IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/03/2006
CORAM
THE HON'BLE MR.JUSTICE D.MURUGESAN
W.P. No.17630 of 2005
and
W.P.M.P.Nos.19894 & 19151/2005
and
W.V.M.P.Nos.1189 and 2080/2005
Dr.S. Arulmani .. Petitioner
-Vs-
1. Government of Tamil Nadu rep.,
by its Secretary and Commissioner
Department of Higher Education
Fort St. George, Chennai.
2. The Director of Collegiate Education
College Road, Chennai.
3. The Registrar
Manonmaniam Sundaranar University
Tirunelveli.
4. Regional Director of Collegiate
Education, Tirunelveli Region
Tirunelveli.
5. The Secretary
Kamaraj College, Toothukudi.
6. Dr. J. Mohan Raj ... Respondents
Writ Petition filed under Section 226 of the Constitution of India
praying this Court to issue a Writ of Certiorarified Mandamus, calling for the
records of the 5th respondent pertaining to Ref:31/2005 dated 21.4.2005 and
quash the same and direct the 5th respondent to promote the petitioner as
Principal.
!For petitioner :: Mr.B.Ravi
for Mrs. Hema Sampath
^For Respondents
1,2, & 4 :: Mrs.G. Kavitha
Government Advocate
For 3rd respondent:: Mr.C.K.Chandrasekaran
For 5th respondent:: Mr.Vijay Narayan
Senior counsel for Mr. Rathina Ashokan
For 6th respondent :: Mr.K.Venkaeswaran
:ORDER
The petitioner is working as Reader and Head of the Department of
Tamil in Kamaraj College, Thoothukudi, which is aided non minority educational
institution( hereinafter called The College).As the post of Principal(Gr.I)
became vacant on 1.06.2005, the college issued a circular dated 21.3.2005
inviting applications from the eligible Selection Grade Lecturers/Readers with
Ph.D. and the said circular reads as under:
Ref:31/2005 Circular 21.3.2005
Sub: Appointment as Principal-Applications called
For-regarding.
Ref: G.O.Ms.No.111( Hr.Edn.Dept)dated 24.3.1999.
Applications are invited from the eligible
Selection Grade Lecturers/Readers of our
College with Ph.D., for appointment as
Principal in our college
Applications in duplicate along with Bio-data
and Xerox copies of certificates/testimonials
must be addressed to the Secretary and routed
through the Principal, Kamaraj College. The
applicants are also requested to submit a
brief note on their visions on the future
developments of Kamaraj college for the next
10 years period.
Eligibility for Principal (Gr.I)
i.A masters degree with atleast 55% of marks
or its equivalent Grade B in the seven point scale.
ii.Ph.D., or equivalent qualification,
iii.A minimum total experience of 15 years of
Teaching/Research in Universities/Colleges
and other institutions of Higher Education.
The last date for receiving applications in
Our Principals office is 31.3.2005.
2. Nine candidates applied for the said post and the College prepared
a list of seniority in which the petitioner was shown as the senior most. The
6th respondent by name Dr.J. Mohanraj was shown as 5th in the seniority. The
college committee which interviewed the candidates consisted of the following
members:
1. Thiru V. Ilango President
2. Dr. T.Rajasekaran Vice-President
3. Thiru V. Kanagavel Secretary
4. Thiru M. Rajamani Joint Secretary
5. Prof.M.Ganesan Principal
6. Prof.S. Murugaraj University
representative
7. Prof.P.Chelliah staff representative
8. Prof.S. Stephen
Dharmaraj Staff representative
9. Thiru S. Arumuga-
perumal Staff representative
3. In its meeting held on 21.4.2005 the college committee resolved to
appoint Dr.J.Mohanraj, the 6th respondent herein as Principal with effect from
1.6.2005. However, the University representative had made dissent note for
the appointment. Pursuant to the resolution of the college committee, the 6th
respondent was issued with order of appointment on the same day.
4. In challenging the above proceedings, Mr.R.Ravi, learned counsel
appearing for the petitioner has submitted the following:
1)In exercise of power under Section 12 and 26 of the University Grants
Commission Act, 1956,regulations were framed prescribing educational
qualifications for the post of Principals in Colleges as well the constitution
of Committee to select the candidate for that post. The said regulation have
statutory force under Section 28 of the Act and therefore, they are applicable
and bin ding on the College. On the basis of the recommendations of the UGC,
the Government of Tamil Nadu had issued G.O.Ms.No.111 Higher Education (H1)
Department dated 24.3.19 99 prescribing the educational qualifications for the
post of Principal and the constitution of the committee. The above Government
order had been adopted by the University and consequently binding on the
college. This would be evident from the circular itself wherein a reference
has been made to the said Government Order and the college has to strictly
follow the directions contained therein not only regarding qualification of
the candidates but also in constituting the selection committee in accordance
with the said Government Order. As the constitution of the committee, namely
“The College Committee” is not in accordance with the Government Order, the
entire selection process is vitiated and consequently, the appointment of the
6th respondent is illegal.
2) In any event,the selection and appointment of the 6th respondent is
unsustainable as there is no transparency in the process of selection.
Inasmuch as the petitioner was shown as the senior most person in the
seniority list, no reason is given in the resolution to overlook the
petitioner and consequently, prefer and select the 6th respondent as
Principal. The resolution of the college committee is silent on this aspect
and in the absence of disclosure of reasons, the selection of the 6th
respondent is unsustainable.
5. In reply to the above submissions, Mr.Vijay Narayan, learned
senior counsel appearing for the 5th respondent college had submitted the
following:
a. The recommendations of the UGC in respect of the constitution of
the Committee to select the candidate for that post of Principal is not
binding on the college as they are only recommendatory in nature. Further,
the learned senior counsel submitted that those recommendations were made only
for the purpose of revision of pay scales of college and University teachers
and other staffs of the college and Universities. In the circumstances, the
Government Order dated relating to the constitution of the committee is not
applicable to the college. The Government of Tamil Nadu considered those
recommendations and decided to implement the revised scales of pay in exercise
of power under Article 162 of the Constitution of India. Inasmuch as the said
order is only an executive order, it cannot have overriding effect on the
provisions of the Tamil Nadu Private Colleges (Regulation) Act 19 76
(hereinafter referred to as The College Act and the Mamonmaniyam Sundaranar
University Act (hereinafter referred to as The University Act). Section
14(b) of the said Act empowers the college committee constituted in accordance
with Section 11 of the Act read with Rule 8 of the Rules to appoint teachers
and other staffs in the college. As per Rule 8 of the Tamil Nadu Private
Colleges (Regulation) Rules, 1976, educational agency of every college, other
than the minority college shall constitute a college committee and the
committee constituted in accordance with the said Rule, has the power to
select the candidates. The college committee is empowered and well within the
power to select and appoint a candidate of it choice, however, subject to the
educational qualifications and other eligibility norms prescribed by the UGC.
The learned senior counsel would therefore submit that 6th respondent is
eligible and fully qualified and his selection and appointment by the college
committee constituted in accordance with the provisions of the the College
Act and Rules made thereunder is valid and in accordance with law.
b) He would also submit that Section 15 of the University Act,
empowers the University to make regulations, statutes or ordinances specifying
the qualifications required for the appointment of teachers and other persons
employed in private colleges. Chapter XVII of the statute of the University
prescribes the educational qualification as well the constitution of the
committee and the selection of a candidate made by such committee in respect
of the candidate who has possessed the qualification prescribed thereunder is
valid.
c) He would further submit that the college committee, having satisfied with
the qualification and merit and ability and being an expert body in academic
field, resolved to select the 6th respondent and such decision cannot be the
subject matter of review by this Court.
d) He would further submit that in any case, the selection of the 6 th
respondent requires approval from the University. So far the University has
not considered the appointment of the 6th respondent for approval and
therefore, the Writ Petition is premature and consequently, it is liable to be
dismissed.
6. I have given my careful considerations to the respective
submissions. The following question arises for consideration:
1) Whether G.O.Ms.No.111 Higher Education
(H1) dated 24.3.1999 have statutory backing
of “the Central enactment made in exercise
of the power under Entry 66 of Union List
of VII Schedule and is binding on the college?
(2) Whether the power of the college committee
to select a candidate for the post
of Principal could be traced to the
the provisions of the Tamil Nadu
Private Colleges(Regulation) Act and
the Rules made thereunder as well
as the provisions of the Manonmaniam
Sundaranar University Act made in exercise
of power under Entry 25 of the concurrent
list of the VIIth schedule?
3) Whether selection of 6th respondent is
liable to be set aside on the ground that
there was no transparency in selection
process?
4) Whether Writ Petition is premature?
7. Points 1 and 2: Entry 66 of Union List Schedule VII of the
Constitution of India read as follows:
Coordination and determination of standards
in institutions for higher education or
research and scientific and technical
institutions:
8. The Parliament is vested with exclusive authority to enact law in
regard to co-ordination and determination of standards in institutions for
higher education or research and scientific and technical institutions.
Considering the growth of number of Universities, it was felt that
constitution of commission was necessitated not only for determination of
standards in institutions for higher education or research and scientific and
technical institutions but also to allocate and disburse grants. The
University Grants Commission Act is essentially intended to make provisions
for the Coordination and determination of Standards in Universities. It is
Intra vires and is covered under Entry 66 of List I of VIIth Schedule. The
scope and power of the University Grants Commission came up for consideration
before the Apex Court in UNIVERSITY GRANTS COMMISSION ETC., VS SADHANA
CHAUDHARY AND OTHERS ETC., ( JT 1996(8) SC 234) and in para 10 it is observed
as follows:
“The requirement regarding clearing
the eligibility test for appointment
on the post of Lecturer as prescribed
by the UGC under the 1991 Regulations
came up for consideration before this
Court in University of Delhi v.Raj
Singh and others JT 1994(6)SC 1.After
taking note of the report of the National
Commission on Teachers II, the Mehrotra
Committee report and the recommendations
of the vice-Chancellors’ conference held
in 1989, the Court has observed:-
“It is very important to note that a
duty is cast upon the Commission(the UGC)
to take ‘all such steps as it may think
fit for the determination and maintenance
of standards of teaching’. These are
very wide ranging powers. Such powers,
in our view, would comprehend the power
to require whose who possess the educa-
tional qualifications required for hold-
ing the post of lecturer in Universities
and colleges to appear for a written
test, the passing of which would establish
that they possess the minimal proficiency
for holding such post. The need for such
test is demonstrated by the reports of
the commissions and committees of edu-
cationists referred to above which take
note of the disparities in the standards
of education in the various Universities
in the country. It is patent that the
holder of a postgraduate degree from one
University is not necessarily of the same
standard as the holder of the same
postgraduate degree from another University
That is the rationale of the test
prescribed by the said Regulations”
9. Going through the scheme of the Act, it is apparent that the
commission will have the power to recommend to any University the measures
necessary for reform and improvement of University education and to advise the
University concern upon the action to be taken for the purpose of implementing
such recommendation. It will act as an expert body also to advise the Central
Government on problems connected with co-ordination of facilities and
maintenance of standards in Universities. The functions of the commission
established under Section 4 of the Act are enumerated under Section 12 of the
Act.
10. In terms of Section 12(d) the Commission could recommend to any
University the measures necessary for the improvement of University Education
and advise the University upon the action to be taken for the purpose of
implementing such recommendation. Insofar as the standard of teaching and
examinations in the University recognized by the Commission, such University
may be required by the Commission to furnish it with such information as may
be needed relating to financial position of the University or the studies in
the various branches of learning undertaken in that University, together with
all the rules and regulations relating to the standards of teaching and
examination in that University in respect of each of such branches of learning
in terms of Section 12(i) of the Act.
11. The Commission is also empowered to make regulations under
Section 26 which are inconsistent with the Act as well the rules made under
Section 25. Section 26(1)(e) relates to the power of the commission to make
regulations specifying the terms and conditions of the service of the
teachers, defining the qualifications that should ordinarily be required of
any person to be appointed to the teaching staff of the University having
regard to branches of education in which he is expected to give instructions.
12. In view of the fact that the University is recognized by UGC, the
regulations framed by UGC is binding on the University. The question as to
whether the UGC Act has enacted only for the purpose of making grants to
various institutions governed by it came up for consideration before the
Supreme Court in the judgment reported in BHARATI VIDYAPEETH VS STATE OF
MAHARASHTRA (2004(11) SCC 755 and in para 24 of the judgment the Supreme Court
has held as follows:
Learned counsel appearing for the States
very strenuously urged that the UGC Act
is only for the purpose of making grants
to various institutions governed by it
and it was not an authority which would
create a University and give a special
status to it so as to keep it out of the
control of the University or the State
where it is located. This argument ignores
the provisions of the enactment and
particularly those to which we have
adverted to just now, for such insti-
tutions are recognised or granted deemed
status for the maintenance of the standards
in the institutions and for coordinating
the teaching in universities which is a
higher purpose than merely giving grants
and with that object, the enactment is
made. We do not think it could be confined
only to making of grants as has been
contended by the respondents. This arguments
therefore, needs to be rejected”
13. Though the said judgment arose in respect of deemed universities,
the law laid down by the Supreme Court is more fully applicable to the
University recognized by UGC and the colleges affiliated to such Universities.
14. Insofar as the prescription of the minimum educational
qualification, the UGC vests with the power under Section 26(1)(e) to make
regulations. To this extent, there cannot be any dispute as to the minimum
educational qualification and the eligibility fixed by the UGC to be equally
adopted and implemented by the University.
15. In exercise of such power, the University Grants Commission (
Minimum Qualifications required for appointment and career Advancement of
Teachers in Universities and Institutions affiliated to it) Regulations, 2000
(hereinafter called “The Regulations” ) was enacted. Clause 1.1.0 and 1.2.0
relating to the educational qualifications for the post of Principal which are
as follows:
1.1.0Principal (Professors Grade)
1)A Masters Degree with atleast 55% of
Marks or it equivalent grade of B in the
7 point scale with latter grade O,A,B,C
D,E and F.
2)Ph.D. or equivalent qualification;
3)Total experience of 15 years of teaching/
Research in Universities/colleges and other
Institutions of higher eduction.
1.2.0Principal (Readers Grade)
1)A Masters degree with atleast 55% of the
Marks or its equivalent grade of B in the
7 point scale with latter grades O,A,B,C,
D,E and F
2)Ph.D. or equivalent qualification;
3)Total experience of 10 years of teaching/
Research in Universities/Colleges and other
Institutions of higher education.
16. In the same regulations, the Constitution of selection committee
for the post of principal is also prescribed in 3.5.0. which is as follows:
1)Chairperson of the Governing Board as
Chairperson;
2)One member of the Governing Board to be
Nominated by the Chairperson
3)Two Vice-Chancellors nominees, out of
Whom one should be an expert;
4)Three experts consisting of the Principal of a college, a Professor and an
accomplished educationist not below the rank of a professor ( to be nominated
by the Governing Board) out of a panel of experts approved by the
Vice-Chancellor.
17. The Tamil Nadu Private Colleges(Regulation) Act 1976 and
Mamonmaniyam Sundaranar University Act, 1990 were enacted by the State
Government in exercise of the power under Entry 25 of Schedule VII of the
Concurrent List. In terms of Section 11 aided non-minority college shall form
a Committee. Section 14(1)(b) relates to the power of the college committee
to appoint teachers and other staffs. Constitution of the college committee
is prescribed under Rule 8 of the Tamil Nadu Private Colleges(Regulation)
Rules, 1976. The petitioner has questioned the selection of the 6th
respondent for the post of Principal on the ground that the selection
committee namely, the college committee which interviewed the candidate was
not in accordance with the committee prescribed under UGC regulations. In
this context, it must be seen as to whether the UGC is empowered not only to
prescribe the educational qualification for teachers but also prescribe the
constitution of committee to interview the candidate.
18. It appears that the Government of India constituted Rasthogi Committee to
recommend the revision of pay scales of College and University Teachers and
other officers of Colleges and Universities. Certain recommendations were
made by the Committee and the same were accepted by UGC. The Government of
India also accepted the recommendations of the UGC and decided to implement
the revision of pay scales. The Government of India also agreed to provide
financial assistance to the State Governments for implementing the revised
scales subject to certain conditions. This is obvious from the first para of
the Government Order Ms. No.111 dated 24.3.1999.
“The Rasthogi Committee appointed by the Government of
India recommended revision of Pay scales of college and
University Teachers and other Officers of Colleges and
Universities which was accepted by the University Grants Commission.
The Government of India decided to accept the recommendations of the University Grants Commission and implement the revision of Pay with effect from 1st January,1996. The Government of India have agreed to provide financial assistance to the State Governments for implementing the revised pay scales subject to the following conditions"
19. On a careful consideration, the Government of Tamil Nadu also
decided to implement the revision of pay scale. The decision of the State
Government in para 2 of the Order states as follows:
The Government after careful consideration
of the scheme have decided to implement the
revised scales of pay as recommended by the
Government of India with effect from 1st
January,1996
20. The Government infact ordered the coverage of the scheme as on
1st January,1996 relating to Pay Scales, Dearness Allowance and other
benefits, counting of past service, payment of arrears, recruitment and
qualification. Insofar as the qualifications are concerned, the Government
directed that Direct recruitment to the post of Lecturers/Principals shall be
in accordance with the UGC guidelines given in Annexure II. It also ordered
the conditions for the implementation relating to probation and confirmation,
Incentives for Ph.D.,/M. Phil, career advancement scheme and age of
superannuation.
21. Insofar as the qualification for the post of Principal, the
Government directed the same educational qualifications as well the
constitution of committee for selecting the candidate prescribed under
regulation 1.1.0 and 1.2.0 and 3.5.0.
22. Coming to the Manonmaiam Sundaranar Act, Section 43 relates to
the condition of service of officers, teachers and other persons employed in
the University, particularly relating to appointment procedure for selection
and pay and allowances.
23. Chapter XVIII of the Statute of the University, relates to
service conditions of the establishment. Statute 2 relates to the kinds of
appointment and the applicability of the Statutes. It refers only to the
teachers and other persons employed in the University. Statute 3 relates to
classification of service. Stature 4 relates to creation of non-teaching
posts, the mode of Recruitment, reservation, criteria for promotion, selection
committee, qualification, age etc.,
24. Appendix I relates to method of recruitment and qualifications
prescribed for various teaching and non-teaching posts in the University.
Though qualification is prescribed for Professor, Reader, Lecturer, Registrar
and Controller of Examinations, no qualification is prescribed for the Post of
Principal. Even for the post of Professors, the University has adopted only
UGC norms.
25. Appendix II relates only to the qualification for non-teaching
posts. A perusal of Section 43 read with Appendix I and II shows that they
relate only to teaching and non-teaching staff employed in the University and
not the colleges affiliated to the University.
26. The University has not provided any minimum educational
qualification for the post of Principal and also the constitution of the
committee apparently on the ground that they have been prescribed by the
regulations framed by UGC. Hence, reliance placed by the learned counsel
appearing for the respondent on the provisions of Manonmaniam Sundaranar
University Act cannot be accepted.
27. Coming to the provisions of Tamil Nadu Private Colleges(
Regulation) Act, under Section 11, an aided non-minority institution shall
form a college committee. The function of the college is enumerated under
Section 14(b) of the Act. Section 14(1)(b) of the Act contemplates the
functions of the college committee as well the responsibility of the
educational agency to appoint teachers and other staffs which selecting the
candidates, the College shall follow the norms relating to the eligibility and
qualifications prescribed by UGC.
28. It is the case of the 5th respondent that the college committee
was constituted in accordance with Rule 8 of the Rules which interviewed the
candidates for the post of Principal. It is also the case of the 5th
respondent that Tamil Nadu Private Colleges (Regulation) Act,1976 was enacted
by Parliament under Article 357(1)(a) of Constitution of India and
consequently, it was made in exercise of the power conferred by Section 3 of
the Tamil Nadu State Legislation ( Delegation of Powers) Act, 1976. The
source of power is traceable to Entry 25 List III of Schedule VII. Hence the
college committee vests with the power to select and appoint the candidates.
29. A combined reading of Section11 and 14(b) of Tamil Nadu Private
Colleges(Regulation) Act and Rules shows that they are not inconsistent with
Sections 12 and 26(e) of the UGC Act and they operate in different field.
Sections 11 and 14(b) and Rule 8 empowers the College Committee to make
appointment. The power of the College Committee to make appointment to the
teaching post as contemplated under Section 1 4(b) of the Act cannot be
extended to constitute a selection committee to select the candidate as the
power is conferred on UGC. Section 12 read with 26(e) relates to the power of
UGC to prescribe qualification of candidate to be appointed as teachers. In
the event, the UGC makes regulations prescribing qualification, the same shall
be binding on the University and the colleges affiliated to such University.
30. In this context, it is to be seen that the UGC has made the
University Grants Commission (minimum qualifications required for the
appointment and career advancement of teachers in Universities and
institutions affiliated to it) Regulations,2000. There is no dispute that the
said regulation was adopted by Manonmaniam Sundaranar University on 1.11.2000
and the regulations were accepted on 4.11.2000.
31. The constitution of selection committee is referable to
regulation 3.5.0 of the UGC Regulations. The very same regulation relating to
the constitution of the committee is reproduced in the impugned order. Though
the Government Order was issued in exercise of power under Article 162 for the
purpose of extending the benefit of revision of pay scales, insofar as the
qualification for the post of principal and constitution of committee was
incorporated in the said order as per the statutory regulations of the UGC.
Regulations made under Section 26 of the Act has statutory force. The Apex
Court in the judgment reported in UNIVERSITY OF DELHI VS RAJ SINGH AND OTHERS
(A.I.R. 199 5 SC 336) has held that UHC was the competent authority to
prescribe the educational qualifications that are ordinarily required to the
post of a Lecturer including the principal and such regulations shall
statutory force.
32. So far as the educational qualification prescribed by regulations
framed by UGC, there cannot be any dispute that the college should abide by
the minimum qualification while selecting the candidate for the post of
Principal. In fact, in the impugned order, the eligibility norms notified by
the College is in tune with the minimum educational qualifications prescribed
in the regulations framed by UGC.
33. The question still considered is as to whether the power of UGC
to make regulations under Section 26(e) of the Act could be extended even
prescribing the constitution of a committee for selecting the candidates for
the post of principal. Entry 66 relates not only to for coordination but also
determination of the standards in higher education. Determination of
standards in higher education includes maintaining the excellence in the
college. The post of Principal is pivotal importance in the educational
institution. In maintaining the standard vis-`-vis the appointment of
Principal it would be relevant to point out the role of the Heads of the
educational institution as observed by the Apex Court as well the High Court.
34. In ALDO MARIA PATRONI VS E.C.KESAVAN(1964 Kerala LT 791) the Full
Bench of Kerala High Court has held as follows:
The post of the Headmaster is a pivotal importance in the life
of a school. Around him wheels the tone and temper of the
institution; on him depends the continuity of its traditions; the
main- tenance of discipline and the efficiency of its
teaching. The right to choose the headmaster is perhaps the most
important facet of the right to administer a school, and we must
hold that the imposition of any trammel thereon-except to the
extent of prescribing the requisite qualifications and experience cannot
but be considered as a violation of the right guaranteed by Article 30(1)
of the Constitution. To hold otherwise will be to make the right a
teasing illusion a promise of unreality
35. The Nine Judge Bench in the Ahamedabad St. Xaviers college
Society (1971 SCC717) has held as follows:
It is upon the principal and teachers of a
College that tone and temper of an educa-
tional institution depend. On them would
depend its reputation, the maintenance of
discipline and its efficiency in teaching
The right to choose the principal and to
have the teaching conducted by teachers
appointed by the management after an
overall assessment of their outlook and
philosophy is perhaps the most important
facet of the right to administer an
educational institution
36. In Gandhi Faiz-E-Am College Vs. University of Agra (1975(2) SCC
283) the Apex Court has held as follows
An activist principal is an asset in
discharging these duties which are inextri-
cably interlaced with academic functions.
The principal is an invaluable insider-the
Managements own choice-not an outsider
answerable to the Vice-chancellor. He
brings into the work of the Managing
committee that intimate acquaintance with
educational operations and that necessary
expression of student-teacher aspirations
and complaints which are so essential for
the minority institution to achieve a
happy marriage between individuality and
excellence
37. In N.Ammad Vs. Manager, Emjay High School and others ( 1999(2)
LW 52) the Apex Court has held as follows:
Selection and appointment of Headmaster
in a school (or principal of a college) are
prime importance in administration of that
educational institution. The Headmaster is
the key post in the running of the school.
He is the hub on which all the spokes of
the school are set around whom they rotate
to generate result. A school is personified
through its Headmaster and he is the focal
point on which outsiders look at the school.
A bad Headmaster can spoil the entire insti-
tution, an efficient and honest Headmaster
can improve it by leaps and bounds. The
functional efficacy of a school very much
depends upon the efficiency and dedication
of its Headmaster. This pristine precept
remains unchanged despite many changes
taking place in the structural patterns
of education over the years
38. The above emphasis made by the Apex Court as well the Full Bench
of Kerala High Court as to the appointment not only the Headmaster and the
Principal of colleges but also the teachers in educational institutions, only
by taking into consideration of the interest of students for a better
education. Such appointment has relevance to the standard in the educational
institution. The provisions of Section 2 6 of UGC Act empower the Commissions
to make regulations not only prescribing the minimum qualification for the
post of Principal but as well the constitution of the committee for selecting
the person from among the teachers appeared for the interview. Mere
insistence on educational qualification may not serve purpose as the
appointment of the post of Principal has to be made according to merit and
ability which will be tested or decided by the committee properly constituted
in accordance with the regulations framed by UGC.
39. Of course, an aided non-minority educational institution have a
college committee to appoint teachers. The power for the college committee to
appoint teachers cannot be disputed. However, such power should be exercised
in the manner prescribed under regulations of the UGC. When once the college
is bound to adopt the minimum educational qualifications prescribed in the
regulation framed by UGC, it is equally bound to make selection through
properly constituted committee as per the said regulation. The constitution
of the selection committee prescribed in Regulation 3.5.0 consists of the
Chairperson of the Governing Board as Chairperson, one member of the Governing
Board to be nominated by the Chairperson, two Vice-Chancellor’s nominees and
three experts consisting of the Principal of a College, a Professor and an
accomplished educationist. The majority of the members of the Selection
Committee is from the College Committee except in the place of two nominees of
the Vice-Chancellor, only one University representative figures as Member in
the College Committee. That apart, out of three experts, the representative
from the accomplished educationist not below the rank of a Professor to be
nominated by the Board out of a panel of experts approved by the
Vice-Chancellor. It is not so in the College Committee. The above committee
is only to ensure the maintenance of the standard in the education as the
standard of education to students shall depend upon the appointment of a
qualified person. Only in this context, the Committee constituted by UGC is
insisted to select the candidate. In order to consider the appointment, the
college committee has to necessarily depend upon the recommendations of the
committee constituted in accordance with the regulations. To this extent the
power of the college committee cannot be extended even for selecting
candidates ignoring the regulations of the UGC in regard to composition of
selection committee. That apart When once the regulations are adopted by the
University, the 5th respondent college affiliated to the University is bound
to follow the regulations. In this context, the constitution of the committee
to select the post of Principal should be only in accordance with the
conditions prescribed under the regulation of UGC. There is no dispute that
the committee which interviewed and selected the 6th respondent for the post
of Principal was not in conformity with the composition of the committee
prescribed in UGC Act and to this extent, the selection of the 6th respondent
cannot be held to be valid.
40. In view of the finding that G.O.Ms. No.111 dated 24.3.1999
prescribing educational qualification and the constitution of committee was
issued only in accordance with the regulations framed by UGC, the impugned
order though issued under Article 162 of the Constitution of Indian, inasmuch
as it reproduces the minimum educational qualifications and the constitution
of the selection committee as per the Regulations, it cannot be said that it
is not binding on the college. Hence, Point No.1 is answered by holding that
the said Government Order have statutory backing of the Central Enactment and
consequently, is binding on the college.
41. In view of the above finding, Point No.2 is also answered by
holding that the college committee has no power to select a candidate for the
post of Principal or constitute a separate selection committee which is not in
accordance with Regulations of UGC for the said purpose as no such power is
conferred under both the Tamil Nadu Private Colleges(Regulation) Act and the
Rules made thereunder as well the provisions of Manonmaniam Sundaranar
University Act.
42. The learned senior counsel appearing for the respondent would
rely upon the judgment reported in THE ASSOCIATION OF MANAGEMENTS PRIVATE
COLLEGES VS GOVERNMENT OF TAMIL NADU ( 2000(IV) CTC 641). In my considered
opinion, UGC regulations prescribing the minimum educational qualifications
for the post of Principal and the composition of selection committee to select
a candidate were not brought to the notice of this Court and the judgment was
rendered on the ground that the said Government Order was issued in exercise
of the power under Article 162 of the Constitution of India and without
reference to the fact that it was issued on the basis of the regulations.
Therefore, the said decision cannot be pressed into service.
43. Point No.3: It is not a Rule that the Selection Committee need
to pass a detailed order with cogent reasons to arrive its conclusion to
select a candidate. Nevertheless, the Selection Committee must indicate a
gist of conclusions in the order based on records. It would be fair and
reasonable to describe the comparative merits. By such procedure, the
Selection Committee could avoid a reasonable apprehension in the mind of
unsuccessful candidates that their merits have been overlooked without any
reason. In this regard, the following judgment of a Division Bench of this
Court is referable. JEYASELVI VS GOVERNMENT OF TAMIL NADU(1994(1) MLJ 130).
A perusal of the impugned order shows that there is no disclosure of any
reason as to why the 6th respondent was preferred especially when the
petitioner is senior to the 6th respondent. In the absence of such reasons,
the impugned order is unsustainable.
44. Point No.4:- Mr.Vijay Narayan, the learned senior counsel
appearing for the 5th respondent would however submit that the selection and
appointment of the 6th respondent is yet to be approved by the University and
the Writ Petition is premature. I am not inclined to accept the said
submission as in the event this Court comes to the conclusion that the very
selection and appointment is against regulations of the UGC, the Writ Petition
cannot be dismissed on the ground that it is premature. In the event, the
order of selection and appointment is found to be illegal and in contravention
of the regulations the proposal should be necessarily rejected and no approval
could be granted. In that view of the matter, merely because the selection
and appointment is yet to be approved by the University, the petitioner should
not be prevented from approaching this Court questioning the very basis of the
process of selection.
45. For the above reasons, the impugned order is set aside and the
Writ Petition is allowed. However, the 5th respondent college is at liberty
to select a candidate to the post of Principal by the duly constituted
committee in accordance with the regulations. No costs. Consequently, all
connected Writ Miscellaneous Petitions are closed.
Index: Yes
Website: Yes
vbs
To
1. The Secretary and Commissioner
Government of Tamil Nadu
Department of Higher Education
Fort St. George, Chennai.
2. The Director of Collegiate Education
College Road, Chennai.
3. The Registrar
Manonmaniam Sundaranar University
Tirunelveli.
4. Regional Director of Collegiate
Education, Tirunelveli Region
Tirunelveli.