IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 18..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 8559 and 25637 of 2001 Dr. M.D. Rajukumar .. Petitioner in both W.Ps. vs. 1. The Registrar Bharathiar University Coimbatore .. R1 in both W.Ps. 2. The Vice-Chancellor Bharathiyar University Coimbatore .. R2 in W.P. No. 8559 / 2001 3. The Secretary University Grants Commission Bahadur Shar Zafar Marg New Delhi .. R2 in W.P. No. 25637/2001 4. The Director Distance Educational Council Indira Gandhi National Open University Maidan Garhi New Delhi .. R3 in W.P. No. 25637/2001 W.P. No. 8559 of 2001 filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records connected with the Advertisement No. 10011-1/E3/2001 dated 02.3.2001 calling for the post of appointment of Director and quash the same and direct the respondent University to call for the post of appointment of Director by fresh advertisement according to the norms and guidelines prescribed by the University.
W.P. No. 25637 of 2001 filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records connected with the Advertisement No. 18488/E3/2001 dated 27.11.2001 issued by the first respondent published in the Indian Express dated 26.11.2001 calling for the post of appointment of Director, School of Distance Education, Bharathiar University, Coimbatore and quash the same and direct the first respondent to call for the post of appointment of the Director, School of Distance Education, Bharathiar University, Coimbatore by fresh advertisement according to the norms and guidelines prescribed by the University.
For Petitioner : Dr. M.D. Rajukumar (party-in-person) For Respondent 1 : Mr. R. Viduthalai, SC for Ms. N. Kavitha For R2 : Mr. P.R. Gopinathan For R3 : Mr. P. Gururamachandran C O M M O N O R D E R Both the writ petitions were filed by the same petitioner. In in W.P. No. 8559 of 2001, the challenge was to the advertisement dated 02.3.2001 made by the first respondent University calling for the post of Director, School of Distance Education. 2. By the said advertisement, which was found in the Hindu dated 07.3.2001 for the post of Director, the qualification was prescribed similar to that of Controller of Examinations, which reads as follows:- "Qualifications: 1. A Master's Degree with at least 55% of marks or its equivalent grade of B in the UGC seven point scale. 2. At least 15 years of experience as Lecturer (Sr. Scale) / lecturer with eight years in Reader's grade with experience in educational administration (or) Comparable experience in research establishment and / or other institutions of higher education. (or) 15 years of administrative experience of which 8 years as Deputy Registrar or an equivalent post."
The petitioner is aggrieved by the last category wherein non-teaching staff of the Universities, who are holding the post of Deputy Registrar, have also been allowed to compete for the said post. The grievance of the petitioner is that the Director of School of Distance Education must be an academic person and the said post should not be filled up with the non-teaching staff holding the post of Deputy Registrars.
3. On 26.4.2001, interim injunction was granted for a period of eight weeks restraining the University from conducting the interview. Subsequently, by an order dated 17.10.2001, the injunction was vacated and it was stated that if any selection made will be subject to the result of the writ petition.
4. It was thereafter, the University again called for candidates through press advertisement. The said advertisement appeared in the Indian Express dated 28.11.2001 prescribing the very same qualification which was earlier objected to by the petitioner to the aforesaid post. The petitioner, once again, moved this Court with W.P. No. 25637 of 2001 and by an order dated 21.12.2001, it was stated that the selection process can go on but the post should not be filled up pursuant to any selection made. Subsequently, by an order dated 22.01.2002, this Court permitted the University to fill up the post pursuant to the selection made. The petitioner filed a writ appeal being W.A. No. 170 of 2002 and the writ appeal was dismissed by the Division Bench by an order dated 23.01.2002. Therefore, both the writ petitions have now been posted for final disposal.
5. In view of the inter-connectivity between the two cases, they were heard together and a common order is being passed.
6. Heard the arguments of Dr. M.D. Rajukumar, petitioner appearing in person and Mr. R. Viduthalai, learned Senior Counsel appearing for Ms. N. Kavitha, for the University, Mr. P.R. Gopinathan, learned counsel for the second respondent and Mr. P. Gururamachandran, learned counsel for the third respondent and perused the records.
7. The main submission of the petitioner was that the post of Director of School of Distance Education is a teaching post and no non-teaching staff can be allowed to fill up the said post. Many Universities including Central Universities have treated this as a teaching post and prescribed only qualified Lecturers to apply for the said post. When that was the case, it is not open to the Syndicate to prescribe an additional feeder category from the non-teaching side. He also submitted that the guidelines of the University Grants Commission (UGC) also treats such post as an academic post only.
8. On the side of the respondent University, it was stated that it is well open to the University to prescribe qualifications for various posts and insofar as the University is concerned, the Registrar, who is the Principal Executive officer, is always drawn from the teaching side though he is basically an Academician. The other posts of Executive Officers such as Controller of Examination are all treated subordinates to the post of Registrar. When the post of Director of School of Distance Education was created, it was treated on par with the post of Controller of Examination. There is nothing wrong in prescribing different feeder categories for the said post. There is no mandate for appointing only academic staff and any direction or instructions given by the Distance Education Council [for short, ‘DEC’] can only be advisory and not binding on the University. It was also submitted that the petitioner, having participated in the selection process, cannot challenge the very prescription of qualification and the University in the very best interest of distance education programme, has also provided for avenue of promotion from the category of Deputy Registrars who have long administrative experience in the University and can effectively deal with the School of Distance Education (SDE).
9. In this context, it is necessary to refer to the counter affidavit dated 03.5.2006 filed by the DEC. With reference to the post of Director of DEC, the following is averred in paragraphs 5 and 6 of the counter:-
Para 5: “I further humbly submit in the same manner as above that for the purpose of recruitment of Director the 3rd respondent has confirmed that assessment in paragraph 10 relevant to Distance Education Council IGNOU with respect to para 24 3rd respondent Distance Education Council is of the view that the Directorate of a Distance Education Institute / correspondence course Institute is basically meant for development and delivery of academic programmes. These are basically academic activities and the Director of such Institute should be marked / treated as an Academic post.
Para 6: For purposes of elucidating the matter, I am advised to state that the post of a Director for the Distance Education Council is purely for academic function and not administrative work. While so, the guidelines, norms suggested by us are to be followed in the best interest of the beneficiaries who adopt the distance education procedure.”
10. With reference to the binding nature of the instructions, the following averment is made in paragraph 3 of the counter:-
Para 3: “The main dispute is between the petitioner and the 1st respondent, Bharathiar University, Coimbatore. It is due to the fact that University Grants Commission and Distance Education Council have been made parties as second and third respondents respectively because the petitioner is relying upon the policies and the guidelines issued by them. In this matter, the 3rd respondent being the apex body under the preview of the IGNOU, New Delhi is rendering instructions, advices and guidance for the selections of Directors for the Distance Education Councils functioning under the regional universities. They are however purely recommendatory and not obligatory, for the Regional authorities like the first respondent.” (Emphasis added)
11. It is in the light of these rival submissions, the matter will have to be looked into.
12. The DEC was established under Section 5(2) of the Indira Gandhi National Open University Act, 1985 made by the Parliament. The functions of the Council is to act like an apex body for promotion, determination and maintenance of standards and co-ordination of open and distance education in India. The petitioner had provided a number of Universities having distance educational institutions. In most of the Universities, the Director of such institution was drawn from academics. It is only in the respondent University, they have provided for a feeder category providing for a non-teaching staff to head an academic centre such as SDE.
13. The University has filed a detailed counter affidavit dated 18.01.2002 stating that the instructions issued by the DEC will not have a binding effect on other Universities. Under Statute 5(5)(a) formed under the Bharathiar University Act, the University has power to fix, change or modify the qualification for all teaching and non-teaching posts. It was also stated that the post of Director of School of Distance Education is not included in the Statutes of the University. It was for this reason, they have brought it on par with the Controller of Examination and the age of retirement is fixed as 58 years which is the age prescribed for non-teaching staff. It was also stated that the norms prescribed by the UGC for the post of Registrar and equivalent post are almost on par with the teaching staff of the University. The University has prescribed the qualification for the post of Controller of Examination by incorporating as part of the Statute and the same was also assented by the Chancellor of the University on 01.8.2001. Since the Syndicate is the body which is in charge of creating post and also can prescribe qualifications, the petitioner cannot have any objection to the same.
14. The petitioner, Dr. M.D. Rajukumar, relied upon the judgments of the Supreme Court in University of Delhi v. Raj Singh and others [1994 Supp (3) SCC 516] and University Grants Commission v. Sadhana Chaudhary and others [1996 (10) SCC 536]. Both the judgments are for the purpose of showing that the UGC norms have a binding effect over the University while prescribing qualifications for the teaching posts.
15. In this case, the question is whether the circulars issued by the third respondent DEC can be referable to Entry 66 of List 1 of the Seventh Schedule of the Constitution so as to have a binding effect on the University. The contention of the University was that it does not have a binding effect. Even the DEC in its counter, had stated that it is only advisory in nature. Therefore, the argument of the petitioner is on the presumption, that the circulars are mandatory and referable to Entry 66 of List 1 of Seventh Schedule, cannot be accepted.
16. In this context, Mr. R. Viduthalai, learned Senior Counsel for the first respondent University brought to the notice of this Court the latest judgment of the Supreme Court in Basic Education Board, U.P. v. Upendra Rai and others [2008 (3) SCC 432] wherein M. Katju, J., speaking for the Bench, dealt with the relative provisions of the NCTE Act vis-a-vis the power of the State Government under Entry 25 of List III of Seventh Schedule. The following passages found paragraphs 22 and 23 may be usefully reproduced:-
Para 22: “It may be mentioned that the word “institution” is defined in Section 2(e) of the NCTE Act to mean an institution which offers courses or training in teachers’ education. Thus, the NCTE Act does not deal with the ordinary educational institutions like primary schools, high schools, intermediate college or university. The word “institution” as defined in Section 2(2) [sic 2(e)] only means teachers’ training institutes and not the ordinary educational institutions. Hence, it is only the teachers’ training institutions which have to seek grant of recognition or continuation of recognition from the Regional Committee. The ordinary educational institution do not have to seek any such recognition or continuation under the NCTE Act. In fact, the NCTE Act does not relate to the ordinary educational institution at all. We, therefore, fail to understand how it can be said that the NCTE Act overrides the U.P. Basic Education Act and the Rules made thereunder. In fact, the two Acts operate in altogether two different fields. The NCTE Act deals with the teachers’ training institutions while the U.P. Basic Education Act deals with the ordinary primary schools in U.P. and not any teachers’ training institute. The argument of learned counsel for the respondent is thus wholly misconceived.
Para 23: The impugned judgment also proceeds with the same fallacy. The Division Bench, in our opinion, wrongly relied upon Article 254 of the Constitution. Article 254, as stated above, has no application in this case at all because the two Acts operate in two different fields. In our opinion, the Division Bench, therefore, wrongly held that the respondent (the appellant before the Division Bench) had the requisite qualification for being appointed as an Assistant Master in a junior basic school.”
17. On the strength of the said decision as well as on the basis of the counter affidavit of the DEC, the learned Senior Counsel argued that the writ petitions filed by the petitioner are misconceived.
18. This submission of the learned Senior Counsel appearing for the University is well founded. Therefore, in the absence of any mandatory obligation on the part of the University to be bound by the circulars issued by the DEC, this Court cannot by a writ in the nature of mandamus direct the University to prescribe a particular qualification for the post of Director of SDE. Further, the University Syndicate is empowered to prescribe qualification and also create posts. In the present case, the advertisement itself states that the post is temporary in nature and the persons are liable to be retired at the age of 58 years thus making it clear that it is only a non-academic post. Therefore, this Court is unable to interfere with the advertisement issued by the respondent University and the consequential selection made by them.
19. However, the wealth of materials produced by the petitioner clearly shows that in all the universities, the said post has been reserved for the academic side and academicians only are posted. Since the Statutes of the University had not been amended and the post has not been incorporated as part of the statutes, there is nothing wrong in the present advertisement. But, at the same time, considering the fact that the Parliament had created DEC under Section 5(5)(2) of the IGNOU Act and such council has been permitted to lay down co-ordination and standards in the matter of distance education by all universities concerned, the views expressed by the DEC cannot be undermined by the University when it frames statute providing for the post of Dean of School of Distance Education. It must be only an academic position like any other Department of the University. Therefore, the University is well-advised that while framing the statutes creating the posts in a permanent nature, should take note of the advise tendered by the DEC and keep it as part of the academic post and also provide necessary qualifications treating the Dean of School of Distance Education as an Academician and not as an Executive Officer of the University. This will enhance the prestige of the University as well as SDE.
20. In the light of the above, this Court is not going into other issue as to whether the petitioner is estopped from filing the present writ petitions having participated in the selection process and other contentions. Except for the above observations, the writ petitions deserve to be dismissed. Accordingly, they are dismissed. No costs.
gri
To
1. The Registrar
Bharathiar University
Coimbatore
2. The Vice-Chancellor
Bharathiyar University
Coimbatore
3. The Secretary
University Grants Commission
Bahadur Shar Zafar Marg
New Delhi
4. The Director
Distance Educational Council
Indira Gandhi National Open University
Maidan Garhi
New Delhi