HC dismisses batch of writ petitions filed by GMC’s Bio Chemistry deptt Lecturer

Any Ph.D./M.Phil degree awarded on basis of research work in violation of 2009 Regulations invalid holds HC

27/05/2016

JAMMU, May 26: The High Court J&K comprising of Justice Janak Raj Kotwal has dismissed a batch of writ petitions filed by Lecturers of Bio Chemistry department of Govt Medical College Jammu.
This significant judgment was passed after a marathon hearing of the matters for about a month.
Five writ petitions filed by Kapila Raina, Lecturer of Bio Chemistry of GMC Jammu against the State and Dr Rachna Sabherwal were dismissed and one writ petition filed by Dr Rachna Sabherwal, also lecturer of Bio Chemistry department of GMC Jammu was allowed and one dismissed vide this common judgment.
Mr. Abhinav Sharma, Adv. and Mr. Sahib Aggarwal, Adv. appared for petitioner Kapila Raina in SWP Nos. 985/2014, 254/2014, 695/2012, 2442/2013 and 2788/2013 and Mr. Aseem Kumar Sawhney, Advocate had appeared in SWP Nos. 341/2013, 2036/2013, 1161/2014 Mr. P. S. Chandel, Dy. AG appeared for the State, Mr. Pranav Kohli, Adv. for Jaipur National University and Mr. D. C. Raina, Sr. Adv. with Mr. F. A. Natnoo, Adv.appeared for the Public Service Commission.
In this approved for reporting judgment the High Court has observed that both Kapila Raina and Dr Rachna Sabherwal are working as Lecturers in the Department of Biochemistry in the Government Medical College, Jammu.
The first petitioner (Kapila Raina) is a post graduate in Biochemistry. She has been appointed as Lecturer, Biochemistry in the GMC, Jammu vide Government Order No. 332-HME of 2010 dated 14.06.2010. After her appointment as Lecturer and while performing duties as such, she applied to the Jaipur National University, Jaipur (hereinafter the JNU, Jaipur) for admission to Ph.D. programme for undergoing Ph.D. course in Biochemistry. The JNU, Jaipur called her for the interview that was to be held on 04.03.2011 asking her to bring documents with her. The Court observed that First petitioner claims to have got admission and enrolled for Ph.D. programme with the JNU, Jaipur on 15.06.2011. After securing the admission, first petitioner submitted an application dated 06.08.2011 to the Principal of the GMC, Jammu seeking grant of permission for undergoing the Ph.D. course. In the meantime, the second petitioner, who is M.D. in Biochemistry, was also appointed as Lecturer, Biochemistry in the GMC, Jammu in March, 2011, vide Government order No. 171-HME of 2011 dated 11.03.2011. She seems to have complained to the Government against the first petitioner for her pursuing Ph.D. course during the probation period of her service as Lecturer in the GMC, Jammu without obtaining No Objection Certificate (NOC) from the Government. The Administrative Department vide its communication dated 17.08.2011 asked the Principal of the GMC to furnish his complete report in the matter. On the other hand the Principal by his communication dated 18.08.2011 submitted the application of the first petitioner dated 06.08.2011 seeking the NOC to the Administrative Department with his recommendations that her case may be considered on its own merit and eligibility basis. The Principal vide his communication dated 28.09.2011 furnished his response to the communication dated 17.08.2011 of the Administrative Department stating that the first petitioner was appointed as Lecturer vide the Government Order dated 14.06.2011, she is on probation for a period two years and that she has applied for permission to pursue Ph.D. course. The Government (Administrative Department) vide its communication No. ME-Gaz-192/2011 dated 24.11.2011 intimated the Principal in reference to his communication dated 28.09.2011 that 'during the probation period of the doctors/Para Medical Staff the permission for higher studies shall not be granted in their favour'. On 11.01.2012, the Principal vide his No. JMC/ESTT/GD/PF/78 withdrew the lab facility granted by him to the first petitioner with immediate effect. Pursuant to and consequent upon refusal of permission for 'higher studies' to her during her probation period and withdrawal of lab facility, the JNU, Jaipur send a communication dated 15.03.2012 to the first petitioner asking her to submit NOC and Lab Utilization Certificate, under provisions of Ph.D. regulations latest by March end further warning her that in case of failure her admission shall cancel.
Feeling aggrieved by the communication of the Administrative Department dated 24.11.2011(supra), whereby the permission/NOC as sought by her was refused and communication dated 11.01.2012(supra) of the Principal, GMC, Jammu, whereby the lab facility provided to her was withdrawn, the first petitioner has filed SWP No. 695/2012 in this Court. She seeks writ of certiorari quashing both these communications. She also seeks quashing of communication dated 15.03.2012 addressed to her by the JNU, Jaipur. Besides, she seeks writ of mandamus directing the Government (Administrative Department) and the Principal, GMC, Jammu to grant the NOC to her for undergoing Ph.D. in Biochemistry. This Court as interim measure vide order dated 29.03.2012 has stayed both these communications with a direction to the Principal, GMC, Jammu to permit the first petitioner to utilize the lab facility. Ignoring the refusal to grant of permission vide its communication dated 24.11.2011 (supra) as also the pendency of writ petition SWP No. 695/2012 in this regard, the Government (Administrative Department) vide its No. ME-Gaz-309/2011 dated 05.04.2013 accorded such permission in favour of the first petitioner subject to the conditions mentioned therein. Not only that, by a subsequent communication No. ME-Gaz-309/2011 dated 20.09.2013 the Administrative Department gave retrospective effect to this permission from 15.06.2011.
Feeling aggrieved by the grant of permission/NOC vide communication dated 05.04.2013(supra) and giving it retrospective effect vide communication dated 20.09.2013(supra), the second petitioner has filed SWP No. 2036/2013 seeking writ of certiorari quashing both these communications. The Administrative Department and the Principal, GMC (respondents 1 and 2) on one hand and the first petitioner (respondent No. 3) on the other have resisted this writ petition by filing objections. This Court vide order dated 24.09.2013 as interim measure has kept the communication dated 20.09.2013 in abeyance to the extent it gives retrospective effect to the permission dated 05.04.2013.
The matter at the level of the Government (Administrative Department), however, did not come to end by giving the retrospective permission/NOC to the first petitioner. Notwithstanding that matter in this regard was sub judice in SWP No. 2036/2013, the Administrative Department vide its No. ME/Gaz/309/2011 dated 30.12.2013 withdrew the retrospective effect of the permission/NOC by withdrawing communication dated 20.09.2013. This is stated to have been done after re-examining the matter. The first petitioner, however, alleges that this was done under pressure of State Vigilance Commission managed by the second petitioner. Pursuant to and consequent upon this withdrawal, the JNU, Jaipur issued notice dated 26.03.2014 to the first petitioner asking her to show cause as to why her registration in the Ph. D. course from 15.06.2011 be not terminated.
Feeling aggrieved by the withdrawal of the retrospective effect given to the permission/NOC by the Government (Administrative Department) and the notice by the JNU, Jaipur, the first petitioner has filed SWP No. 985/2014 seeking writ of certiorari quashing the communication as well as the notice. In this writ petition, this Court vide order dated 10.06.2014 as interim measure has directed status quo with respect to communication dated 26.03.2014.
It is worthwhile to notice and underline before proceeding ahead as to what brings the two petitioners on crossroads when both of them are equally placed as Lecturers in the same Department of the same Medical College, that is the GMC, Jammu. This is evident from the pleadings and was amply demonstrated at Bar through their submissions by the learned counsel for both the petitioners. The reason is only the self-interest of each of them in future progression in career. The first petitioner has entered service as Lecturer as a non medical person, that is, on the basis of her Master's degree in Biochemistry, whereas the second petitioner has entered the service as a medical person, that is, on the basis of her MD in Biochemistry. Under the Jammu and Kashmir Medical Education (Gazetted) Service Rules, 1979, a Lecturer from non medical side is eligible for promotion to the next higher post of Assistant Professor provided he/she is Ph.D. in Biochemistry. The first petitioner can be promoted as Assistant Professor only after she acquires Ph.D. and if she does not the second petitioner will steal march over her even if she is junior to the former. On the other hand if she acquires Ph. D. degree, her promotion may delay the promotion of second petitioner and there lies the problem.
The first petitioner defends the grant of the permission/NOC to him and assails the earlier refusal in this regard vide communication dated 24.11.2011 of the Administrative Department as also the withdrawal of retrospective effect to the permission granted vide communication dated 20.09.2013 on the ground that no study leave was required to be availed by her in terms of Rule 61 of the J&K Civil Services (Leave) Rules, 1979(for short the Leave Rules) as she had to undergo Ph.D. programme, which is a research programme involving research work only, at the GMC, Jammu under the guidance of the HOD of the Department of Biochemistry of the same College and there is no bar under the Leave Rules to the grant of such a permission or NOC in this regard during the probation period of a Government servant. It is contended that 'in order to complete her Ph.D. programme the petitioner had not to join any regular classes and Ph.D. bearing a research in itself, which could be done by the petitioner in Govt. Medical College, Jammu itself provided the said institution issues a certificate of using lab facility for research work.' It is alleged that the initial refusal to grant of permission/NOC was made by the Administrative Department at the behest of the second petitioner. It is contended also that even the retrospective permission granted at the later stage has been withdrawn vide communication dated 30.12.2013 at the behest of the second petitioner which is bad in law also for the reason that the withdrawal has been made without notice to and hearing the her in violation of the Principles of Natural Justice.
Justice Kotwal further observed in his judgment that the second petitioner assails the grant of permission/NOC to the first petitioner on various grounds. It is contended that no Government servant during probation period of his service can go for higher studies but the first petitioner illegally joined the JNU, Jaipur without any permission/NOC. Likewise, granting permission to use lab facility of GMC, Jammu is illegal for the reason that the Biochemistry laboratory of GMC, which operates under aegis of Jammu University, cannot be used for research work for a programme of JNU, Jaipur. It is contended that illegality has been committed by issuing the permission/NOC during the probationary period. The second petitioner also questions the permissibility and validity of the Ph.D. course undertaken by the first petitioner on the ground that under the UGC norms, the JNU, Jaipur can conduct the Ph.D. in a regular mode at its main campus at Jaipur only and the novel method of undergoing such a course by using the lab of the GMC, Jammu was illegal. On this score also the second petitioner questions the issuance of permission/NOC by the State Government and lab facility by the Principal, GMC Jammu. The grant of lab facility by the Principal to the first petitioner is assailed also on the ground that the University of Jammu has not recognized the lab of the Department of Biochemistry, GMC, Jammu for Ph.D. research.
In regard to permissibility and validity of the Ph.D. course of the nature as perused by her, the clear stand of the first petitioner in her reply in SWP No. 2036/2013 is that under the University Grants Commission (minimum standards and procedure for Award of M. Phil/ Ph.D. degree), Regulations, 2009, (hereinafter to be referred as the Regulations of 2009) any in-service candidate can join Ph.D. while carrying out his research work during discharge of his/her official duties (paragraph 10). Her stand further is that the JNU, Jaipur has been created under Rajasthan Private Universities Act, 2005 and under that Act teachers working in colleges and universities can join research work in Ph.D. course while discharging their duties with their employer and the said candidate has to submit his synopsis and thesis and appear for interview as and when required and is not required to attend the classes regularly (paragraph 13). The clear stand of first petitioner is that she has sought admission within the campus of Jaipur National University and a candidate can undertake Research work while discharging his duties at a place other than that University provided the research facilities are available, where such candidate is discharging his/her duties.
The Court further observed that the issues arising for determination in these writ petitions primarily are:
a. Was it required for the first petitioner to obtain prior permission/NOC from the State Government (Administrative Department) for undergoing aforementioned Ph.D. course?
b. Whether undergoing Ph.D. course in the manner as stated by the first petitioner is permissible and valid under the Regulations of 2009? and
c. Whether the Government (Administrative Department) is bound to grant the permission/NOC and the Principal GMC, Jammu is bound to grant lab facility as sought by the first petitioner?
It needs to be stated that determination of the issues involved in these writ petitions would have been made easy had the Government (Administrative Department), the Principal, GMC, Jammu and the HOD, Biochemistry, GMC Jammu (hereinafter to be referred as respondent No. 1, respondent No. 2 and respondent No. 3 respectively) come forward with their stands better than what has been put forth vide their reply to these writ petitions. The task would have been made easier had the JNU, Jaipur, which has been impleaded as respondent in the petitions filed by the first petitioners, come forward by filing its reply explaining the mode and methodology of the Ph.D. programme allowed by them to the first petitioner for undergoing the Ph.D. course.
.." Issue 'a'
21. Mr. Aseem Sawhney, learned counsel for the second petitioner, would say that under the Service Rules permission or leave cannot be granted to a probationer for undergoing higher studies. Without, however, quoting any rule in this regard, Mr. Sawhney placed reliance on order No. SIC-J/Complaint/39/2010 dated 16.03.2011 passed by State Information Commissioner, J&K in an appeal wherein reference has been made to a reply given by the PIO to the effect that 'every employee prior to proceeding for further studies is required to seek permission from the concerned Department as per Rules provided under Leave Rules, J&K Civil Services Leave Rules, 1979.' Mr. Abhinav Sharma, learned counsel for the first petitioner, on the other hand would say that Service Rules in the State of Jammu and Kashmir do not require any permission to be obtained or granted for undergoing higher or further studies by a Government servant though he will have to apply for study leave if such studies involve his absence from duty. The first petitioner was not required to attend any regular course at JNU, Jaipur so pursuing the Ph.D. course by her did not involve any absence from duty and no permission on that score was required. Learned counsel in addition submitted that Ph.D. is a research course only and not higher studies so on that score also no permission from the State Government was required..."
..."The correct legal position, therefore, is that, whereas no Government servant is required to obtain permission or NOC for pursuing higher or further studies but the Government servant will have to obtain study leave to avoid consequences of absence without leave, if such studies are to be undergone by attending a regular course in or outside the country entailing absence from duty. In this view of the matter plea of the first petitioner that a Ph.D. course is a research work only and not higher studies loses any importance in context of the question involved in these petitions. If the Ph.D. programme involves attending a regular course and absence from duty for the full course or a part of it, the Government servant will have to obtain study leave for that period but no NOC/permission would be required. ..."
.." I may, however, hasten to add that aforementioned is the legal position under General Service Rules. A University, Institution or College registering or granting admission to a Government servant for higher studies or Ph.D. programme, whether that entails absence from duty or not, however, is not barred from laying down a condition of obtaining permission or NOC from the Government or employer of the student/research scholar as is said to have been done by the JNU, Jaipur in this case. It is evident that the JNU, Jaipur has asked the first petitioner to submit the NOC and vide impugned communication dated 26.03.2014 has issued her notice to show cause as to why her registration in Ph.D. be not terminated due to withdrawal of the retrospective effect of the NOC granted to her. In that the JNU, Jaipur has mentioned that 'as per University norms, a candidate pursuing Ph.D. programme necessarily has to hold a valid NOC from the concerned State Government/Institution for entire duration of the Ph.D. course.' The question thus remains whether in the given facts and circumstances the Administrative Department of the first petitioner or the Principal, GMC, Jammu is obliged to issue the NOC to the first petitioner or not? The validity of the programme offered by the JNU, Jaipur to the first petitioner would be an important factor to be taken into consideration in determining this question. ..." the Court observed.
The precise question thus arising is, whether the Ph.D. programme offered by the JNU, Jaipur to the first petitioner allowing her to perform the whole research work outside its campus in a laboratory of GMC, Jammu in the State of Jammu and Kashmir under the guidance of a co-guide, who neither is the faculty member of nor was assigned to the first petitioner by that University subscribes to the standards and procedure provided under the Regulations of 2009?
The Parliament has enacted the University Grants Commission Act, 1956 (for short the UGC Act), as per its preamble, to make provision for the coordination and determination of standards in Universities and for that purpose to establish a University Grants Commission (for short the UGC). The UGC Act applies to all the Universities established or incorporated by or under a Central Act, a Provincial Act or a State Act and any such institution as may be recognized by the UGC in terms of the Regulations made in this behalf under the said Act. Prior to 2009, there was no rule prescribing procedure for admission and award of degrees in Ph.D. and M.Phil courses offered by the Universities and Institutions governed by the UGC Act. In the year 2009, the UGC in exercise of powers conferred by clauses (e) and (g) of sub section (1) of section 26 of UGC Act framed the Regulations of 2009. These Regulations provide for the minimum standards and procedure for admission to and award of Ph.D. and M.Phil degree by the Universities and Institution covered under the UGC Act and working under the control of the UGC. It is admitted ground of both the parties that the JNU, Jaipur has been established under the Rajasthan Private Universities Act, 2005. It is not disputed that the Ph.D./M.Phil programmes offered and conducted by this University must subscribe to the standards and procedure laid down under the Regulation of 2009. As the Regulations of 2009 lay down the minimum standards and procedure for offering and conducting such programmes, it would not be permissible for a university to go below, deviate from or bend these Regulations or allow a procedure which does not subscribe to these Regulations, though it may be possible to do even better than that.
...What is clear from a plain and careful reading of the Regulations of 2009 is that a University, Institution or College offering Ph.D./M.Phil courses will have to recognize and designate its faculty members to act as research supervisors for every department in which such programme is to be offered. The allocation of a supervisor to a research scholar shall be decided by the concerned department of the University, Institution or College which has granted admission for the course and shall not be left to the choice of individual student or the supervisor. Course outside the campus of the said University, if found necessary, is permissible only to the extent of 'course work' of six months and that too in a 'sister department/Institute' of the same University. .."
The Regulations of 2009 do not specifically provide for a co-supervisor/co-guide for a research scholar. Providing a co-supervisor, however, would not be impermissible because, as pointed out above, Regulations of 2009 provide for maintaining the minimum standards so, while it is imperative to provide one supervisor to a research scholar, it may not be wrong if in a case a co-supervisor is also provided. There is no scope for providing or allowing a supervisor or co-supervisor other than the one recognized under Regulation 6 and in no case a faculty member of a University/Institution other than the one which has granted the admission for the course. Voluntary offer by faculty member of a University/Institution to act as supervisor or co-supervisor of a research scholar of another University/Institution or selection of such a supervisor or co-supervisor by the research scholar himself is totally contrary and violative of the Regulations of 2009. Any Ph.D./M.Phil degree awarded on the basis of the research work performed under the guidance of such a supervisor or co-supervisor would be invalid being violation of the Regulations of 2009 the Court held.
The Court further held that Likewise, choosing by a research scholar or allowing him a University, institution or College for performing research work other than the one which has given the admission is contrary to the Regulations of 2009. Off-campus course is not contemplated under the Regulation except to the extent of the 'course work' in a sister departments or institute of the same University under Regulation 13. The Ph.D. programme offered by a University that allows off campus research under the guidance of a person not assigned by that University as supervisor is contrary to the Regulations of 2009 and cannot be held valid. In no case a Ph.D./M.Phil programme that allows entire research work to be performed in a lab of a college or institute falling outside the territorial jurisdiction of the university having offered the programme is permissible under Regulations of 2009. Such a programme would be no less than out sourcing of the programme, which not only dehors the Regulations of 2009 but is illegal also.
..."Be that as it may, it is admitted case of the first petitioner that research work was to be performed/has been performed by her in the Biochemistry lab of the GMC, Jammu under the supervision of Dr. Bhatia as her co-guide. The allocated supervisor, Prof. Verma, is off the scene. Not only that, it has not been stated that six month's 'course work' was performed in the campus of the JNU at Jaipur and leave for that purpose was availed. Such a Ph.D. course does not subscribe to the Regulations of 2009 and cannot be held valid. For undergoing such a course neither the Government is obliged to grant permission/NOC nor the Principal GMC, Jammu is obliged to provide lab facility. Demanding and granting such a permission or facility would amount to acquiescing an invalid act. .." the Court held.
Further the High Court held that the contention of the first petitioner that under the Regulations of 2009 any in-service candidate can join Ph.D. by carrying out his research work while performing his/her official duty as a part time scholar is totally out of context. Part time or full time scholar is not the question involved here. The question involved is whether a research scholar can undergo the course and perform the research work off the campus of the University in which the admission is secured under guidance/supervision of a supervisor not allocated by the said University and even not a member of its faculty. Doing so, however, has been found contrary to and in violation of Regulations, 2009.
Undergoing a Ph.D. course in a manner contrary to and in violation of the Regulations of 2009 is against the larger public interest of maintaining higher standards of education at doctoral level so in a given case any personal interest has to yield to the larger public interest.
For all that said and discussed above, SWP No. 695/2012 and SWP No. 985/2014 filed by the first petitioner, Kapila Raina, are dismissed. SWP No. 2026/2013 filed by Dr. Rachna Sabharwal, the second petitioner, insofar as it relates to order dated 05.04.2013 is allowed. To the extent of order dated 20.09.2013 it has become infructuous as the said order was withdrawn by the Government vide No. ME/Gaz/309/2011 dated 30.12.2013. Interim directions issued from time to time are withdrawn, the Court held. However one writ petition filed by Dr Rachna Sabherwal challening the appointment of Kapila Raina was also dismissed.

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