Writ petition against the Corrigendum by SPSC for amending the Advertisement dismissed by the Court: Hon’ble High Court Of Sikkim

S.B: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE THE HIGH COURT OF SIKKIM : GANGTOK Civil Extra Ordinary Jurisdiction) W.P.No.118 1. Ms. Dechen Ongmu Bhutia D o Lakpa Tshering Bhutia R o Development Area Opp. Rhenock House East Sikkim 737101. 2. Ms. Bindhya Chettri D o Naina Singh Chettri R o Dambu Dara Namchi South Sikkim 736126. 1. Sikkim Public Service Commission….. Petitioners Through the Secretary Government of Sikkim Old West Point School Gangtok East Sikkim. 2. State of Sikkim Through the Secretary Human Resources Development Department Government of Sikkim Tashiling Gangtok East Sikkim. Application under Article 226 227 of the Constitution of India. Mr. A. K. Upadhyaya Senior Advocate with Ms. Rachhitta Rai Advocate for the petitioners. Mr. Bhusan Nepal Advocate for the Sikkim Respondent No. 1 Service Commission Dr. Doma T. Bhutia Additional Advocate General. Mr. S. K. Chettri Government Advocate for Respondent No. 2. W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. JUDGMENTDated: 01.09.2021 Bhaskar Raj Pradhan J. 1. Heard Mr. A.K. Upadhyaya learned Senior Advocate assisted by Ms. Rachhitta Rai learned counsel for the petitioners. Also heard Dr. Doma T. Bhutia learned Additional Advocate General along with Mr. S.K. Chettri learned Government Advocate for the respondent no.2 and Mr. Bhusan Nepal learned counsel for the respondent no.1 SPSC). Perused the writ petition the counter affidavit as well as the rejoinder. The issue in the writ petition lies in a narrow compass. The petitioner is aggrieved by the corrigendum dated 09.11.2017 issued by the SPSC seeking to amend the advertisement dated 13.10.2017 inviting applications from eligible candidates for filling up 100 posts of Assistant Professors under the respondent no.2 through direct recruitment. The advertisement provided the minimum qualification required for each of the post advertised. The minimum educational qualification for the post of Assistant Professor was Masters Degree in respective subject with 55% marks Tribes Differently abled physically and visually) with NENET SET or Ph.D W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. as per UGC Regulation 2009. The advertisement also “The candidates who have been awarded a M.Phil P.hD Degree prior to July 11th 2009 in accordance with the UGC Regulation 2009 are exempted from the requirement of NET SLET SET subject to the fulfilment of the following conditions: a) Ph.D Degree of the candidate awarded in regular mode b) Evaluation of the Ph.D thesis by at least 02(two) external c) Open Ph.D Viva voce of the candidate had been only examiners d) Candidate had published two research papers from his her PhD work out of which at least one must be in a referred journal. e) Candidate has made at least two presentations in Conference Seminars based on his her Ph.D work. Note.: to as above are to be certified by the Vice Chancellor Pro Vice Chancellor Dean Academic Affairs) DeanNo. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. and to allow them to sit in the interview for the post of Assistant Professor. The petitioners submit that they are duly qualified for the said posts. The advertisement dated 13.10.2017 reflected the minimum educational qualification as per the Sikkim Government College Lecturers’ Recruitment Rules 1992 The service rules) as amended by the Sikkim Government College Lecturers’ Recruitment Rules 2011 whereby item 8 in the schedule was substituted with the following: “8. Educational and other Qualification required for Direct Recruitment: i) The minimum requirements of a good academic record 55% marks or an accredited testshall remain the minimum the appointment of Assistant Professors: followed) at level and qualifying Provided however that candidates who are or have been awarded a Ph.D. degree in accordance with the University Grants 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 Professors or equivalent positions ii) A relaxation of 5% may be provided at the physically and graduate and master‟s Tribe Differently abled W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. visually differently abled) categories for the purpose of eligibility and for assessing record during direct good academic recruitment to teaching positions. The eligibility marks of 55% and the relaxation of 5% to the categories mentioned above are permissible based on only the qualifying marks without including any grace marks iii) A relaxation of 5% may be provided from 55% to 50% of marks to the Ph.d. Degree holders who have obtained their Master‟s Degree prior to 19th September 1991. iv) Appointment of Assistant Professors is meant for all Government Colleges and for local candidates only. All vacancies shall be filled up with proper application of 100 point roster system.” ........................................................” 6. Mr. Bhusan Nepal submits that this amendment vide notification dated 02.09.2011 was pursuant University Grant Commission UGC) amending University Grants Commission Regulations 2000 which was amended by UGC(3rd Amendment) Regulation 2009. The said amendment now provided: W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. “NET SLET shall remain the minimum eligibility condition for recruitment and appointment of Lectures in Universities Colleges Institutions. Provided however that candidates who are or have been awarded Ph.D. Degree in compliance of the “University Grants Commission Regulation 2009 shall be exempted from the requirement of the minimum eligibility condition of NET SLET recruitment and appointment of Assistant Professor or in Universities Colleges 8. Mr. A.K. Upadhyaya relied upon the judgment of this in Sourav Kafley vs. Sikkim Public Service Commission1 dated 23.07.2014. The said judgment of this court pertains to a challenge made by the petitioner therein that he could not be penalised for non compliance of the University Grants Commission Regulation 2009 which was not amended at the relevant time. The issue is quite different in the present matter. 9. Dr. Doma T. Bhutia submits that it was for the respondent no.2 to decide what ought to be the minimum educational and other qualifications and the courts cannot interfere in such academic matters. 10. The advertisement the minimum qualification as required by the service rules. It is for the employer to determine the qualification that may be 1 S.B.WP(C) No.113 W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. required for a particular post. The petitioners as candidates applying to the post of Assistant Professor cannot dictate to the employer from whom they seek employment as to what the qualification should be for their employment. The petitioners have neither challenged the service rules nor the advertisement. The only challenge as stated before was to the corrigendum seeking to remove the word „M.Phil‟ from the advertisement. A perusal of the advertisement makes it clear that the word „M.Phil‟ was incorrectly inserted in the advertisement and if it remained there it would be in conflict with the minimum educational qualification as required by the service rules. In such a situation it was incumbent upon the SPSC to have issued the corrigendum to caste out the mistake it had made in the advertisement and correct it which had mislead the petitioners to approach this court. 11. Mr. A.K. Upadhyaya submitted that the respondents could not have changed the “rule of the game” once they had started it. This court is afraid that the submission may not be correct since the corrigendum did not change the rule of the game. The service rules which the petitioners as well as the respondents are bound by provided for the minimum qualification required of the candidates. The advertisement could not have gone against the service W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. rules. As the word „M.Phil‟ appearing in the advertisement went against the grain of the service rules it was incumbent upon the SPSC to have issued the corrigendum. Merely because it did so it cannot be said that they sought to change the rule of the game. 12. As per the pleadings in the writ petition the petitioner no.1 has a B.A. Degree Master’s Degreein education and M.Phil Degree. The petitioner no.2 has B.A. Degree MastersDegree in history and M.Phil Degree as well. They do not plead that they have either qualified in the National Eligibility Test or any accredited State Level Test SLET SET) which is the minimum requirement for the appointment of Assistant Professors. The petitioners instead argue that since they were working on adhoc basis for a fairly long time it was not fair upon the respondents to seek from them their qualification in the NET SLET SET. They also admit that they do not have a Ph.D. Degree in compliance of the University Grants CommissionRegulation 2009. The petitioners did not have the necessary qualification as required. W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. 13. Thus this court is of the considered view that there is no merit in the present writ petition which is accordingly dismissed. With the dismissal of the writ petition the application for stay is rendered infructuous and dismissed accordingly. 14. No order as to costs. Bhaskar Raj Pradhan) Judge Approved for reporting: yes. Internet: yes. 

Summary: The court dismissed the writ petition against the corrigendum issued by SPSC for amendment of the advertisement printed a month ago. The Hon’ble High Court of Sikkim before Hon’ble Mr. Justice Bhaskar Raj Pradhan held such in the matter of Dechen Ongmu Bhutia &amp; Anr. Vs. Sikkim Public Service Commission &amp; Anr.[W.P. (C) No.13 of 2018]. The facts of the case related to the writ petition wherein the petitioner were aggrieved by the corrigendum which was issued by the SPSC to amend the advertisement released earlier for the invitation of applications to fill up 100 posts of Assistant Professors under the Respondent No. 2 via direct recruitment process. The minimum qualification required was Masters Degree with 55% marks in the respective subjects, 5% relaxation for the exceptional categories. The word ‘M.Phil’ was removed by the corrigendum issued a month later. The corrigendum was challenged by the aggrieved petitioners who had an M. Phil Degree. The petitioner pleaded to remove the corrigendum and allow them to sit for the interview for the Assistant Professor’s post. It was submitted by the petitioners that they were duly qualified for the post. As per the UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) (3rd Amendment), Regulation 2009, the candidates who have Ph.D. Degree shall be exempted from the minimum eligibility criteria of NET/SLET for the recruitment purpose. Mr. A.K. Upadhyaya, learned Advocate representing the side of the petitioners, relied on the judgment of Sourav Kafley vs. Sikkim Public Service Commission[S.B.WP(C) No.19 of 2013] and said the matter was quite different in the case. Dr. Doma T. Bhutia, additional Advocate general from respondent no. 2 said “..it was for the respondent no.2 to decide what ought to be the minimum educational and other qualifications and the courts cannot interfere in such academic matters.” According to this, the petitioners have no right to direct and dictate the employer as to what are the required qualifications. If the word ‘M.Phil’ remained inserted in the advertisement then it would have gone against the service rules. Hence, the employers needed to issue the corrigendum to correct the mistake Mr. A.K. Upadhyaya further asserted,”..the respondents could not have changed the “rule of the game” once they had started it. This court is afraid that the submission may not be correct since the corrigendum did not change the rule of the game. The service rules which the petitioners, as well as the respondents, are bound by provided for the minimum qualification required of the candidates. The advertisement could not have gone against the service. As the word ‘M.Phil’ appearing in the advertisement went against the grain of the service rules it was incumbent upon the SPSC to have issued the corrigendum.” Instead of proving the qualification in National Eligibility Test, the petitioners argued for their selection because they have been working for a long time on adhoc basis. Also, the petitioner didn’t have the minimum qualification requirement. The Hon’ble Court found ‘no merit in the present writ petition’, stated that the petitioners did not have the necessary qualification as had been required, and hence, dismissed the writ petition, with the application of stay being rendered infructuous.