Irfan Ahmad Hakak vs University Of Kashmir And Others

1) The petitioner is aggrieved and has assailed the decision of the Board of Research Studies in Centre of Central Asian Studies (CCAS, for short)

dated 7th of September, 2017, whereby and where-under request of the petitioner to join three years Integrated Ph.D. programme on part time basis

without putting in residency period has been rejected.

2) Before adverting to and with a view to better appreciate the grounds of challenge urged by the petitioner to assail the impugned decision, it would

be appropriate to notice few material facts as are necessary for disposal of this petition.

3) Petitioner holds Post Graduate Degree in Library and Information Science from University of Kashmir. It is on the basis of this qualification, the

petitioner has been appointed as Junior Professional Assistant on contract basis in the Institute of Home Sciences vide order

No.F(cont/gen.Admn)KU/12 dated 04.10.2012.

4) The Dean Faculty of Arts (now Social Science) vide his Advertisement Notice No.F(Adm„3‟years integrated Ph.D. Programme)Res/KU/14

dated 30.12.2014, invited applications from the desirous candidates for admission to Three Years‟ Integrated Ph.D. Programme, inter alia, in the

Faculty of Arts. The Faculty of Arts, for which applications were invited, also included the discipline of Library and Information Science.

5) The petitioner, who claims to be eligible in terms of the aforesaid Advertisement Notice, also submitted his application form. He was ultimately

selected by the Dean concerned, as is evident from the select list bearing No.DFSS/PHD/Adm/CCAS/KU/15 dated 23.12.2015. The name of the

petitioner appears at serial No.4 with total marks 66 out of 100.

6) Consequent upon his selection, the petitioner, it is claimed, reported at CCAS for pursuing his Ph.D. Programme. The Dean, Faculty of Social

Sciences, taking note of the request of the petitioner that he would like to pursue his Ph.D. Programme on part time basis, submitted the request of the

petitioner to the Dean Research, who, after finding that the petitioner was working as Junior Professional Assistant on contract basis for last three

years and was not a permanent employee of the University having four years substantive service, forwarded the case of the petitioner to the Vice

Chancellor of the University. The Vice Chancellor in turn recommended for placing the matter before the Board of Research Studies. The Board of

Research Studies, however, declined to grant permission to the petitioner to pursue his Ph.D. Programme on part time basis without putting in

residency period. The decision of the Board of Research Studies in CCAS is contained in Agenda Item No.3 of the minutes of meeting which was

held on 07.09.2017 in the Committee Room of the Administrative Block, University Campus, Srinagar. It is this decision of the Board of Research

Studies which is called in question in this petition.

7) The petitioner seeks to challenge the impugned decision of the Board of Research Studies on the following grounds:

(I) That the impugned decision of the Board of Research Studies is arbitrary and does not spell out any reasons to decline admission to the petitioner

to Three Years‟ Integrated Programme in Ph. D. on part time basis and, therefore, the same is violative of Article 14 of the Constitution of India;

(II) That the petitioner, as per the relevant Clauses of the Statute, particularly Clause 7.2, is fully eligible and, therefore, cannot be denied his right to

pursue the Ph.D. Programme in question on part time basis. It is also claimed that Clause 7.2 of the statute, which provides for substantive service in

the University, Central or State Government, is directory in nature and looking to the object sought to be achieved by the Statute, particularly Clause

7.2, a person serving in the University on contractual basis cannot be treated differently from the one working on substantive basis and, therefore,

Clause 7.2 calls for a purposive interpretation to read into it an employee of the government/University working on contractual basis as well;

(III) That under similar set of circumstances the University had permitted one Mohammad Sultan Rather, a contractual employee of the University, to

take admission in Three Years‟ Integrated Ph.D. Programme in Education without fulfilling mandatory residency requirement. The petitioner, being

similarly placed, cannot be treated differently as that would subject him to hostile discrimination;

(IV) That the respondents by considering the candidature of the petitioner and allowing him to participate in the selection process and selecting him for

the programme cannot be allowed to turn around and deny admission to the petitioner to undergo Three years Integrated Ph.D. Programme on part

time basis. It is submitted that the respondents by permitting the petitioner to participate in the selection process and ultimately selecting him for

undergoing the programme have, thus, waived the residency requirement, if any, and, therefore, the Board of Research Studies was not correct in

declining request of the petitioner;

8) The respondents have resisted the petition and in the reply affidavit filed on behalf of respondent No.1 to 3, strong reliance has been placed on

Clause 7 and 16 of the relevant Statute of the University. It is pleaded that in terms of Clause 7, only teachers of the University of Kashmir with two

years service on substantive basis and permanent scientists of nationally recognized institutions with four years experience on substantive basis are

eligible for admission to the Integrated Ph.D. Programme on part time basis. Additionally, College teachers/other employees of the

universities/nationally recognized educational and research institutions with at least four years service on substantive basis and State/Central

employees with at least seven years service on substantive basis are also eligible for the aforesaid programme provided they qualify the requisite

entrance test and are otherwise eligible. It is also claimed that for undergoing Integrated Ph.D. Programme on part time basis, it is necessary for a

scholar to put in 3 years mandatory residency period to be completed in 5 spells of 5 months each and other 11 months, however, can be resided in the

evenings, weekends and holidays with attendance certified by DRC for 6 months spells over 6 years.

9) On the basis of aforesaid requirements of the Statute, it is submitted that the petitioner was found ineligible on both counts. He was neither an

employee of the University with at least four years service on substantive basis nor, while being a contractual employee, could have put in mandatory

residency period. It is on this basis, the respondents have sought to justify the impugned decision of Board of Research Studies.

10) With regard to Mr. Mohammad Sultan Rather, a handicapped person, it is submitted by the respondents that his case was an extraordinary special

case considered purely on humanitarian grounds keeping in view his state of disability. It is, thus, submitted that the case of Mr. Mohammad Sultan

Rather is sui generis and cannot be treated on par with the petitioner. With regard to two other scholars, namely, Ms. Fatima Buch and Asmat Naqati,

their admission to the programme is sought to be justified by the respondents on the strength of statute which permits a Research Scholar to pursue

his/her Research Programme on part time basis in the faculties other than Science by putting in residency period of only 180 days to be completed in

two spells and in case of Faculty of Science, it would be 210 days to be completed in two spells. Strong reliance has been placed by the respondents

on the proviso which provides that permanent/ contractual/ad hoc/temporary teachers of University of Kashmir and JRF/SRF/Project

Fellows/Research Assistant/Project Assistant working in sponsored research schemes/projects in the same department shall be deemed to have put in

prescribed residency period.

11) The petitioner has also filed supplementary affidavit in response to the reply affidavit filed by the respondents. The supplementary affidavit has

essentially been filed to place on record the University Grants Commission (Minimum Standards and Procedure for Award of M. Phil/Ph.D. Degrees)

Regulations, 2016, and two judgments rendered by Delhi High Court. There is, however, nothing new pleaded in the supplementary affidavit.

12) Having heard learned counsel for parties and perused the record, it is necessary to first refer to and set out relevant Statutes governing the

controversy in hand.

13) The University of Kashmir with its jurisdiction extended to Kashmir Division and the University of Jammu with its jurisdiction extended to Jammu

Division were established under Section 3 of the Kashmir and Jammu Universities Act, 1969 (hereinafter “the Actâ€). Apart from other authorities

created under the Act for running the affairs of the Universities, the Boards of Research Studies have been provided to be established under Section

32 of the Act to organize research studies under the guidance of Academic Council and in accordance with the Statutes and Regulations prescribed in

this behalf. Section 33 of the Act delineates powers and functions of the Boards of Research Studies which, inter alia, includes the power to consider

and grant applications for registration for research degrees in the light of the recommendations made by the Head of the post-graduate department

concerned; to appoint supervisors for the guidance of research studies as also to consider any other matter referred to it by the Academic Council, the

Syndicate and the University Council. Section 40 of the Act provides for making of the Statutes for all or any of the matters enumerated in the

Section. Section 41 of the Act deals with the procedure to be followed in making the Statutes. Similarly, section 43 deals with and provides for making

of the University Regulations to deal with those matters which are not covered by the Statutes to be framed under Section 40 of the Act.

14) It is in exercise of the powers vested by virtue of Section 40 of the Act, the University has, inter alia, laid down Statutes governing admission and

award of integrated doctor of Philosophy (PhD) known as University of Kashmir Integrated Ph.D. (Programme) Statute [“Ph.D Statutesâ€​].

15) Relevant for our purpose are Statute No. 7, 16 and 17 of the Ph.D Statutes, which for facility of reference are reproduced as under:-

“7. Eligibility for part-time registration:

The following categories of candidates shall be eligible for admission to the Integrated Ph.D programme on part-time basis:

i) Teachers of University of Kashmir with two years service on substantive basis and permanent scientists of nationally recognized institutions with

four years experience on substantive basis.

ii) College teachers/ other employees of the universities/ nationally recognized educational and research institutions with at least four years service on

substantive basis State/ central employees with at least 7 years service on substantive basis. Provided further that this category of the

teachers/employees shall have to qualify the requisite entrance test.

Provided further that the candidates falling in clause (i) and (ii) of statute 7 should have obtained not less than 55% marks at the PG level in the

subject/allied subject in which he or she is otherwise eligible to pursue research.

Residency:

The Residency period for part-time scholars for integrated Ph. D programme shall be 3 years to be completed in 5 spells of 5 months each, to account

for 25 months; other 11 months shall have to be resided in the evenings, weekends and holidays with attendance certified by thw DRC or 6 months

spells over 6 years.

Provided that the University teachers having put in at least two years service on substantive basis shall be deemed to have put in the residency period

simultaneously without producing any kind of leave.

Further resolved that the recommendations of the Deans Committee pertaining to University permanent teachers for exemption to avail leave during

the residency period for pursuit of 3 years integrated Ph.D programme, which inter alia tantamount to amendment/addition of a proviso to statute 16 of

the statutes governing 3-years integrated Ph.D programme as mentioned above, be approved and the teacher should be working in the same

Department where he/she was registered for his /her Ph.D programme.

80% of the intake capacity in a Department/Research Centre for Integrated M.Phil/Ph.D pragramme shall be offered to candidates who will join

on whole-time basis with preference to students with JRF/with independent fellowship and the remaining 20% for candidates to join on part-time basis.

Provided that in case the seats fall vacant in part-time category due to non-availability of candidates, the seats shall be offered to the candidates

eligible under whole-time category.â€​

16) As per Statute No. 7, following categories of candidates are eligible for part time registration to the integrated Ph.D programme:-

(I) teachers of University of Kashmir with two years service on substantive basis;

(II) Permanent scientists of Nationally recognized institutions with four years experience on substantive basis;

(III) College teachers and other employees of the Universities/Nationally recognized educational and research institutions with at least four years

service on substantive basis.

(IV) State/Central employees with at least seven years service on substantive basis.

17) As per the proviso first, the category of teachers/employees shall have to qualify the requisite entrance test. Proviso second, however, provides

that the candidates seeking registration/admission to the course should have obtained not less than 55% marks at the P.G. Level in the subject/ allied

subject in which he or she is otherwise eligible to pursue research. Statute 16, however, provides for mandatory minimum residency requirement for

part time scholars. It prescribes total residency period of three years to be completed in five spells of five months each, to account for 25 months;

other eleven months shall have to be resided in the evenings, weekends and holidays with attendance certified by the DRC. Proviso to Statute 16

further provides that so far as University teachers are concerned, if they have put in at least two years service on substantive basis, shall be deemed

to have put in residency period simultaneously without producing any kind of leave. Rule 17 however provides quota of 20% of the intake capacity in a

department/ research centre for integrated Ph.D programme on part time basis.

18) From plain reading and literal construction of the Statute 7, it is abundantly clear that temporary/adhoc/ contractual employees of the University,

State or Central Government are not eligible for part time registration and admission to the integrated Ph.D programme in the University of Kashmir.

Similarly Statute 16 is equally clear and unambiguous. Other than the University teachers having put in at least two service on substantive basis, all

other categories of candidates seeking registration for part time Ph.D are required to mandatorily put in residency period of three years out of which

20 months are to be put up regularly during University working hours whereas other 11 months could be resided in the evening, weekends and holidays

etc. It is only the University teachers with two years substantive service, have been allowed to count their residency period simultaneously with their

service in the University without producing any kind of leave. Plain reading of Statute 7 and 16 leaves no manner of doubt that the petitioner, serving

as Junior Professional Assistant in the Institute of Home Sciences, University of Kashmir on contractual basis, is not eligible to register as part time

Ph.D Scholar with the University of Kashmir. It is equally crystal clear that the petitioner, so long as he is in contractual employment of the University,

may not be in a position to meet the residency requirements of Statute 16. In view of the categoric and unambiguous language of the Statute, there is

hardly any need to embark upon the interpretative process as was suggested by Mr. Shah, learned senior counsel appearing for the petitioner. The

golden principle of interpretation accepted by the Courts in India is that Judges are not at liberty to add to or take from or modify the letter of the law

simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it, that means, in all ordinary cases

grammatical interpretation is the sole form allowable. If the precise words used in a Statute are plain and unambiguous, the Courts are bound to

construe them in their ordinary sense, even though it does lead to absurdity or manifest injustice. It is only where the import of words used in the

Statute is doubtful, ambiguous or obscure, the Courts may embark upon other cannons of statutory interpretation. It could be purposive interpretation

or “mischive ruleâ€​ that can be embarked upon and resorted to.

19) In the case of Kishore Saraf v. Raw Cottol Company Limited, AIR 1955 SC 376, the Supreme Court held that cordinal rule of construction of

Statute is to read the Statute literally, by giving the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurd

results and the words are susceptible of another meaning, the Court may adopt the same. The English law and the precedents of the Hon‟ble

Supreme Court on the principles of interpretation of Statutes are legion and the conclusions that can be drawn from these precedents, put in a nut

shell, would be as follows:

(1) Ordinarily the courts are duty bound to give the words used in the Statute their natural and ordinary meaning. After the interpretation, if the

meaning is completely clear and unambiguous then the effect shall be given to a provision of a statute regardless what may be the consequences. First

Rule is known as literal rule of interpretation whereas the later is called golden rule of interpretation. The basic rule is that whatever the intention

Legislature/Statute making authority had while making any provision, it had been expressed through words and, therefore, are to be interpreted

according to rules of grammar.

(2) It is only if the interpretation given through the literal rule leads to some kind of ambiguity, injustice in the meaning, hardship, inequity then in all

such events the literal meaning shall be discarded and interpretation shall be done in such a manner that the purpose of the statute is fulfilled. The rule

of purposive interpretation, mischief rule, harmonious construction etc. etc. may, in given facts and circumstances, be invoked.

20) That I have extensively reproduced Statute 6 and 17 and both from plain reading are clear, unambiguous and categoric and exclude part time

employees of the Universities for the purposes of part time registration for admission to the integrated Ph.D progarmme. Obviously, such employees,

not being permanent University teachers, are also obliged to put in mandatory residency period spelled out in Statute No. 16.

21) In view of the clear and unambiguous language used in the aforesaid Statute, I am afraid I cannot invoke purposive interpretation rule and include

even contractual employees of the University, like the petitioner, on par with permanent University teachers for the purposes of part time registration

to the integrated Ph.D programme run by the University. Doing so would be tantamount to modifying, amending or adding to the Statute through the

cloak of interpretation. I am of the considered view, it is not permissible in law.

22) Even the doctrine of „reading down‟, as enunciated and applied by the Supreme Court in Jit Ram Shiv Kumar v. State of Haryana AIR 1980

SC 1285 and Delhi Transport Corporation v. Delhi Mazdoor Congress, 1991 Suppl. (1) SCC 600, shall not be applicable in the instant case. Firstly for

the reason that vires of the statute is not under challenge and secondly the statutes, as they are, construed literally are not leading to any absurd or

obscure results. It is well settled that if the provision of law is explicitly clear, unambiguous and interpretation leaves no room for more than one

construction, it has to be read as it is. In that case, the provision of law has to be tested on the touchstone of the relevant provisions of law or of the

constitution as the case may be and it is not open for the Court to invoke the doctrine of „reading down‟ with a view to save the statute from

declaring it ultra vires by carrying it to the point of “ perverting the purpose of the statuteâ€. It cannot be said that if the contractual employees of

the University are not read into on par with and alongside the permanent University teachers, the Statute will become unworkable. Absent such

eventuality, embarking upon the „doctrine of reading down‟ would be like venturing into a kind of judicial legislation.

23) It is for these reasons I regret my inability to agree with Mr. Shah, learned senior counsel that looking to the intent and object of the Statute 7 and

16, there should be no distinction between the permanent University teachers and contractual employees of the University.

24) Indisputably, the petitioner has not called in question the vires of the statute in question and in the absence of a definite and specific challenge laid

to the statutes and in the absence of adequate opportunity to the University to rebut such challenge, it is not possible for this Court to return any finding

in this regard. It is only on the basis of relevant material on record, this Court could have determined whether the classification between the permanent

University teachers and temporary employees of the University for the purpose of admission to three year integrated Ph.D programme on part time

basis was real and permissible in the light of Article 14 of the Constitution of India.

25) No less fallacious is the contention of learned senior counsel that respondent University by having allowed the petitioner to participate in the

selection process culminating in his selection, is estopped by conduct to deny him the admission by relying upon Statute 16. From the material on

record and regard being had to the case set up in the petition, no specific or definite promise appears to have been even held out to the petitioner. The

advertisement notification inviting applications for three year integrated Ph.D programme was general in nature and not restricted or limited to the part

time Ph.D programme. The participation of the petitioner declaring himself to be a contractual employee of the University and getting selected in the

process of selection, will not, in the facts and circumstances of this case, operate as estopple against the respondents nor on the basis thereof

University can be directed to act contrary to the statute.

26) This brings me to the last contention of learned senior counsel that under similar set of circumstances the University had permitted one

Mohammad Sultan Rather, a contractual employee of the University, to take admission in Ph.D pragramme in Education without fulfilling mandatory

residency requirement and, therefore, the petitioner being similarly placed, cannot be treated differently, without subjecting him to hostile discrimination

which is constitutionally impermissible.

27) Respondents in the reply affidavit have explained that the admission of Mohammad Sultan Rather, a physically disabled employee of the

University was made under extreme and exceptionable circumstances by the competent authority. I have minutely gone through the University Act

and the Statutes framed by the University as were made available to me, I could not find any provision in the Statute which reserves or vests power of

relaxation of Statutes under given circumstances. If, in the case of Mohammad Sultan Rather the respondents have acted without jurisdiction and

beyond statutes, same cannot be treated as a precedent to perpetuate illegality. The principle of equality envisaged under Article 14 cannot be

enforced by the Courts negatively. However, I leave it to the University authorities to consider the case of the petitioner also under the provision of

relaxation, if any, contained in the Statutes or in the exercise of plannery powers if any vested with any authority of the University which might have

been invoked by the respondent University in the case of Mohammad Sultan Rather.

28) I shall be failing in my duty if I do not deal with judgments relied upon and cited by Mr. Shah to buttress his submissions. The Judgment of the

Supreme Court of India in the case of ITC Bhadrachalam Paperboards and anr v. Mandal Revenue Officer A.P and others, JT 1996 (8) 67 is relied

upon by the petitioner to emphasize on the point that the Statute creating public duties are generally speaking directory and those conferring private

rights are imperative. I fail to understand as to how this judgment would help the petitioner. The eligibility requirements for admission to a course or

public employment are always mandatory in nature and, therefore, cannot be relaxed unless the Statute laying down such eligibility makes a provision

there for. Similarly the judgment of the Delhi High Court relied upon by the petitioner cannot come to the rescue of the petitioner for the simple reason

that in the case dealt by the Delhi High Court in Twinkle Wadhwa v. University of Delhi, (2012) 187 DLT 204, there was specific provision in the

ordinances of the University vesting power in the Academic Council to grant exemption from the operation of any of the ordinances governing

admission etc in exceptional cases. The Court, in the given facts and circumstances of the case and looking to the topic of research chosen by the

petitioner, a Judge in the Mahila Court, concluded that the case was of an exceptional nature and, therefore, called for exemption from the operation

of the Statutes. It is true that in the aforesaid case the Delhi High Court did not find any rationale in insisting upon the residency requirement in the

case of the petitioner. As a matter of fact the case has been decided by the Delhi High Court in its peculiar facts and circumstances and in the light of

statutes/ordinances of the Delhi University. Aforesaid case is thus not, in any manner, comparable with the case of the petitioner.

29) For the foregoing reasons and in the face of clear Statutes, I find no merit in this petition and the same is, accordingly, dismissed, leaving it open to

the petitioner to work out his remedy against the Statutes, if so advised.