UGC Regulations 2016 Exempting PhD Holders From NET Qualification Will Apply Retrospectively : Supreme Court

The Supreme Court, on Wednesday, held that the UGC (Minimum Qualifications for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to It) Regulations, 2016 would be applied retrospectively. Relying on a catena of judgments, a Bench comprising Justices U.U. Lalit, S. Ravindra Bhat and Sudhanshu Dhulia reiterated that when an amendment is merely clarificatory in nature it ought to have retrospective application(University of Kerala And Ors. Etc. v. Merlin J.N. And Etc. Etc). "When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events." As per the UGC (Minimum Qualifications for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to It) Regulations, 2000 (UGCR 2000) to be appointed as Lecturer in an university passing National Eligibility Test (NET) was mandatory. However it exempted candidates who had acquired M.Phil or submitted PhD thesis by 31.12.1993 from taking NET. The UGCR 2000 was amended a couple of times, but retained such exemption. By way of the UGCR 2009, NET was made the minimum stipulation for appointment of Lecturer. The candidates who acquired PhD in compliance with UGC (Minimum Standards and Procedure for Award of M. Phil / Ph.D. Degree) Regulations 2009 (PhD Regulations, 2009) were exempted from qualifying NET. The UGCR 2009 was again amended in 2010, but the exemption with respect to the PhD Regulations, 2009 was still in place. This gave way to a lot of confusion, as it was being interpreted to mean that PhD holders who were awarded PhD prior to the coming into force of the UGCR 2009 were disentitled to claim exemption from qualifying NET. In this backdrop, UGCR was subsequently amended in 2016 and 2018 with the intention to clarify that both pre-2009 and post-2009 PhD holders would be exempted from qualifying NET. Factual Background On 13.06.2011, the University of Kerala notified vacancies for some posts. One mandatory condition was to qualify NET. But, the advertisement categorically exempted candidates having PhD in the concerned subject from qualifying NET. Pursuant to the advertisement the petitioner(Dr.Jayakumar) had applied; he was assessed and assigned first position. The candidate who came second filed a writ petition before the Kerala High Court challenging petitioner's appointment on the ground that he had not obtained his PhD prior to coming into force of the PhD Regulations, 2009. The Single Judge of the High Court set aside the appointment, which was later confirmed by the Division Bench. Contentions raised by the parties Both the petitioner and the University defended the appointment and argued that UGCR 2009 was adopted by the University in 2013 and when the petitioner was appointed in 2012, he was fully qualified as Lecturer. It was also contended that as clarified by UGC the PhD Regulations 2009 and UGCR 2009 were prospective in nature. The respondent averred that the petitioner could not have been granted exemption from NET which was an essential criteria under the extant Rules. It was asserted that since the 2009 UGCR only exempts those who have obtained PhD in terms of the PhD Regulations 2009, petitioner would not be eligible for the same benefit as he had received his PhD much prior to coming into force of the PhD Regulations 2009. Analysis by the Supreme Court The Bench observed that, noting that a large group of PhD holders who were awarded doctoral degrees prior to the coming into force of the UGCR 2009 suddenly became disentitled to claim exemption and were forced to appear and qualify NET, UGC by resolution clarified that the regulations are prospective in nature, i.e. all candidates having Ph.D. degree on or before 31.12.2009 and had registered themselves for the Ph.D. before this date, but would be awarded such degree subsequently, shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. The Central Government did not agree with UGC on this issue and that paved the way for litigation. Subsequently, UGC amended the UGCR in 2016 to protect the pre-2009 PhD holders who were appointed in various institutions and were working as Lecturers for several years. To clarify its stand further, UGC amended UGCR 2016 in 2018 to bifurcate pre and post-2009 PhD holders and exempted both from qualifying the NET. The Bench was of the view that the language in the subsequent amendments made it evident that they were to have retrospective application. Reference was made to the judgment in Darshan Singh v. Ram Pal Singh wherein the Apex Court had held that Courts will construe a provision to act retroactively when clear words are used to indicate the same. Moreover, the ...

UGC Regulations 2016 Exempting PhD Holders From NET Qualification Will Apply Retrospectively : Supreme Court

Sohini Chowdhury

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