UGC’s Appeal in Kerala High Court : - Truth and Fallacies
UGC’s Appeal Memorandum in Kerala High Court : - Truth and Fallacies (The below mentioned points are just my on view points on the issue which may or may not be true and not intended to interfere with a matter under consideration of the court and intended for academic purpose only)The impugned Single bench decision, according to the appellant (UGC) is wrong for the reasonthat publishing the qualifying marks after the examination does not attract the ‘principal ofchange in rule of game’. Further UGC argues that it is competent to fix qualifying marks(qualifying criteria) as per its notification.It is admitted that as averred in Para 9 of Appeal Memorandum (hereinafter referred as AM) thatthere were two conditions in the notification for June 2012 NET. I) Only such candidates who secure the minimum required marks in each paper separately as mentioned above will be considered for the final preparation of the results II) However the final qualifying criteria for junior research fellowship (JRF) and eligibility for lectureship shall be decided by the UGC before the declaration of results.The legal issue is whether UGC has the powers to arbitrarily and in an irrationalmanner fix any Final qualify criteria for maintaining standards as envisagedunder section 12 of the Act on the basis of the above clauses and if exercisedarbitrarily and in an irrational manner is it not competent for Courts to interfereand whether UGC can protect its arbitrary and irrational acts as matter within therealm of decision making exclusively in the domain of academicians and experts.1) The comparison with December 2011 Notification:-Throughout the AM they are trying to glorify their decision of fixing aggregate afterthe exam based on a comparison with December 2011 Exam notification:-According to UGC Page 2 para 1 of AM‘Accordingly a notification has been issued for conducting the NET examination on24/6/2012 and in the notification it was only the minimum marks percentage, to beobtained for each papers, was published…………..The UGC had not notified orpublished the minimum qualifying marks/minimum qualifying criteria in the saidnotification, as was done during the earlier periods , which was an
aggregate of 50% for paper I & II another 50% for paper III, which was adescriptive type question paper.’Admittedly UGC has fixed the following qualifying criteria before the examination held on June2012.ANNEXURE A 3 (2) OF AMCATEGORY Minimum Marks(%) to be obtained PAPER-I PAPER-II PAPER-IIIGENERAL 40(40%) 40(40%) 75(50%)OBC(Non- 35(35%) 35(35%) 67.5(45%) rounded off to 68creamy layer)PH/VH SC/ST 35(35%) 35(35%) 60(40%)Only such candidates who obtain the minimum required marks in each paper, separately, asmentioned above, will be considered for final preparation of results.However the final qualifying criteria for Junior Research Fellowship (JRF) andEligibility for Lectureship shall be decided by UGC before the declaration ofresult.The criteria published for the previous exam December 2011 is as follows:-ANNEXURE A2 (4) AMPaper-III will be evaluated only for those candidates who are able to secure the minimumqualifying marks in Paper-I and Paper II, as per the table given in the following:CATEGORY MINIMUM QUALIFTING MARKS PAPER-I PAPER-II PAPER-I +PAPER-II
GENERAL 40 40 100(50%)OBC(Non-creamy 35 35 90(45%)layer)/PH/VHSC/ST 35 35 80(40%)The minimum qualifying criteria for award of JRF is as follows:CATEGORY MINIMUM QUALIFTING MARKS PAPER-I PAPER-II PAPER-I PAPER-III +PAPER-IIGENERAL 40 40 100(50%) 100(50%)OBC(Non-creamy 35 35 90(45%) 90(45%)layer)/PH/VHSC/ST 35 35 80(40%) 80(40%)However, the final qualifying criteria for Junior Research Fellowship andEligibility for Lectureship shall be decided by UGC before declaration of results.In the notification for December 2011 exam and June 2012 exam it is informed as follows:-However the final qualifying criteria for Junior Research Fellowship (JRF) andeligibility for lectureship shall be decided by the UGC before the declaration ofresults.It is admitted by UGC that on all earlier occasions on the strength of the above clause in thenotification the moderation committee has reduced the minimum marks at an average 5% (Page14 para 12 AM). Presumably the above relaxation, by sacrificing the standards, was done toensure the availability of lecturers.In the present case, the moderation committee has enhanced the minimum marks by 25% onthe only ground that, if the minimum marks are maintained as notified more than 2 lakhcandidates will have to declared as qualified for lectureship.Whether the above decision is rational?
According to UGC they have drastically changed the mode of examination from written toobjective and this prompted the Moderation Committee to fix the Final Qualifying criteriaenhancing the final Minimum marks by 25%.This rationale is perse wrong. Further the contention of UGC that they have fixed FinalQualifying Marks or even Minimum qualifying Marks for December 2011 NET is absolutelywrong (see Annexure A2(4) AM).For December 2011 NET there was no minimum marks/minimum qualifying criteria for NET.Qualifying criteria was subsequently fixed after exam.What were prescribed were the Criteria for evaluating Paper 3 and there was no minimum marksprescribed for Paper 3. Inspite of the same UGC has taken the minimum marks notified for thepurpose for evaluating Paper 3 as the qualifying marks for NET.In the June 2012 NET exam the UGC has notified the minimum marks for all the three papers.Once the candidate acquires the said minimum marks it is irrational to state that they have toacquire further marks for qualification. Further to fix the said higher marks as 25% above thequalifying marks is absolutely unreasonable.Further had they not have any intention to treat minimum marks of June 2012 as the minimumqualifying marks/minimum qualifying criteria then why they used the word ‘final qualifyingcriteria’? Instead they should have just used the word ‘qualifying criteria’. So the use of the word‘final’ itself shows that they had the intention to treat the minimum marks as the minimumqualifying marks/minimum qualifying criteria.The reason for enhancing the qualifying criteria is absurd. Paper one and two for net December2011 was also objective. The change was made only in the third paper. The third paper waschanged from descriptive to objective for JUNE NET 2012.Whether such a simple change in the exam pattern enables UGC to make such a drastic changein the policy of fixing final qualifying criteria?Another contention taken by UGC is that candidates should compulsorily answer all questions inpaper 2 and 3 so that it enables UGC to fix higher qualifying criteria and disable the candidatesfrom pleading that they are only required to get notified minimum marks for qualifying.Here it is pertinent to point out that merely stating that all questions are compulsory answerabledoesn’t mean that a candidate is required to answer all questions. If such a meaning is attributedthere is no need to even notify minimum marks. Further in Annexure A2 notification also; NET
December 2011 there was a similar clause for Paper 2 which was also objective and thecandidates who got the minimum marks notified were declared eligible.A candidate who appeared for June 2012 NET on reading the clause in the notification regardingfixing Final qualifying criteria will legitimately expect that UGC as in the past will fix newqualifying criteria for enhancing pass percentage by reducing the minimum required marks. Byno stretch of imagination a candidate will think that UGC will enhance the minimum qualifyingmarks by 25%.For December 2011 NET UGC has not even notified the minimum marks for paper 3. Thenotified marks for paper 1 and 2 are only the required minimum marks for the purpose of valuingpaper 3. In June 2012 NET, UGC has notified only the minimum marks. As per additionalclause in the notification the final minimum marks are to be reduced before the publication of theresults. As such the practice was to reduce the minimum marks notified by fixing the finalqualifying marks.2) Moderation Committee’s Role and its veracity by comparing it with December2012 ExamPage 14 Para 1 AM‘After every examination the standard of performance will be examined by a committee, dulyconstituted for the said purpose…………………………. The committee while evaluating themarks of the candidates, found that more than two lakhs of candidates had secured theminimum marks and had put in the ‘Zone of consideration’ and while ascertaining the table ofperformances of the candidates, in respect of the relevant subject, came to a conclusion that soas to maintain the standard, an aggregate of 65% for general, 55% for OBC and, 50forPH/VH/SC/ST is necessary. The said recommendation had been approved by the UGC, so asto declare that the candidates had cleared the NET.’Page 16 Para XVI AM‘After conducting every examination, so as to give a certificate of clearance, the ModerationCommittee is constituted, with such academicians, who are the Vice Chancellor and Principalheads of the education department, who recommends, on what percentage or on what criteria,the result of the NET examination can be declared, the result of the NET examination can bedeclared, for maintaining the standards. The said recommendations, though not obligatory forthe UGC to accept, for grating certificate of clearance, the said decision will be evaluated by theUGC and appropriate decision are taken, either accepting the recommendation or otherwise.Here in this particular case, UGC had accepted the recommendation of the committee and
clearance had been granted to those who have secured an aggregate percentage of 65%,55%,50% respective for general, OBC and PH/VH/SC/ST respectively, as NET qualified’.Page 21 para H AM‘The role of the Moderation Committee, constituting after every conduct of the National EligibilityTest, by the UGC as well by CSIR, has to be given much weightage because it consists of suchprofessionals and academicians. They compare the examination result, analyzing theperformance of each candidate from among those candidates, who had secured the minimummarks, who are in the zone of consideration before the publication of the result. The committeewhile fixing the aggregate will also compare the standard of those candidates who had beencleared the NET in the previous year’s examinations with the same standard. As such the saidstandard is the quality of the examination and the same cannot be diluted’Firstly comparing the students of one examination with students of previous year’s exam isarbitrary and illogical. The performance of students varies because of the difference in Questionpapers and also in the previous year paper 3 was descriptive and for JUNE 2012 Paper 3 wasobjective.To check the veracity and authoritiveness of the Moderation Committee it is pertinent to pointout the qualifying criteria fixed for NET December 2012.PROCEDURE & CRITERIA FOR DECLARATIONOF RESULT:This will comprise of following steps: Step I: Minimum marks to be obtained in NET for considering a candidate for the award of JRF and eligibility for lectureship:The candidates are required to obtain following minimum marksseparately in Paper-I, Paper-II and Paper-III as given below: Minimum Marks (%) to be obtained CATEGORY PAPER – I PAPER – II PAPER– III GENERAL 40 (40%) 40 (40%) 75 (50 %) 67.5 (45 %) OBC(Non- 35 (35%) 35 (35%) rounded off to creamy layer) 68 PWD/SC/ST 35 (35%) 35 (35%) 60 (40 %)Step II:Amongst those candidates who have cleared step I, a merit listwill be prepared subject-wise and category-wise using theaggregate marks of all the three papers secured by suchcandidates.Step III:Top 15% candidates (for each subject and category), from themerit list mentioned under step II, will be declared NET qualifiedfor eligibility for lectureship only.Step IV:A separate merit list for the award of JRF will be prepared fromamongst the NET qualified candidates figuring in the merit listprepared under step III.
It may be noted that the above qualifying criteria decidedby UGC is final and binding.For NET December 2012 UGC has fixed the minimum marks as the same for NET June 2012.The stipulation that UGC has the power to fix Final qualifying criteria after the exam was overhas been removed. Instead it is clearly mentioned that notified qualifying criteria is final andbinding.Thus for December 2012 exam UGC has made a turn around from its declared position aspleaded in Page 14 Para 1, Page 16 ParaXVI, Page 21 para H of the writ appealregarding the prominence of the moderation committee for maintaining standardsSo it is clear that for December 2012 UGC is not depending upon the recommendation of theModeration Committee. From the Criteria fixed for the December 2012 NET it is also clear thatUGC has sufficient materials before it for fixing standards before Exam.In the writ appeal UGC has made an all out endeavor to highlight the role of moderationcommittee and its role in fixing standards and in finalizing the final qualifying criteria and therebyattempting to legitimize the final qualifying criteria fixed for June 2012 NET and also making anattempt to state that the decision making process in fixing standards is within the realm ofacademicians and experts and courts lacks jurisdiction to interfere.It is submitted that as evident form the notification for December 2012 there is no need,requirement or necessity for the moderation committee for fixing the final qualifying criteria andas such for the final qualifying criteria fixed by the moderation committee for June 2012 NET hasno relevance at all regarding the maintaining standards of lectureship.To further prove how erroneous and unscientific the method of the assessment by theModeration committee is and how much irresponsible UGC is, it is pertinent to note that UGChas published a supplementary list on 12/11/2012 for June 2012 and fixed another criteria,questioning the authority of the Honble Court, when the legality of the first list and the power ofUGC to fix a new criteria, was under consideration. This shows the utter disregard anddisrespect of UGC towards the legal process and the judicial system of this Country. It is alsodisgusting to note that in the Appeal Memorandum the learned counsel intentionally hid this factand tried to glory the bullet fool proof methods adopted by Moderation Committee in fixingstandards. UGC has come in appeal with unclean hands.Further UGC has not published the criteria for the Supplementary list for about 2 ½ Months,keeping students in total darkness, and finally out of the blue on 17/1/2013 UGC published thecriteria in their website. UGC just 5 days before the final hearing of the case, to demoralize thestudents, off balance the respondents and to detour the judicial process, published the said
criteria. A copy of the criteria is submitted here. It should be noted that as the new qualifyingcriteria (65, 60, 55), glorified by UGC through out the appeal memorandum is now irreverent to aconsiderable extent because of the new 7% rule.The qualifying criteria for June-2012 publsihed in UGC website on 17/1/2013“Those candidates who had made it to the consideration zone, i.e., thosewho received a minimum of 40%, 40% & 50% marks in Paper-I, Paper-II and Paper-III respectively for General Category; 35%, 35% & 45% marks in Paper-I, Paper-IIand Paper-III respectively for OBC (Non-creamy layer) Category and 35%, 35% &40% marks in Paper-I, Paper-II and Paper-III respectively for SC/ST/PWD Categoryand those who secured aggregate percentage (obtained by combining marks ofPaper-I, II & III) of 65% for `General category, 60% for OBC (Non-creamy layer) and55% for SC/ST/PWD category candidates (This is the same criterion as decided bythe earlier Moderation Committee).ORThose candidates who figure among top 7% of all the candidates who appeared inNET; this shall be calculated separately for each discipline and for each category(SC/ST/OBC(Non Creamy Layer)/PWD). Accordingly a cut-off will be determined foreach subject and each category for this purpose. In case of tie (when severalstudents have same identical aggregate marks) all the candidates appearing at thequalifying marks shall be included. Candidates who do not secure minimum requiredscore in each paper and are therefore not in the consideration zone, will not beincluded in this list even if they fall among the top 7% within their subject andcategory.”3. Is NET a competitive exam ?In page 11(Para v) of the Appeal memorandum UGC wants to declare the NET as a NationalLevel Competitive Exam and for that they use the Annexure A1 brief note. But in brief note itselfthe intention is very clear not to make it competitive because the word ‘qualifying’ is used anumber of times.Annexure A1 (1) Qualifying at the National test conducted for the purpose by UGC or any other agency approved by U.GC. Annexure A1(2) “the teachers will be recruited on the basis of a common qualifying test , the details of which will formulated by UGC ………………………………….. • So the intention of UGC to make it a competitive test will not hold ground. rdPage 14 para Xiii 3 sentence‘There is no ranking system, but is onetime clearance, and awarding a qualifying certificate’(Emphasis Added) • So there is no question of treating NET a competitive exam.On Page 15 Para XV they are saying
‘The present competitive/eligibility test cannot be equated with such examinations or recruitmentprocess.NET examination is not an entry level process, as if like an entrance examination. It is afinal qualification for lectureship which is to be cleared by the UGC’. • They are contending that present competitive eligibility test cannot be equated with such examination or recruitment process. Then why they are saying ‘it is the final qualification for lectureship’. Once the candidate clears NET it doesn’t guarantee a post of lectureship. There are other test and interview. Had it been like that UGC should have made a rank list and even published a list. Those who get 65 and 100 are in the same footing. By giving a NET certificate without marks, all these years, UGC has made merit a joke and it will be an injustice to candidates having higher marks. This by itself shows that it is never meant to be competitive exam. • If the contention of UGC that NET is a competitive Exam is accepted it will create a bad precedent. This will allow other recruiting agencies to change the Qualifying criteria at any time favoring un-qualified and merit less candidates and will lead to arbitrariness and bias in recruitment processes.4. There is no question regarding the quality of the June examinationPage 20 Para G AM‘The quality of the said examination, being conducted by these statutory bodies, is wellaccepted’.‘The conduct of the examination is also well accepted’. • They themselves accepted that quality and conduct of said examination is well accepted. So there is no question as the standard of the question paper. So in what category does the students who got more than minimum marks and less than the aggregate belongs? If you get a minimum mark in an examination having good quality questions that explicitly means that you have the minimum qualification in the Exam.Page 21 para H AM.‘The committee while fixing the aggregate, will also compare the standard of those candidateswho had been cleared the NET in the previous year’s examinations with the same standard. Assuch the said standard is the quality of the examination and the same cannot be dilute’
• As there is no question regarding the standard of this year’s question, what was the necessity of the Moderate committee to compare this exam with the previous years?Page 21 Para I AM.‘The contention of the respondent/ petitioner which is accepted by the learned Single Judgethat, they had written the examination in the light of the announcement made in the notificationand as per the criteria fixed in the original prospectus and that they were excepted to get only aminimum and so they attempted only the most beneficial questions, is not at all correct. As perthe notification, out of 60 questions for paper I , 50 questions have to be compulsorily attended,which is the maxing marks for paper I, For paper II and III, all the questions have to becompulsorily attended, by the candidates which is the maximum marks could be awarded forthose papers. Hence they are expected to attend the questions so as to get 40% of marks forPaper I and II and 50% for Paper III, is not at all correct. In other words, had the 65% aggregateis published earlier, they would have been attending more number of questions, so as to acquirethe 65% is having no logic.’ • ‘Compulsorily attended’ doesn’t mean that you have to answer all the questions compulsorily in real terms. It doesn’t also mean that the answer paper wont be valued if they are not attending all the questions. The only intention of the student is to get the minimum marks which are the marks they were aware at the time of writing the exam. Even if they skip some questions the answer paper will still be valued if you get the minimum marks as per the notification. Further the word ‘compulsory’ is also used to clarify that for Paper I you have option and for the second and third papers you don’t have such options. Renjith.R.Nair