Dismissed

Nisha R. v. State of Kerala

Kerala HC14 Sept 2021WA/504/2021

Case brief

AI extract

What is this about?

In this writ appeal, the Kerala High Court dismissed the challenge to the appointment of a respondent as Assistant Professor in Computer Science at Sree Ayyappa College. The court held that an M.Tech degree holder in Engineering is exempt from the NET qualification requirement under UGC and University Regulations.

What did the court decide?

Writ Appeal fails and is dismissed; appointment of 8th respondent is upheld.

Nisha R. Vs State of Kerala — Education and Admissions | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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TUESDAY, THE 14^TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943

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WA NO. 504 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 13488/2020 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:

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NISHA R. AGED 40 YEARS

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W/O.SHANIL.S., THODIYIL VEEDU, THRIVENI JUNCTION, VALATHUNGAL.P.O., THATTAMALA, KOLLAM-691018.

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BY ADVS. LIJU.V.STEPHEN SMT.INDU SUSAN JACOB

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.

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2 DIRECTOR OF COLLEGIATE EDUCATION, NEAR FIRE STATION, PALACE ROAD, VAYASKKARAKUNNU, VAYASKKARA, KOTTAYAM-686001.

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3 UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, PALAYAM, THIRUVANANTHAPURAM-695034.

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4 THE VICE CHANCELLOR UNIVERSITY OF KERALA, PALAYAM, THIRUVANANTHAPURAM-695034.

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5 THE UNIVERSITY GRANTS COMMISSION (UGC) BAHADUR SHAH ZAFAR MARGE,NEW DELHI-110002, REPRESENTED BY ITS SECRETARY.

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W.A NO.504/2021

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6 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM-695034.

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7 SREE AYYAPPA COLLEGE, ERAMALLIKKARA CHENGANNUR-689109, REPRESENTED BY ITS PRINCIPAL.

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8 SREELAKSHMI.A.N. AGED 30 YEARS, D/O.S.NASIM, VADASSERIL, PURAMATTOM.P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT-689543. (ASSISTANT PROFESSOR, DEPARTMENT OF COMPUTER SCIENCE, SREE AYYAPPA COLLEGE, ERAMALLIKARA, CHENGANNUR).

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9 DR. SREERAJ M. AGED 38 YEARS, S/O.MATHAVANKUTTY.K., RESIDING AT SREEMADHAVAM, AMBALAPUZHA P.O., AMBALAPUZHA, ALAPPUZHA DISTRICT, PIN-688 561.

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BY ADVS. SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA SRI.S.KRISHNAMOORTHY, CGC SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD SRI.K.JAJU BABU (SR.) T.V.SREEJITH SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN ADV KALEESWARAM RAJ

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SR. GP PREMCHAND R NAIR,

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A NO.504/2021

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'C.R.'

J U D G M E N T

A.K.Jayasankaran Nambiar J.

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The petitioner in W.P(C).No.13488/2020 is the appellant before us, aggrieved by the judgment dated 4.3.2021 of the learned Single Judge in the writ petition.

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The brief facts necessary for disposal of the writ appeal are as follows:

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The writ petitioner had responded to Ext.P1 notification dated 3.3.2016 published by the Travancore Devaswom Board, inviting applications for appointment to the post of Assistant Professor in various subjects, including Computer Science, in the Colleges managed by the Travancore Devaswom Board, which are affiliated to the Kerala University. The notification specified that the eligibility qualifications for the candidates would be as per the Rules and Regulations of the UGC/University/Government, and the upper age limit of the candidates would be as applicable for appointment in Government Colleges. It is not in dispute that the petitioner along with others applied for the post, and in the selection process that ensued, a rank list was drawn up, in

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which, the petitioner was not included. On completion of the selection process, while to the sole vacancy that was advertised, the 9^th respondent was appointed, to a subsequent vacancy that arose during the pendency of the selection process, the 8^th respondent was appointed as Assistant Professor (Computer Science) with effect from 3.6.2019. It is not in dispute that the said appointment of the 8^th respondent was subsequently approved by the University. In the writ petition, the petitioner impugned the appointment of the 8^th respondent inter alia on the contention that she did not possess the necessary NET qualification which was the minimum qualification specified by the UGC in the UGC Regulations On Minimum Qualifications For Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 [hereinafter referred to as “UGC Regulations, 2010”].

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A statement was filed on behalf of the University, and a counter affidavit was filed by the 8^th and 9^th respondents. In the statement filed on behalf of the University, the contentions in the writ petition were answered through the following averments at paragraphs 3 to 8.

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“3. It is humbly submitted that there are several teachers in Computer Science appointed similarly in affiliated colleges who possess the basic qualification of M.Tech. Degree in Computer Science acquired under the Faculty of Engineering and Technology.

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W.A NO.504/2021

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As per the UGC Regulations relating to minimum qualifications for appointment and promotion of teachers in colleges, Post Graduate Degree in the relevant subject (minimum of 55% marks) with UGC NET/Equivalent qualification is the eligibility criteria fixed for recruitment to the post of Assistant Professor in affiliated colleges. The approval of appointment of teachers in aided affiliated colleges is vested in the University.

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The UGC Regulations do not act as a stumbling block on the M.Tech degrees awarded under the Faculty of Engineering and Technology following the Regulations of the AICTE being considered in the appointment of teachers to Arts and Science colleges. Clause 4.4.1 of the UGC Regulations 2010 quoted by the petitioner itself shows that her contentions cannot sustain. As per the Regulations of the University, M.Sc. Degree in Computer Science/MCA/M.Tech. Degree in Computer Science are considered as eligible qualification for appointment as Assistant Professor.

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The UGC Regulations specify that NET shall be deemed as mandatory only for disciplines in which the UGC is conducting NET or any equivalent examination by CSIR/similar agencies, incorporated in UGC Regulations 2018 also as Clause 3.3.II. It may kindly be noted that M.Tech Degree in Computer Science awarded under the Faculty of Engineering and Technology acquired consequent to B.Tech Degree under the same Faculty comes under the purview of the AICTE. The AICTE does not hold any examination at par with NET.

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The averments made in paragraph 6 are incorrect and hence denied. Though it is accepted that the UGC has been conducting NET in Computer Science, such NET can be insisted only for those who have acquired the Post Graduate degree in Computer Science (M.Sc/MCA/M.Tech), for which the admission criteria does not prescribe a B.Tech Degree under Faculty of Engineering and Technology as mandatory. These degrees are not under the governance of the AICTE and is awarded by various universities including the IITs under the Faculty of Applied Sciences. It is once again reiterated that the UGC Regulations do not call for NET/SET/SLET examination in a discipline where they are not available and that the AICTE is not conducting any equivalent test for M.Tech degree holders under the Faculty of Engineering and Technology. The only option available is to consider GATE as a necessary qualification, but for which till date no policy decision is available in the UGC Regulations. The University has intimated the Chancellor about the facts of the issue at hand on the basis of the representation from the petitioner.

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It is humbly submitted that only if the University Regulations are amended to remove M.Tech from eligible qualification for teaching post or the UGC specifies that NET shall be made applicable to M.Tech Degrees under AICTE also, the contentions of the petitioner shall acquire validity and that too only prospectively.”

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W.A NO.504/2021

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In the counter affidavit of the 8^th respondent, the stand taken was that inasmuch as the 8^th respondent was a Master's Degree holder in Engineering, there was no requirement for having a pass in the NET examination, inasmuch as the UGC Regulations, 2010 itself made it clear that no NET examination was required if there was no such examination held in the discipline that informed the Master's Degree held by the 8^th respondent. In particular, it was clarified that inasmuch as no NET examination was conducted in the discipline of Engineering, the said respondent did not have to obtain a NET qualification as part of the eligibility conditions. It was further pointed that as per the scheme of the UGC Regulations, 2010, NET is not a qualification that is required for Master's Degree holders in Engineering. Reference was made to Clause 4.4.6.1 of the UGC Regulations, 2010 to buttress the said submission.

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The learned Single Judge, who considered the matter, referred to the University Regulations that were amended with effect from 22.8.2000, as also the provisions of the UGC Regulations, 2010, to hold that a Master's Degree holder in Engineering did not require a NET qualification as a pre-condition for being considered for the post of Assistant Professor (Computer Science) in the Colleges affiliated to the Kerala University. The contention of the learned counsel for the petitioner that the 8^th respondent was not qualified inasmuch as she

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W.A NO.504/2021

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had not taken a NET qualification in the subject of Computer Science for which a NET examination was held, was repelled by the learned Single Judge.

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Before us, it is the contention of the learned counsel for the appellant that the learned Single Judge erred in placing reliance on the Kerala University Regulations relating to qualification of teachers, that was amended in the year 2000. He would point out that the Regulations have been subjected to further amendment in the year 2003, and as per the amended Regulations, the NET qualification must be seen as a mandatory requirement for those aspiring for the post of Assistant Professor in non-professional Colleges in all departments, including the department of Computer Science. He would also place reliance on the judgment of the Supreme Court in State of Madhya Pradesh & Others v. Manoj Sharma and others - [(2018) 3 SCC 329] , judgment of a Division Bench of this Court dated 3.10.2019 in W.A.No.1515/2017 and connected cases [Dr.Rehna Augustine v. Cochin University of Science and Technology and Others] as also judgment of a Division Bench of the Punjab & Haryana High Court dated 3.2.2020 in CWP No.17340/2017 [Divya v. State of Haryana & Others] .

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We have heard Sri.Liju V.Stephen, the learned counsel for the appellant, Sri.Thomas Abraham, the learned Standing Counsel for

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W.A NO.504/2021

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the University of Kerala, Sri.Jaju Babu, the learned Senior counsel appearing for the 8^th respondent, Sri.Kaleeswaram Raj, the learned counsel appearing for the 9^th respondent, Sri.G.Biju, the learned Standing Counsel for the Travancore Devaswom Board and Sri.S.Krishnamoorthy, the learned counsel appearing for the 5^th respondent.

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On a consideration of the facts and circumstances of the case and the submissions made before us, we are of the view that the impugned judgment of the learned Single Judge does not call for any interference. The Kerala University Regulations Relating to Qualifications of Teachers, 1972, while dealing with the qualification requirements of Teachers of Non-Professional Colleges in the Department of Computer Science and Electronics states as follows with regard to the qualification required of a Lecturer in Computer Science in the Computer Science/Electronics Department.

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“D . Computer Science/Electronics

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Lecturer in Computer Science.

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(a) First class B.E/B.Tech in Computer Science/ Computer Engineering

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(b) First class B.E./B.Tech. In Electronics/ Electrical and Electronics Engineering with one year's teaching/R & D experience in Computer Science/Computer Engineering/Computer Application in Universities/ Colleges/ Government/Public Sector Organisations.

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(d) M.Sc Computer Science/MCA Computer Science with a minimum of 55% marks

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(e) M.Sc. Mathematics or Physics or Statistics with a minimum of 55% marks and Ph.D. in Computer Science.

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Note: -

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(1) Candidates under category (a), (b) and (c) will be governed by AICTE norms and will be eligible for promotion only after acquiring Master's Degree.

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(ii) Candidates under Category (d) and (e) should have passed NET/SLET in Computer Applications/Computer Science.

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[Notwithstanding anything contained in the foregoing provisions NET shall remain the compulsory requirement for appointment as Lecturer even for candidate having Ph.D. Degree. However the candidate who have completed M.Phil Degree by 31st December, 1993 or have submitted Ph.D thesis to the University in the concerned subject on or before 31st December, 2002 are exempted from appearing the NET Examination. In case such candidates failed to obtain Ph.D. Degree, they shall have to pass the NET Examination:

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Provided further that the relaxation from NET in respect of candidates who have completed M.Phil Degree by 31st December, 1993 or have submitted Ph.D. thesis to the University in the concerned subject on or before 31st December, 2002 shall be applicable irrespective of the date of effect of this amendment to the Regulations.

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(iii) At least 50% teachers for the Course in Computer Science should have their first degree in Engineering.”

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It would be clear from a perusal of the said Regulations that

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for a person to qualify for appointment as a Lecturer in Computer

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Science (since re-designated as Assistant Professor (Computer Science)), he/she has either to be a Graduate Degree holder in any of the disciplines mentioned above or an M.Tech. in Computer Science with a minimum of 55% marks or an M.Sc/MCA in Computer Science with a minimum of 55% marks or an M.Sc in Mathematics/Physics or Statistics with a minimum of 55% marks and a Ph.D in Computer Science. The Notes below the Regulations clearly mandate that the candidates under category (a), (b) and (c), which are the Bachelor and Master's Degree holders in Engineering would be governed by AICTE norms and would be eligible for promotion only after acquiring the Master's Degree. Note 2, on the other hand, which dealt with the Degree holders other than those holding a Master's Degree in Engineering should have passed NET/SLET in Computer Applications/Computer Science. By way of further amendment to the Regulations with effect from 21.1.2003, it was clarified that the requirement of a pass in NET specified for candidates under categories (d) and (e) would remain notwithstanding that they also had a Ph.D. in the relevant discipline of their educational Degree. It is not in dispute in the case before us that the 8^th respondent, whose appointment is impugned in the writ petition, was an M.Tech in Computer Science having the minimum eligibility of 55% marks as contemplated under the University Regulations.

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With the publication of UGC Regulations, 2010, that have since been adopted by the State Government, the University

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Regulations referred above have to be read along with the UGC Regulations 2010, in order to ensure that the minimum eligibility requirements, as specified in the UGC Regulations, 2010 are satisfied under the University Regulations. When so read, it can be seen that, after the coming into force of the UGC Regulations, 2010, the candidates who have Masters degrees in subjects other than Engineering, that are relevant to the post of Assistant Professor, have necessarily to acquire a NET qualification also as a pre-condition for applying for consideration to the post in question. For the Master's Degree holders in Engineering, there would be no requirement of obtaining a NET qualification since the exemption clause in the UGC Regulations makes it clear that “NET/SLET/SET shall also not be required for such Master's Programmes in disciplines, for which, NET/SLET/SET is not conducted. For the sake of convenience, the relevant Regulation is extracted hereunder:

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“4.4.0 ASSISTANT PROFESSOR

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4.4.1. Arts, Humanities, Sciences, Social Sciences, Commerce, Education, Languages, Law, Journalism and Mass Communication

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i. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university.

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ii. Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET.

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iii. Notwithstanding anything contained in sub-clauses (i) and (ii) to this Clause 4.4.1. candidates, who are, or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (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 Professor or equivalent positions in Universities/Colleges/ Institutions.

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iv. NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted.” [emphasis added]

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In our view, the Regulation gives a clear indication that aspirants to the post of Assistant Professor in Science disciplines in Arts and Science Colleges, as opposed to Professional Colleges, can be either Masters Degree holders in Engineering or Masters Degree holders in a subject relevant to the Post of Assistant Professor to be filled. While the latter category of persons is obliged to obtain a NET qualification in the relevant subject, over and above their Masters Degree to be eligible for consideration for the post, the former category who hold Masters Degree in Engineering would not be required to obtain a NET Qualification because there is admittedly no NET examination conducted for the Engineering discipline.

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This aspect of the Regulations becomes clear when one peruses Clause 4.4.6.1 of the same Regulations where it is stated that M.Tech Degree holders are not required to obtain an additional NET

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qualification for seeking appointment as Assistant Professor in Engineering and Technology disciplines in Universities and Colleges.

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Thus, we find ourselves unable to accept the contention of the learned counsel for the appellant that the Regulation must be seen as requiring a NET qualification in Computer Science from all aspirants to the post so long as the appointee is required to teach the subject in which a NET examination is offered. We also do not find the judgments relied on by the learned counsel for the appellant as coming to his aid in support of the said proposition. The Regulations make it clear that while the Masters Degree can be in a 'relevant subject' by which term, in the present context, is meant a subject relevant to Computer Science, all aspirants other than those exempted have to obtain a NET qualification by taking the NET examination if offered in that subject. The exemption provision, as noticed above, exempts persons holding Masters Degree in disciplines for which NET is not conducted and in the instant case, the exemption would apply to holders of Masters Degree in Engineering. In this respect the UGC Regulations also conform to the University Regulations extracted above which also exempts holders of Masters Degree in Engineering from acquiring NET Qualification.

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Thus, for the reasons stated in the impugned judgment of the learned Single Judge, as supplemented by the reasons in this judgment, the Writ Appeal fails, and is accordingly dismissed.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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Sd/-

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MOHAMMED NIAS C.P. JUDGE

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Nisha R. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Nisha R. v. State of Kerala

Case brief

What is this about?

What did the court decide?

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