ORDER
R. Banumathi, J.
1.1. In W.P. No. 5736 of 2000 challenge is to the induction of teaching staff, granting them one time relaxation and giving them fitment in Scale of pay as per University Grants Commission (for short “UGC”) norms.
1.2. Appointment of Jayashree Narayanan as Principl in charge and her writing Confidential Reports in personal records are subject matter of challenge in other Writ Petitions.
2. Since all Writ Petitions relate to same set of facts, all Petitions were heard together and disposed of by this Common Order. For convenience, the parties will be referred to as per their rank in W.P. No. 5736 of 2000.
3.1. Relevant facts in nutshell are as follows:- Second Respondent – Bharathiar Palkalaikoodam (for short “BPK”) was registered under Societies Registration Act in the year 1986 and sponsored by the Government. It was established with an object to promote Dance, Music, Arts and Crafts in the Union Territory of Pondicherry by providing facilities for rendering and training for such Fine Arts. With this object in view, BPK was visualised and started with four Departments – Music, Dance, Drama and Fine Arts. Second Respondent is governed by the Governing Body viz., Education Minister, Pondicherry as its Chairman, Chief Secretary to Government as Vice Chairman and other Members Director of Art and Culture is the Director-cum-Member Secretary.
3.2. Respondents 3 to 23 were appointed as Instructors in various discipline – Music, Dance and Fine Arts between 1988 to 1991. During 1993, Pondicherry University has granted affiliation for the academic year 1992 – 1993.
3.3. Through advertisement, Petitioners 1 and 2 were appointed as Guest Lecturers on 08.01.1997. Petitioners were so appointed as Guest Lecturers by the then Principal- cum-Member Secretary – Hariharan. The said Hariharan issued a Regularisation order on 12.11.1997 placing Petitioners 1 and 2 on par with UGC prescribed Scale of pay for Lecturers i.e., Rs. 2200 – 4000/-. The Third Petitioner – Suresh Kumar was also appointed by calling for advertisement with effect from 08.07.1999 for teaching vocal music.
3.4. In consideration of representation of teaching staff in BPK, by the Impugned Order dated 21.03.2000, Governing Body formulated a formula for the induction of teaching staff numbering about 21 by suitable categorisation and giving one time relaxation to get the benefit of Scale of pay of Rs. 8000 – 13,500/- subject to certain conditions. Petitioners have chosen to contend that Respondents 3 to 23 were unqualified and appointed on contractual basis and there cannot be fitment in the UGC Scale of pay for Lecturers. According to Petitioners, possessing qualification and good academic record they ought to have been placed above the Respondents as they are better qualified for appointed as Lecturer Grade I. It is averred that Respondents 3 to 23 were made seniors and as such the Impugned Order is in violation of UGC regulations and is liable to be set aside.
3.5. Stating that Petitioners’ appointment was not made by a properly constituted committee on selection as per UGC norms and contending that the appointment of Petitioners cannot be taken to be a regular appointment, Respondents 1 and 2 have filed elaborate Counter Affidavit. According to BPK, the Impugned Order is in accordance with Rules and Pondicherry First Ordinance Governing Academic matters.
3.6. The teaching staff viz., Respondents 3 to 23 have filed separate Counter Affidavits putting forth their respective qualification and contending that UGC guidelines themselves permit appointment of non-qualified persons in the event of non-availability of qualified persons on condition that the non-qualified persons so appointed will have to equip themselves and attain necessary qualification within the stipulated period. The Respondents have further alleged that Petitioners were appointed only as Guest Lecturers and that Appointment Order was passed by the then Principal Hariharan in his individual capacity and the Petitioners, who themselves not fully qualified at the time of their appointment, cannot challenge the Impugned Order, categorisation and providing fitment to teaching staff.
4.1. Challenging the Impugned Order, learned Senior Counsel Mr. R.Muthukumarasamy interalia raised the following contentions:
BPK is the University within the meaning of Section 2(f) of the University Grants Commission Act, 1956 (for short “UGC Act”) and hence governed by UGC Act and regulations and the affairs of BPK is governed by UGC regulations;
The Impugned Order is vitiated as it is contrary to UGC Rules and Regulations for appointment of Lecturers and the Impugned Order is contrary to the conditions of affiliation to Pondicherry University.
It is impermissible to grant time for getting themselves qualified and fixing the pay scale retrospectively with effect from 01.01.1996 at Rs. 8000 – 13,500/- is untenable;
Grant of seniority on the basis of fitment to the Scale of pay is violative of UGC Regulations;
4.2. Mr. T. Murugesan, learned Government Pleader appearing for Respondents 1 and 2 has taken me through the growth of the Institution and submitted that services rendered by Respondents 3 to 23 for the past had been taken into account for their induction by suitable categorisation. It was further submitted that at the instance of the Petitioners, order of appointment by itself is questionable. Learned Senior Counsel argued that Respondents 3 to 23 were categorised, placing them in proper fitment, petitioners cannot challenge the same. It was further submitted that without Pondicherry University and University Grants Commission being made parties to the Writ Petition, any alleged violation of UGC regulations cannot be gone into.
4.3. Learned Senior counsel Mr. G.Masilamani has contended that Respondents 9, 14, 17, 18 to 20, 22 and 23 have requisite qualifications as per provisions contemplated under UGC, AICTE. It was further contended that Writ Petition is not maintainable for non-joinder of necessary parties viz., University Grants Commission and Pondicherry University. Counsel appearing for Respondents have submitted that Respondents possess necessary qualifications for induction by suitable categorisation. Onbehalf of Seventh Respondent Mr. Balan Haridoss and onbehalf of Respondent Nos. 3,6,8 and 10 Mr. V. Ajay Kumar have submitted that those Respondents possess necessary qualifications.
4.4. Learned Counsel Mr. V. Ayyathurai appearing for Respondent Nos. 15,16 and 21 has submitted that Respondent Nos. 15,16 and 21 were under the discipline of Arts and Crafts and they are not concerned with Music Department and hence, the alleged violations of UGC regualtions would not arise.
5. Having regard to the submissions made and contentious points urged, the point arising for consideration is whether the Impugned Order violates UGC Norms and Regulations for appointment of Lecturers?
6.1. For appreciating contentious points, it is necessary to refer as to how BPK grew and the course evolved. As an academic Institution, Second Respondent BPK is a Society registered under the Societies Registration Act in 1986. Its affairs are governed by Governing Body – Education Minister as Chairman, Chief Secretary as Vice Chairman, Secretary to Government, Education Department as Member and other Members of Heads of Government Departments and nominated Members. In 1988, Minister for Arts and Culture was the Chairman.
6.2. In 1988, the Institution – BPK started three discipline – Dance, Arts and Crafts. Three Principals and 15 posts of Instructors were proposed to be created. Advertisements were made in leading dailies. The educational requirements were a pass in S.S.L.C with Diploma in respective faculties. Consolidated quantum of pay was specified to be Rs. 2000/- per month for the post of Principal; in respect of Instructors, the same qualifications were prescribed and consolidated pay was to be Rs. 1000/- per month. At that time, three posts of Principal and nine posts of Instructors were filled up. Some of the Respondents were appointed at that time.
6.3. Initially, two years certificate course was commenced in the year 1988. The duration of course is being two years, students who passed S.S.L.C. were eligible to get admission in those certificate courses. In all three disciplines, courses were started and upto 1990, the same certificate courses went on.
6.4. In the year 1990 – 91, three year Diploma Courses were started. Same set of students, who by then completed two years of certificate course were admitted into the Diploma Courses. Those courses offering Diploma continued upto 1992, by which BPK approached Pondicherry University for affiliation of three year degree courses – Bachelor of Performing Arts and Bachelor of Fine Arts (BPA / BFA). Pondicherry University granted affiliation for the academic year 1992 – 93 and thereafter continuously. Students who were then doing second year diploma courses got admitted to degree courses and took degrees in 1992 and 1993. As such, students who were originally admitted into Certificate Courses continued their education in Music, Dance and Fine Arts and obtained their degrees from the year 1992 – 93 onwards. Respondents 3 to 23 were the teaching staff and responsible in improving academic excellence of BPK during that period.
6.5. As the Institution grew, consolidated pay was also increased. As per recommendation of the Working Committee, Principals of three schools were given consolidated contractual salary of Rs. 2000-60-3000-EB-75- 3200-100-3500 plus current DA plus HRA plus Fixed Medical Allowance, which is the Scale of pay of High School Headmaster Grade I. In the case of Instructors, consolidated pay was fixed at the rate of Rs. 1200-30-1500-EB-40-2040 plus current DA plus HRA plus Fixed Medical Allowance, which is the Scale of pay of Secondary Grade Teachers in Government Schools.
6.6. In consideration of service particulars of one Hariharan, in 1995 he was appointed as Principal of BPK in the pay scale of Rs. 3700-5700/- with effect from 26.10.1995.
6.7. Since Hariharan was appointed as Principal, a proposal was also submitted to Chairman for abolition of posts of three Principals disciplinewise, which were then existing and to redesignate the Principals as Instructors. That proposal has evoked reaction from the persons occupying posts of Principals in the School of Music and Dance and that proposal was dropped. In view of protest, three posts of Principals were redesignated as Heads of Department and Scale of pay for the post of Heads of Department were fixed at Rs. 1640 – 2900/-. The other instructors who continued to be the Instructors were redesignated to be the Lecturers Grade II in the Scale of pay of Rs. 1400 – 2600/- with effect from 01.01.1996. Thus, the services of Respondents 3 to 23 were also regularised with effect from the date of appointment and increments were also given in the Scale of pay.
6.8. In the 11th Meeting of Governing Body of BPK held on 11.07.1995, to strengthen the Organisation, Governing Body proposed to reorder staffing pattern of BPK, so as to promote the Institution as an Institution of Excellence. The Structure of Organisation was ordered in the staffing pattern as Principal; Head of Department for each Departments of Music, Dance, Arts and Crafts; Lecturer. The Governing Body also prescribed qualifications. In the 11th Meeting of Governing Body, it has also considered regularisation of existing academic staff and proposed to obtain opinion of Pondicherry University whether the academic staff are competent to teach degree classes and whether it may be considered for regularization at appropriate levels to be decided.
6.9. The Principal of BPK had written letter to Pondicherry University seeking its opinion for regularisation of pay Scales of teaching staff of BPK. By its letter dated 20.12.1995, enclosing excerpts of its Academic Ordinances, University requested BPK to decide individual cases of its Instructors for redesignating them with UGC Scales of Pay, taking into account their qualification in consultation with the Governing Body. The above narration of facts would show that Respondents, who are Head of Departments and Lecturers Grade II, were engaged in teaching in BPK from 1998 onwards. The Respondents with their teaching and practical experience were mainly responsible for the academic excellence which the Institution has achieved.
6.10. It was at that stage, the then Principal Hariharan has created post of Guest Lecturers. In all three disciplines, after issuing advertisements, First and Second Petitioners were appointed as Guest Lecturers on 08.01.1997. Within a short period of ten months, they were issued regularisation order on 12.11.1997. Third Petitioner – Suresh Kumar was appointed for teaching vocal music with effect from 08.07.1999. Even the appointment of Petitioners as Guest Lecturers and their regularisation are challenged, which we advert to shortly.
6.11. The 12th Governing Body of BPK has prescribed methods of regularisation of teaching staff on par with University and as noticed earlier, Pondicherry University was addressed to get the information regarding regularization. Pondicherry University by its Letter dated 20.12.1995 left the matter to the decision of the Institution stating as follows:
…You are requested to decide the individual cases of your Instructors for redesignating them, with University Grants Commission Scales of pay taking into account the qualification, in consultation with your administration….
Along with its letter, University has sent excerpts of its Academic Ordinances mentioning the minimum qualification for appointment to the post of Lecturers in the faculties of Music and Fine Arts.
6.12. In consideration of the representation of the Respondents and after careful analysis of UGC Norms and educational qualifications prescribed under UGC pattern vis-a-vis possessed by Respondents and experience rendered by them in BPK, Governing Body has formulated a formula for induction of Respondents by suitable categorisation as (A), (B), (C) and (D) and giving one time relaxation to get the benefit of Scale of pay of Rs. 8,000 – 13,500/-. The Impugned Order reads as follows:
CATEGORY “A” :- Candidates possessing PG or any Diploma / Post Diploma from highly reputed institutions with advance study and other attainments of high standard with eight years of teaching experience in BPK.
This category of teaching staff will be equated with PG qualification with JRF/NET/SLET etc.,/Ph.D. for appointment as Lecturer as per UGC norms for whom scale of pay of Rs. 8000 – 13500 will be offered straightway without any relaxation with effect from the date of regular appointment.
CATEGORY “B”:- Candidates possession PG or Degree or Diploma qualification with eight years of teaching experience in BPK with lesser achievements in the respective fields.
This category of teaching staff will be given the scale of pay of Rs. 8000-13500 with effect from the first day of the month following the month in which they completed eight years of service in BPK subject to the conditions that they should acquire the UGC accredited qualifying test of JRF/NET/SLET etc., or Ph.D. within five years of this order failing which no further increments would be given.
CATEGORY “C”:- Candidates possessing Degree or Diploma with less than eight years of teaching experience in BPK.
This category of teaching staff will be given the scale of pay of Rs. 5500-9900 with effect from 01.01.1996 and the next higher scale of pay of Rs. 8000 – 13500 with effect from the first day of the following the month in which they would complete eight years of service in BPK. They should also qualify with PG and NET / SLET etc., or Ph.D within five years from the date of that order failing which no further increments would be given.
CATEGORY “D”:-Candidates possession certificate course of study which cannot be equated with Degree or Diploma and with eight years of teaching experience in BPK.
This category of teaching staff will be given the scale of pay Rs. 5500 – 9000 with effect from 01.01.1996. On acquiring the qualification of Degree of Diploma, they will move to Category “B” and will be given the next higher scale of pay of Rs. 8000 – 13500 prospectively with effect from the date of such order and subject to the conditions for increments beyond five years prescribed therein….
On the basis of above categorisation, the fitment of teaching staff in various departments in BPK was ordered as stated in the Impugned order. Date of appointment was taken into account for classification under respective categorization and fitment. Fitment was ordered for Respondents 3 to 23 – Third Respondent was placed in Category “A”; Fifth Respondent was placed in Category “C” and R-23 in Category “D” and all other Respondents were placed under Category “B”. The seniority of all the teaching staff in the Scale of pay of Rs. 8000 – 13500/- was ordered to be drawn interse with reference to dates of grant on that Scale of pay to the respective individuals.
7. The Impugned Order categorising Respondents and granting them time to acquire the UGC prescribed qualification is assailed contending that it is not in accordance with UGC norms and regulations. Learned Senior Counsel Mr. R.Muthukumarasamy has contended that BPK is affiliated to Pondicherry University and that appointment of Lecturers in BPK is governed by UGC norms and regulations. It was further submitted that when University Regulations prescribed minimum qualification for the post of Lecturers along with clearance of eligibility test – NET / SLET as essential qualification for appointment as Lecturer, Governing Body was not right in granting time to acquire UGC accredited qualifications. Learned Senior Counsel further assailed the Impugned Order contending that in case of non acquiring prescribed qualification, postponement of further increment is totally in violation of UGC norms and unsustainable. Drawing attention of Court to UGC regulations, it was contended that no person shall be appointed to a teaching post in the University or affiliated college, who does not fulfill the minimum qualifications and other conditions of service as indicated in the Notification.
8. As per Section 2(f) of the UGC Act, “University” means, a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this Act. Section 26(1) of the UGC Act empowers UGC to make regulations by issuing Notifications consistent with the Act and the Rules made thereunder. Under Section 26(1)(e) of the UGC Act, the Commission may issue Notifications defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instruction.
9. In exercise of powers conferred by Clause (e) of Sub-section (1) of Section 26 read with Section 14 of UGC Act, University Grants Commission has issued Notification No. F.1-11/87(CPP) dated 19.09.1991. As per Schedule-I of the said Notification, the following minimum qualifications were prescribed for appointment as Lecturer in the discipline of Music:
…Good academic record with atleast 55% marks or an equivalent grade at Master’s Degree level in relevant subject or an equivalent degree from an Indian / Foreign University.
Candidates besides fulfilling the above qualifications should have cleared the eligibility test for Lecturers conducted by UGC, CSIR or similar test accredited by the UGC.
A traditional or a professional artist with a highly commendable professional achievement in the subject concerned….
10. It is relevant to note that excerpts of Pondicerry University First Ordinance Governing Academic Matters contains identical qualifications for being appointed to the post of Lecturers in the faculties of Music and Fine Arts.
11. In 1998, by its Notification No. F.3-1/94 (PS) dated 24.12.1998, UGC has prescribed the following qualifications for the post of Lecturers in the faculties of Music and Fine Arts:
…Good academic record with at least 55% of the marks, or an equivalent Grade of B in the 7 point scale with latter Grades O,A,B,C,D,E & F at the Master’s degree level, in the relevant subject or an equivalent degree from an Indian / Foreign University.
Besides fulfilling the above qualifications, candidates should have cleared the eligibility Test (NET) for Lecturers conducted by the UGC, CSIR or similar Test accredited by the UGC….
A traditional or a professional artist with a highly commendable professional achievement in the concerned subject….
12. A fair reading of the above it is clear that taking note of the above qualifications prescribed by UGC, in the Impugned Order, BPK has stipulated that the candidates should acquire UGC accredited qualifying test of JRF/NET/SLET within five years of the Impugned Order, failing which no further increments would be given.
13. As per Clause 3.1 of Notification dated 24.12.1998, no person shall be appointed to a teaching post in the University or affiliated College recognised under Clause (f) of Section 2 of UGC Act, if he / she does not fulfill the minimum qualifications and other conditions of service as indicated in the Notification.
14. Learned Senior Counsel Mr. R.Muthukumarasamy has contended that when UGC prescribed Norms and when Respondents have not satisfied the prescribed qualifications, as per Clause 3.1 of the Notification, categorisation of Respondents as Lecturers and providing fitment in the Pay Scale of Rs. 8000 – 13,500/- with effect from the date of completion of eight years of service is in violation of UGC Norms and unsustainable.
15. In response to the above contentions, learned Government Pleader has advanced arguments contending that BPK is not governed by UGC Regulations and Norms. Learned Government Pleader further submitted that Second Respondent Society is governed by a Governing Body, which is its Supreme Authority and it decides its own governance and reference to UGC norms and regulations cannot be of any avail to the Petitioners.
16. The contention of the learned Government Pleader cannot be countenanced. Having been affiliated to Pondicherry University, BPK cannot contend that it is governed by a Governing Body and is not governed by University Regulations. As noted earlier, in December 1995, BPK itself had written to Pondicherry University, seeking clarification regarding regularisation of pay Scales of the teaching staff of BPK. Enclosing excerpts of University’s Academic Ordinances, Pondicherry University has requested BPK to decide individual cases of Instructors for redesignating them with University Grants Commission’s Scales of pay, taking into account the qualifications of the individuals, in consultation with the Administration. Having so sought for clarification to Pondicherry University, soliciting its views on regularisation of Pay Scales of the teaching staff, the Second Respondent – BPK is not right in contending that it is not governed by UGC regulations.
17. Pondicherry University is governed by First Ordinance Governing Academic Matters, which more or less adopts the UGC Regulations. The said Ordinance provides for minimum qualifications for appointment to the post of Lecturer in the faculties of Music and Fine Arts, which is identical as that of 1991 Notification of UGC. (Vide para 9 referred to above)
18. It will bear repetition to state the minimum qualifications prescribed for appointment to the post of Lecturer in the faculty of Music and Fine Arts, as per First Ordinance Governing Academic Matters which is as follows:
Minimum qualifications for appointment to the posts of Lecturer in the Faculties of Music and Fine Arts:- (a) Good academic record with at least second class (C in the seven point scale) Master’s degree in a relevant subject or an equivalent degree or diploma recognised by the University; and
(b) Two years’ research or professional experience or evidence of creative work and achievement in his / her field of specialisation or a combined research and professional experience of three years in the field as an artist of outstanding talent.
OR
A traditional or a professional artist with highly commendable professional achievement in the subject concerned….
The Ordinance also contains enabling Provision in case candidates possessing requisite qualification are not available. The proviso reads as under:
…Provided further that if a candidate possessing a M.Phil degree or equivalent research work is not available or is not considered suitable, a person possessing a good academic record may be appointed provided he / she has done research work for at least one year or has practical experience in a research laboratory / organisation on the condition that he / she will obtain M.Phil degree or recognised degree beyond Master’s degree or give evidence of research work of equivalent high standard within eight years of his / her appointment failing which he / she will not be able to earn future increments until he / she fulfills these requirements….
19. In categorising teaching staff, the Governing Body of BPK has incorporated above qualifications and the Proviso in the First Ordinance Governing Academic matters. As per Proviso, if a candidate possessing M.Phil degree or equivalent research work is not available, candidate who has practical experience in a research Laboratory / Organisation can be appointed on condition that he / she will obtain the high standard within eight years of his / her appointment, failing which he / she will not be able to earn future increments until he / she fulfills these requirements. The emphasis is upon practical experience in a research Laboratory / Organisation. As noticed earlier, the Respondents have been teaching in BPK from 1988 onwards and were responsible for achieving academic excellence in the Institution. Excellence in Music / Fine Arts / Dance could be gained only by practice and teaching experience. In consideration of experience in BPK, one time relaxation had been given to teaching staff for their categorisation, prescribing eight years of teaching experience in BPK with achievements in respective fields. It cannot be said that the Impugned Order is in violation of Rules Governing Academic Matters of Pondicherry University, to which BPK is affiliated.
20. Power of judicial review while dealing with constitutionality and / or applicability / legality of a statue and / or the rules and regulations framed thereunder is limited. {Vide Allahabad Development Authority and Anr. v. Sabia Khan and Anr. }.
21. It is open to BPK to provide for one time relaxation for categorisation and fitment in respect of individuals. In regard to recruitment process to Subordinate Judiciary and conducting Written Examinations / Interview, dealing with power of the High Court in the decision reported in K.H. Siraj v. High Court of Kerala and Ors. , the Supreme Court has held that it was open to the High Court (Kerala) to prescribe minimum pass mark for written and oral examination and rule in question confer power upon High Court to evolve as it deem fit for selection. Holding that instructions can always supplement the rules which may not deal with every aspect of the matter, the Supreme Court has held as under:
…Thus it is seen that apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe benchmarks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the rule with a view to implement them by prescribing relevant standards in the advertisement for selection. Reference may be made to the decision of this Court in State of Gujarat v. Akhilesh C. Bhargav ….
The above decision is applicable to the case in hand.
22. Main contention of Petitioners is that drawing interse seniority with reference to dates of grants of scales of pay i.e., on date of completion of eight years of teaching staff is not in accordance with UGC Rules 1998 and the Impugned Order is vitiated for non-compliance of UGC Rules. The above contention cannot be acceded to for more than one reason viz.,:
In 2000, BPK was funded only by Government of Pondicherry. Vide its letter dated 06.03.2000, UGC had written to Pondicherry University stating that BPK is not eligible to receive Central Assistance in terms of the Rules framed under 12-B of the UGC Act 1956.
In 1995, Pondicherry University itself had written letter requesting BPK to decide individual cases of its instructors for redesignating them.
23. Pondicherry University is governed by First Ordinance Governing Academic Matters. For deciding the issue whether the Impugned Order is in consonance with academic matters of Pondicherry University or with UGC Regulations, neither Pondicherry University nor UGC was made a party. Unless UGC and Pondicherry University have been made parties, the contention that the Impugned Order is in violation of UGC regulations cannot be determined. Without impleading Pondicherry University or UGC, the Impugned Order cannot be challenged that it violates UGC Regulations and Norms.
24. The Petitioners have challenged the categorisation of the teaching staff, who are in the institution right from 1998. As noticed earlier, First and Second Petitioners were appointed in 1997 as Guest Lecturers. In the 11th Meeting of Governing Body of BPK held on 11.07.1995, the Governing Body has taken vital decisions prescribing re-ordering staffing pattern. In that meeting, Governing Body has not taken any decision as to appointment of Guest Lecturers. Governing Body does not have power to take any decision as to appointment of Guest Lecturers. The 12th Governing Body resolved to recruit all future teaching posts of BPK as per qualifications prescribed by UGC. Even in the 12th Meeting, the Governing Body does not seem to have taken any decision as to appointment of Guest Lecturers. While so, at the instance of the then Principal Hariharan, First and Second Petitioners were appointed as Guest Lecturers.
25. Onbehalf of Petitioners, it was stated that the First and Second Petitioners were appointed only after publication of advertisement in the Southern Edition of Indian Express. It was further stated that there was a Selection Committee comprising of the Secretary (Education) as the Chairman with Director(Art and Culture) and Principal (BPK) as Members and two other experts. The Selection Committee selected three candidates possessing requisite qualification, out of which First and Second Petitioners were appointed as Guest Lecturers in January 1997. The Third Petitioner was appointed in 1999. How the Petitioners were appointed as Guest Lecturers and came to be regularised is at stake. The appointment of Petitioners is alleged to be at the instance of erstwhile Principal Hariharan, against whom certain grave misconduct and abuse of powers is alleged, which are subject matter of departmental proceedings and other writ petitions. Suffice it to note that the First and Second Petitioners were appointed as Guest Lecturers and later regularized and their appointment is not regular mode of appointment. While so, the Petitioners cannot challenge the act of the Institution giving one time relaxation to the teaching staff, who were already in the Institution from 1988. When the appointment of Petitioners itself is questionable, the Petitioners cannot seek to equitable relief invoking Article 226 of the Constitution of India.
26. In 1992 – 93, the First Batch of candidates with Degree – BPA/BFA came out successful and thereafter students have come out successfully with degrees. The Institution has been able to accomplish excellence only as the result of teaching and contribution made by the teaching staff – Respondents 3 to 23 for a long time. The Institution was able to achieve the same by the contribution of Respondents 3 to 23, who have been working with meagre consolidated pay. By the categorisation of the teaching staff, BPK only seeks to recognise their long service. However, merit was not sacrificed altogether. Those of the Respondents who have not qualified with accredited NET / SLET have been directed to acquire the qualification giving them time. While so, it is unjust and unfair to the Petitioners, who have entered the Institution in 1997 after it had taken its shape, to challenge such recognition being afforded to Respondents 3 to 23 by categorising them and giving them fitment.
27. In August 1998, one Vijayalatchoumy was appointed as Lecturer Grade I in the scale of pay of rs. 2200-4000/- for teaching Tamil language with effect from 03.08.1998. The Third Petitioner was appointed for teaching vocal music with effect from 08.07.1999 after advertising the vacancy through dailies. One Sunitha was appointed on 14.07.1999 as Lecturer in Dance Department in the same Scale of Pay after advertising the vacancy. It is relevant to note that the said Vijayalatchoumy and Sunitha have not challenged the Impugned Order and are satisfied with their placement in their departments.
28. It is not open to the Petitioners to challenge one time relaxation and formula for categorisation and fitment in suitable categories. Since it is held that the Impugned Order cannot be challenged, it is not necessary to consider individual cases of Respondents and their qualifications. The Administration has satisfied as to the qualification of individual Respondents and the judicial review of the same is very limited. The Petitioners have not shown that the Impugned Order is in violation of Rules. Hence, W.P. No. 5736 of 2000 is liable to be dismissed.
29. Mr. V. Ayyadurai, Learned Counsel appearing for Respondent Nos. 15,16 and 21 has contended that BPK is a Registered Society and that Writ Petition is not maintainable against BPK. Learned Counsel has placed reliance upon the decision reported in K. Marappan v. The Deputy Registrar of Co-operative Societies . It was further submitted that as laid down in the above decision, no violation of any statutory public duty has been established by the Petitioners and the Writ Petition is not maintainable.
30. BPK is a Society registered under the Societies Registration Act. The said decision relates to Society registered under Co-operative Societies Act. BPK is funded by the Pondicherry Government and an instrumentality of the State and Writ Petition is certainly maintainable. In the decision reported in Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R.Rudani , the Supreme Court has held that issuance of Writ of Mandamus is confined to Statutory Authority and instrumentalities of State. Holding that it can be issued to any other person or Authority performing Public duty, the Supreme Court has held as follows:
…Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “any person or authority” used in Article 226 are therefore not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute….
As held by the Supreme Court, decisions creating legal right, duty relationship between Staff and Management, Article 226 of the Constitution could be invoked to issue writs in the nature of prerogative writs.
31. The challenge in W.P. No. 6 of 2000 is the appointment of Jayashree Narayanan as Principal in charge, after shifting Hariharan as Full Time Officer on Special duty to look after the work in connection with Constitution of State Iyal Isai Nataka Mandram and State Nunkalai Kuzhu / Mandram. The appointment of said Jayashree Narayanan is opposed contending that she does not possess the qualification and she is not competent to hold that post. It was submitted that said Jayashree Narayanan was fully qualified and she has studied Bharatha Natyam for nearly 9 1/2 years, which is more than one can acquire M.Phil. It was further submitted that Jayashree Narayanan was conferred Kalaimamani Award in 1997 and various Academies awarded her Title and that she was running Dance school before her appointment in the Institution and was rightly appointed as the Principal incharge and subsequently, the post was redesignated as Head of Department. Shifting of the then Principal Hariharan to look after the work in connection with Constitution of State Iyal Isai Nataka Mandram and State Nunkalai Kuzhu / Mandram is the subject matter of Writ Petitions in W.P. Nos. 6048, 6049 and 4879 of 2001, which were dismissed by a separate order of this Court. The power of Governing Body to post appropriate persons as Head of Department cannot be challenged by the Petitioners. W.P. No. 6 of 2000 has become infructuous since the said Jayashree Narayanan is said to have left BPK.
32. W.P. Nos. 29876 and 29877 of 2002 have been filed by Petitioners 1 and 2 seeking direction forbearing Jayashree Narayanan – Principal in charge from writing the confidential reports. These Writ Petitions proceed on the premise that Principal in charge and Music Department incharge / Lecturer Grade I are not qualified to hold the post. The Petitioners sought for Writ of Certiorari to quash the Proceedings dated 26.07.2002 and restraining Principal in charge and Music Department in charge from writing confidential reports. Writing confidential Reports is vested with the administration for proper and effective control over the employee. For the foregoing discussions, the Petitioners cannot challenge the Principal and Music Department writing Confidential Reports.
33. For the foregoing discussions, all the Writ Petitions are liable to be dismissed and accordingly dismissed. No costs. Consequently, the connected W.M.P. No. 8672 of 2000, W.P.M.P. Nos. 48420 to 48423 of 2002 are closed.