Kumar Shailender v. University Grants Commission

14. He further submitted that the petitioner in W.P.(C) 7408/2014 completed the diploma in the year 2000 itself and admittedly up to 2010, the AICTE was granting equivalence certificate and in his case, the institution wherefrom he did his diploma was duly accredited by AICTE. He also states that even if the decision rendered by the Kerala High Court in the case of Anand J Illican (supra) is perused carefully, the same would not have the respondent deny to benefit to the petitioner rather reading paragraph No. 29 and 30 of the said decision would support the case of the petitioner. He also places reliance on the decision of High Court of Rajasthan in the case of Madhu Saini v. National University of Health Science[6] to submit that this court in the exercise of power under Article 226 of the Constitution may consider granting the petitioner adequate compensation.

15. I have heard the learned counsel appearing on behalf of the parties and perused the record.

16. Clause 3 (i) and (vi) of UGC notification issued for conducting UGC- NET examination on 24.06.2012 reads as under: “3) CONDITIONS OF ELIGIBILITY: i) Candidates who have secured at least 55% marks (without rounding off) in Master's Degree OR equivalent examination from universities/institutions recognised by UGC in Humanities (including languages) and Social Science, Computer Science & Applications, S.B. C.W.P. No.6233/2021 Electronic Science etc. are eligible for this Test. The Scheduled Caste (SC)/Scheduled Tribe (ST)/Persons with disability (PWD) category candidates who have secured at least 50% marks (without rounding off) in Master's degree or equivalent examination are eligible for this Test. Clause ii) to v)…… vi) Candidates with post-graduate diploma/certificate course(s) or foreign degree/diploma should in their own interest, ascertain the equivalence of their course(s) with Master's degree of recognized Indian universities from Association of Indian Universities (AIU) New Delhi, (www.aiuweh.org)”

17. A plain reading of the conditions of eligibility would clearly show that apart from other requirements, a candidate who has to appear in the examination must qualify Clause 3 (i) which states that the candidate who has secured at least 55% marks (without rounding off) in Master’s degree or equivalent examination from universities/institutions recognized by UGC in Humanities (including languages) and Social Sciences, Computer Science and Applications, Electronic Science etc. are eligible for the concerned test. The language used therein specifically provides that the candidate must have a Master’s degree or equivalent examination from universities/institutions recognized by UGC in different streams. Clause (vi) provides that candidates with post-graduate diploma/certificate courses should in their own interest, ascertain the equivalence of their course with a Master’s degree of recognized Indian Universities from AIU, New Delhi. It is thus seen that the requirement of having a Master’s degree or equivalent examination from universities/institutions recognized by UGC in Humanity and other subjects is a condition precedent for appearing in the examination.

18. So far as the equivalence to examination is concerned, the same has to be determined by AIU. If both the clause are read together, the same would show that either the candidate must have a Master’s degree without any equivalence or if the candidate has any diploma/certificate then equivalence is required to be determined by AIU.

19. Firstly, if the petitioners are not fulfilling the aforesaid conditions, which are unequivocally clear in its terms, they should have challenged the relevant conditions before appearing in the examination. The petitioners did appear in the examination with open eyes that without fulfilling the requirements and later on, a challenge to condition 3(vi) by the petitioners on the ground that AIU is not the competent authority to grant the certificate cannot be countenanced. The petitioners who appeared in the examination without raising any grievance to the terms of the notification are estopped and have acquiesced their right to question them thereafter.

20. Secondly, if the scheme of the UGC Act, 1956 as has been explained to this court, is examined the decision of the UGC to authorize AIU to determine the equivalence aspect cannot be said to be without jurisdiction. AIU has been working since 1925 in the field of higher education. The fact remains that the UGC has assigned the responsibility to AIU to determine the equivalence. The decision so taken by UGC is not under challenge. It is thus seen that the challenge on the ground of competence of AIU to grant the equivalence certificate under the facts of the present case cannot be accepted.

21. A similar issue has been considered by this court in the case of Diksha Lamba (supra). The decision passed by this court in the said case has been affirmed by the division bench of this court and SLP against it was dismissed by the Hon’ble Supreme Court. Paragraph Nos.10 to 12, which record the submissions made by the petitioners in the case of Diksha Lamba (supra) are similar to the submissions which are being made by the learned counsel for the petitioners in the present case. For the sake of clarity, paragraph Nos. 10 to 12 are being reproduced as under: “10. Arguing for the Petitioner, Ms. Gokhale submits that the action of the Respondent No. 1 in treating the Petitioner as ineligible only on the opinion given by the Respondent No. 2 is wholly arbitrary and illegal. She submits that the Respondent No. 2, which is a society registered under the Societies Registration Act, 1860, is merely a private body and its membership is open and voluntary. She, therefore, contends that all the universities in India are not compelled to become members of the Respondent No. 2.

11. The learned counsel for the Petitioner further submits that, since the Respondent No. 2 is neither a regulatory nor statutory body, it does not have the power to accord or certify the equivalence of degrees. She contends that, even otherwise, any restrictions or certifications granted by the Respondent No. 2 are not binding and places reliance on the Respondent No. 2’s letter dated 01.08.2011 to the Petitioner, wherein it categorically stated that it had no objections to the issue of the equivalence of the Subject Degree being resolved by the admission granting university as per their own rules and regulations. She, therefore, contends that the refusal of the Respondent No. 2 to certify the equivalence of degrees is not mandatory or binding in any way on Respondent No. 1 and such a refusal on the part of Respondent No. 2 cannot be a ground to deny the Petitioner any educational/qualification or job opportunities.

12. Ms. Gokhale contends that the Respondent No. 1, which is a statutory body, does not have the power to certify or recognize the equivalence of degrees. There is nothing in the University Grants Commission Act, 1956 (hereinafter referred to as the “UGC Act”) or the notifications issued by the Respondent No. 1 that provides for the equivalence of degrees. However, even if it were to be assumed that Respondent No. 1 has the power to certify or recognize the equivalence of degrees, it cannot delegate such powers to any private body such as the Respondent No. 2”

22. A Coordinate Bench of this court has considered the submissions in paragraph Nos.21 to 25 and rejects the said contention. The Coordinate Bench of this court has relied upon the decision in the case of Manoj Kumar (supra) and Anand J Illickan (supra) and paragraph Nos.21 to 25 of the decision in the case of Diksha Lamba (supra) are reproduced as under: “21. Having heard the learned counsels for the parties and having considered their rival contentions, I find that the Petitioner has basically raised two contentions. The Petitioner's first contention is that, since she has obtained the Subject Degree from the University of Leeds, which is admittedly a University duly accredited and recognized by the Respondent No. 1, the Subject Degree cannot be held as an invalid qualification for appearing in the NET merely because the Respondent No. 2, which is a private society, has opined that it is not equivalent to a corresponding degree from a recognized Indian University.

22. The Petitioner's alternate plea is that, since she had obtained a M.Phil degree from a recognized Indian University, i.e. Jawaharlal Nehru University, she was qualified on the strength of that M.Phil degree, which was a master's degree as per notification dated 01.12.1958 issued by the Respondent No. 1 under Section 22(3) of the UGC Act and was treated as a pre-doctoral level qualification as per the subsequent notification dated 05.07.2014, to appear for the NET.

23. Having given my thoughtful consideration to the rival contentions of the learned counsel for the parties, I am of the considered view that there is merit in the plea raised by the learned counsel for the Respondent No. 1 that the Subject Degree could not be treated as valid qualification for NET, until it was certified by the Respondent No. 2 as equivalent to a corresponding degree from a recognized Indian University. The Eligibility Notification having specifically laid down this condition in Clause 3(vi), the Petitioner cannot contend that the Subject Degree should be treated as valid by ignoring the opinion of the Respondent No. 2, merely because it is a private body. It is a well settled legal position that a condition in the notification is binding on a candidate, who participates in an examination process pursuant to the notification without any demur or protect against the conditions in the notification.

24. In this regard, reference may be made to the observations of the Kerala High Court in the case of University Grants Commission v. Anand J Illickan [WA NO. 847/2015], of the Patna High Court in Manoj Kumar v. Union of India & Ors. [CWJ No. 19107/2015] and of this Court in the case of Stuti Saxena v. University Grants Commission [W.P.(C) 6923/2009], on which reliance has been placed by the learned counsel for the Respondent No. 1, to contend that the Petitioner was bound by the terms and conditions stipulated in the Eligibility Notification, including Clause 3(vi), especially when the Petitioner applied for the NET only pursuant to the said notification.

25. The relevant paragraphs of the decision of the Patna High Court in Manoj Kumar (supra), wherein the Court agreed with the view taken by the Division Bench of the Kerala High Court in Anand J Illickan (supra), are reproduced hereinbelow:- “16. The Division Bench answered the issue, so framed, in paragraph 45, holding that Association of Indian Universities is a body, which is entitled to declare equivalence for appearing in National Eligibility Test (hereinafter referred to as „N.E.T.‟), which is contemplated in the notification issued by the U.G.C.. Such authority to grant equivalence by the A.I.U. is statutorily recognized by the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010. The Division Bench took note of the stand of the A.I.C.T.E. that A.I.C.T.E. accepts the opinion of A.I.U. regarding diploma and degree and, therefore, there was no need to examine the entitlement of A.I.C.T.E. to grant equivalence of postgraduate diploma. xxx

21. The Regulation, as quoted above, and the requirement in the notification for holding U.G.C.- N.E.T., June, 2013, makes it clear that the U.G.C. desired and notified that prospecting candidate must ascertain equivalence of their courses with the Master’s Degree of recognized Universities from A.I.U. In any event, that was the condition notified in the notification of U.G.C.-N.E.T., June, 2013. In my view, the petitioner cannot question the eligibility conditions prescribed in the notification after having participated for the test. In my view, he is estopped from raising any plea against requirement of sub-Clause (vi) of Clause 3 of notification for U.G.C.-N.E.T., June, 2013. I am further of the view that no distinction can be made, for the purpose of determining equivalence of P.G. Diploma qualification with P.G. Degree qualification, on the basis of Institution being own-managed and maintained by the State Government/Union Government or otherwise. The Regulations, governing the field, do not carve out any exception or create such distinction. Submission made on behalf of the petitioner, in this regard, is not tenable.

22. I am in agreement with the view taken by a Division Bench of Kerala High Court in case of Anand J. Illickan (supra), wherein, the status and role of the A.I.U., in the matter of its authority to declare equivalence of PostGraduate Diploma with PostGraduate Degree, has been elaborately dealt. I have no hesitation in recording my conclusion that requirement of declaration by A.I.U., for the purpose of equivalence of P.G. Diploma qualification with P.G. Degree, is statutory in character, since the said requirement has been incorporated in the statutory Regulation framed in exercise of power under Section 26 of the University Grants Commission Act, 1956. Consequently, the P.G. Diploma (P.M.I.R.) qualification of the petitioner cannot be held to be equivalent to P.G. Degree.”

23. The learned counsel appearing on behalf of the UGC is also correct in contending that equivalence is a technical academic matter and it cannot be implied or assumed. He has rightly placed reliance on the decision of the Hon’ble Supreme Court in the case of the Guru Nanakdev University (supra) to substantiate the aforesaid contentions. Paragraph Nos. 15 and 16 of the same are reproduced as under:

24. It is thus seen that in the present case, admittedly all the petitioners are holding diploma/certificates. The diploma/certificates have not been granted any equivalence to a Master’s degree. The master’s degree or equivalence is the condition precedent in the notification for examination in question. All the petitioners lack the said qualification to appear in the examination. It is for this reason, this court at this stage, cannot treat diploma/certificate as equivalent to a Master’s degree on the basis of AICTE accreditation. When the examination was to be conducted, the notification required the equivalence certificate to be granted by AIU. Any certificate granted by AICTE or any accreditation by AICTE was not the eligibility condition in the notification issued for the examination in question. It is for this reason that the submissions made by the learned counsel appearing for the petitioner in W.P.(C) 7408/2014 cannot be accepted. The institutions from which the concerned petitioner has undertaken his diploma/certificate course may have been accredited by AICTE. However, under the notification in question, it is not the condition that any candidate who has obtained a certificate/diploma from an AICTE accredited institution would be eligible to appear in the examination.

25. So far as the decision in the case of Nidhi Dhamija (supra) is concerned, if the facts of the case of Nidhi Dhamija (supra) are examined in the right perspective, the same would indicate that UGC in its notification for the examination therein did not specifically stipulate that the equivalence certificate was to be granted by the AIU. This court in paragraph Nos.10, 11, 16 and 17 has taken into consideration the aforesaid aspect.

26. In paragraph Nos.27 and 31 the aforesaid aspect has been clearly noted and the same are being reproduced as under:

27. In view of the aforesaid, the examination in question has been conducted in the year 2012 and the notification issued for the said examination specifically states that the equivalence will have to be granted by AIU, therefore, the decision in the case of Nidhi Dhamija (supra) would not be of any assistance to the petitioners, as the same is clearly distinguishable on facts.

28. It is be noted that the petitioner, Sunil Sood in W.P.(C) 7408/2014 is also not found to be eligible to appear in the examination and, therefore, he cannot be treated to be UGC-NET qualified. Consequently, his registration in the Ph.D. course is also vitiated. On the basis of the interim order of this court dated 31.10.2014, any research work, he has conducted will not create any right in his favour to claim the conferment of a degree in the said course. If such an approach is adopted, the same would be against the settled principle of law it being that interim orders do not create any rights in favour of any of the parties.

29. The Hon’ble Supreme Court in the case of Orissa Lift Irrigation Corp. Ltd. v. Rabi Sankar Patro & Ors.[7] in paragraph No.25 has held that if there is any infirmity in the degree, the same is basic and fundamental and cannot be wished away. In the instant case, the admission of the petitioners on the basis of UGC-NET qualification, in Ph.D. course by itself is vitiated, therefore, this court cannot issue any direction in favour of the petitioners either to complete the course or to be declared as UGC-NET qualified.

30. In view of the aforesaid, the petitions stand dismissed.

PURUSHAINDRA KUMAR KAURAV, J. MARCH 16, 2023 Priya