Minimum qualifications for appointment of teachers and other academic staff
in Universities and Colleges and other measures for the maintenance of
standards in higher education) Regulations, 2010 were issued for minimum
qualifications for appointment and other service conditions of University and
College Teachers, Librarians, Directors of Physical Education and Sports for
the maintenance of standards in higher education and revision of pay scales.
As per the said Regulations, namely Regulation 4.4.0 and 4.4.1., a candidate
for the post of Assistant Professor in Arts, Humanities, Sciences, Social
Page No.# 31/33
Sciences, Commerce, Education, Languages, Law, Journalism and Mass
Communication was required to have a good academic record as defined by
the concerned university with at least 55% marks (or an equivalent grade in a
point scale wherever grading system is followed) at the Master’s Degree level
in a relevant subject from an Indian University, or an equivalent degree from
an accredited foreign university. Besides fulfilling the above qualifications, the
candidate must have cleared the National Eligibility Test (NET) conducted by
the UGC, CSIR or a similar test accredited by the UGC, like SLET/SET.
However, 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. This requirement remained unchanged in
the amendment brought in 2016 and the later Regulations of 2018 and
2022.
30. Since the petitioners claim the benefit of pay under the UGC norms, it is
implicit that they must also fulfil the UGC norms. At the time of regularisation
of the petitioners, the Ph.D. held by the petitioners were not in accordance
with UGC norms then prevailing, and this Court does not find any fault with
the requirement incorporated in the orders dated 25.4.2018, requiring the
petitioners to qualify NET/SLET/SET within a given time frame. The necessary
Page No.# 32/33
corollary of the conclusion arrived at by this Court, to the extent that the
qualification of Ph.D. was not obtained as per UGC norms, is that the
petitioners cannot be absolved of the requirement to qualify the
NET/SLET/SET and till the time they do so, the petitioners cannot be said to
be entitled to the benefit of pay under the UGC norms.
31. This now brings the Court to analyse whether the aforesaid situation
would also lead to termination of the services of the petitioners as per the
second condition given in the orders dated 25.4.2018. The specific case of the
petitioners is that several similarly situated persons had been allowed to
continue to serve as Assistant Professors in their respective colleges, some of
them even allowed to retire on attaining the age of superannuation. The
department has not responded to the said assertions, and following the
“doctrine of non-traverse”, this Court is inclined to believe the stand taken by
the petitioners. Though the prayer of the petitioner to be allowed to draw the
pay as per UGC recommended scales is rejected at this stage when the
petitioners have not qualified the NET/SLET/SET, this Court is of the
considered opinion that terminating the services of the petitioners, who have
served the colleges for over 25 years, at this stage, on the ground of absence
of qualifying the NET/SLET/SET, would be too harsh, more so, in view of the
undisputed position that similarly situated incumbents had been allowed to
serve up to the date of their superannuation from service. Accordingly, this
Court clarifies that nothing in this order shall be understood to be an
Page No.# 33/33
indication to require or allow the respondent authorities to terminate the
services of the petitioner without following the due process of law.
32. The writ petition is accordingly disposed of. No costs.
JUDGE
Comparing Assistant
