BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED: 28/07/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.4812 of 2006 and W.P.M.P.(MD)Nos.1,2,3,4 of 2006 Rev.Dr.Arul Arasu Israel ... Petitioner Vs. 1.The Governing Council of the American College, Represented by the Chairman, The Bishop, The American College, Tallakulam, Madurai-2. 2.Dr.T.Chinnaraj Joseph Jaikumar, Principal and Secretary, The American College, Madurai-2. 3.The American College, Madurai, represented by its, Principal and Secretary 4.The Registrar, Madurai Kamaraj University, Palkalai Nagar, Madurai - 2. 5.The Joint Director of Collegiate Education, Shenoy Nagar, Madurai-2. PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned notice dated 23.05.2006 issued by the third respondent the Principal and Secretary of the American Ciollege mentioning that the Governing Council Meeting held on 22.05.2006 has chosen and appointed Dr.T.Chinnaraj Joseph Jaikumar, Head Department of Religion, Philosophy and Sociology as Principal and Secretary of the American College and quash the same and directing the 1st respondent to appoint the petitioner as the Principal and Secretary of the 3rd respondent college. !For Petitioner ... Mr.K.Vellaiswamy ^For Respondents ... Mr.Issac Mohanlal 1-3 For 4th Respondent ... Mr.S.Chandrasekaran For 5th Respondent ... Mr.K.Bhaskaran, Additional Government Pleader. :ORDER
This writ petition is filed challenging the notice issued by the third
respondent dated 23.05.2006 stating that as per the first respondent Governing
Counsel of American College, in the meeting held on 22.05.2006, the second
respondent Head of Department of Religion, Philosophy and sociology, has been
chosen and appointed as a Principal and Secretary and that he will assume office
on the first June of 2006.
2. The writ petitioner has joined in the third respondent college as
Lecturer in the year 1987 in the Department of Religion, Philosophy and
Sociology having his qualification M.A.(Philosophy), M.A.(Psychology) and M.A.
(Gandhian Thought), M.Phil, B.D. and Ph.D. He was promoted as Reader in the year
1988 and is working in the said capacity as on date under the third respondent
college.
3. The third respondent college is an aided minority Grade-I college
governed by the provisions of Tamil Nadu Private Colleges (Regulation) Act and
Rules made thereunder except those provisions which are not applicable to the
minority institutions. According to the petitioner, the second respondent
joined services as Lecturer in the third respondent college in the year 1985 and
he got Ph.D only in the year 2006 while the petitioner has got Ph.D in the year
1992 itself and working as Reader for the past eight years from 1998 onwards and
therefore, the second respondent is junior to the petitioner in the cadre of
Reader. On retirement of previous incumbent as the Principal on 31.05.2006,
when the vacancy arose, the first respondent Governing Council in its meeting
held on 22.05.2000 has chosen to appoint the second respondent as Principal cum
Secretary.
4. According to the petitioner, even though, in the master degree he has
got more than 55% of marks, the second respondent is having less than that mark
and therefore, he was not qualified for being considered to the post of
Principal. Therefore, the very appointment of the second respondent even as
Lecturer is illegal. According to the petitioner, since the second respondent
was appointed as Lecturer even in the year 1985, is bound by the qualifications
prescribed by the Government of Tamil Nadu in the G.O.Ms.No.1052 Education and
Science and Technology (G11) Department dated 7.10.1983 wherein the
qualification prescribed for the post of lecturer is 55% marks in the Post
Graduate degree. The second respondent is having less than that 55% and
therefore, he has not qualified and he should not have been considered for the
post of Principal and Secretary at all in the third respondent college and that
appointment is not valid in law. The petitioner also would submit that by
subsequent G.O.Ms.No.345 Higher Education (H1) Department dated 03.10.2005, the
qualification and eligibility for the post of Principal has been issued by
amending G.O.Ms.No.111 and 55% minimum marks was required in the master degree.
Therefore, in view of the subsequent Government order which is also binding on
the third respondent, the second respondent has no qualification and his
appointment is not only against the provisions of the Tamil Nadu Private
Colleges (Regulation) Act, 1976 but also against the Government order issued
prescribing qualification for the post of the Principal. As per the revised
norms fixed as stated above, the G.O.Ms.No.111 Higher Education (H1) Department
dated 24.3.1999 was amended by G.O.Ms.No.345 Higher Education (H1) 03.10.2005
under which for the post of Principal in Grade-I College the following
qualification has been prescribed.
“1. A masters degree with at least 55% of marks or its equivalent grade
“B” in the seven point scale.
2. Ph.D or equivalent qualification
3. A minimum total experience of 15 years of teaching / research in
Universities / Colleges and other institutions of Higher Education”.
5. According to the petitioner, the said Government order also
specifically states that all the universities are to adopt the above said
qualification uniformly while approving the qualification of all Principals in
Government aided colleges. Inasmuch as, the said revised norms have come into
effect from the date of the Government Order namely, 03.10.2005, the appointment
of the second respondent is against the said Government order and is liable to
be set aside.
6. On the other hand, the respondents 1 to 3 have filed their counter
affidavit.
7. According to the respondents, the writ petition is not maintainable.
The third respondent is a minority educational institution having been
established in the year 1881, and the same is affiliated to the fourth
respondent Madurai Kamaraj University. The college was conferred autonomous
status from 1978 by the University and it has been accredited as a college with
Five Star status. While it is admitted that the third respondent college is an
aided college by the Government, it is stated that the third respondent college
is also running unaided courses under self financing pattern. When a vacancy
arose in the post of Principal in the third respondent college power vested with
the first respondent Governing Counsel. The Governing counsel consisting of
eminent persons unanimously appointed a three member committee to select the
candidate with
i) Rt.Rev.Dr.A.Christopher Asir – Bishop – Chairman
ii)Dr.Sempon David – Former Director of
Medical Education, Govt. of Tamil Nadu
iii)Rev.Father Lawrence Amalraj – Former Principal,
Arulanadar College, Madurai (autonomous)
8. The sub committee has considered the candidature of all the eligible
persons working in the third respondent college. It is also specifically stated
by the third respondent that in addition to the eligible candidates working in
the third respondent college outsiders were also invited for consideration with
the aim of finding out the best suitable person for the said post. The sub
committee after a thorough and elaborate consideration of the candidates has
recommended the name of the second respondent in the first ranking. Even
though, in the counter affidavit it is stated that the second respondent was
having Ph.D degree in Sociology in the year 2002-2005 obtained from Madurai
Kamaraj University, M.Phil degree in the year 1984-85 having obtained from
Gandhigram Rural Institute (Deemed University), M.A. in Sociology in the year
1981-1983 at S.V.Universty, M.A. Social Work in the year 1973-1975 in Madurai
University and B.Sc Physics in the year 1970-1973 in Madurai University, without
mentioning the marks obtained by the second respondent in his Post graduate
degree, the learned counsel for the respondents 1 to 3 would fairly admit the
factual position that the second respondent has not got 55% of marks in his Post
graduate degree as prescribed in the above said Government order and he in fact
obtained the marks 53.5% and 58.2% in M.A. Sociology and M.A. Social work
respectively.
9. That apart, it is the case of the respondents 1 to 3 that the second
respondent having worked for more than 25 years as Assistant Professor in
various grades and involved in the National Level Projects with administrative
experience of more than 9 years as Head of the Department both at Post Graduate
and under graduate levels, having been worked as a Member of the college Senate
and also obtained training from the University Grants Commission and therefore,
was found by the Committee to be the fit person to the post as a Principal of
the third respondent college. After the appointment of the second respondent,
the first respondent has sent the proposals to the 5th respondent Joint
Director of Collegiate Education on 01.06.2006 for giving approval of the
appointment of the second respondent for the purpose of disbursement of grant-
in-aid towards the salary and also for approving him as a Secretary of the
college. The third respondent college has also submitted proposals to the
fourth respondent University on 01.06.2006 for approving the qualification of
the second respondent.
10. While admitting that the petitioner is working in the third respondent
college as Reader from the year 1987 it is stated that the petitioner was not
made as Reader from the 1988 but was only placed in the cadre of Reader in the
year 1990 and the second respondent is senior to the writ petitioner. Further,
the allegation that the second respondent was not qualified for the post of
Principal is denied. It is stated that the second respondent is appointed as
Lecturer in the year 1985 with full educational qualification and the same was
approved by the university as also the Director of Collegiate Education.
According to the respondents 1 to 3, the requirement of 55% minimum marks in the
Post Graduate degree is intended for the appointment after 1991 whereas the
second respondent was appointed as a Lecturer even in the year 1985. The fourth
respondent has approved the appointment of the second respondent as Lecturer as
early as on 26.11.1986. According to the respondents 1 to 3, the minimum
qualification of 55% marks required in the Government order is not applicable to
the second respondent who was appointed as Lecturer much earlier in 1985.
Further, according to the respondents 1 to 3, the second respondent is fully
qualified as per the qualification is prescribed by the University Grants
Commission and Madurai Kamaraj University. The said respondents would also
specifically state that the State Government has no competence to prescribe any
qualification, while qualification prescribed only by the University and
University Grants Commission. There is no inherent disqualification on the part
of the second respondent. While admitting that the third respondent college is
bound by the provisions of Tamil Nadu Private Colleges (Regulation) Act, 1976 to
the extent that except those provisions which are not applicable to the minority
institutions, it is stated that the appointment of the second respondent is well
within the powers contemplated under the said Act.
11. Mr. K.Vellaisamy, learned counsel appearing for the writ petitioner by
placing reliance on the Government Order in G.O.Ms.No.111 Higher Education (H1)
Department dated 24.03.1999 would submit that the said Government order itself
was passed based on the qualification prescribed by the University Grants
Commission.
12. The learned counsel also placing reliance on the judgment of this
Court rendered in Dr.S.Arulmani Vs. Government of Tamil Nadu rep. by its
Secretary and Commissioner, Department of Higher Education, Chennai and others
reported in 2006 Writ L.R.390 to substantiate his contention that this Court has
held categorically that the qualification prescribed under G.O.Ms.111 dated
24.03.1999 was issued in accordance with the regulations framed by the
University Grants Commission and the said Government order which is issued by
virtue of the power conferred on the State Government under Article 162 of the
Constitution of India is in consonance with the University Grants Commission’s
regulations, and therefore, it cannot be said that the Government order is not
binding upon the colleges. The learned counsel also would state that the
categoric pronouncement of this Court in the above said judgment that the State
Government passed the Government order has a statutory backing by the Central
enactment and the said judgment has put an end to any controversy about the
applicability or otherwise of the said Government order to the aided colleges.
13. The learned counsel would also submit that the subsequent Government
order namely, G.O.Ms.No.345 Higher Education (H1) Department dated 03.10.2005
while issuing the amendment order to G.O.Ms.No.111 dated 24.03.1999 has
reaffirmed the qualification of principals in Grade-I, Grade-II colleges stating
that a masters degree with 55% of marks is a condition precedent. The learned
counsel also would submit that inasmuch as the impugned order of the first
respondent dated 01.06.2006 which run as follows:
“This is to report that the Governing Council of the American College,
Madurai, after considering the merits and abilities of all the applicants,
selected and appointed Dr.T.Chinnaraj Joseph Jaikumar as the Principal &
Secretary of the American College,Madurai, from the forenoon of June 1, 2006
through its resolution No.2/May/2006, in its special meeting held on
22.05.2006”.
states clearly that the second respondent was “selected and appointed” which
means that the post of Principal is not a promotional post and it is a selection
post. He would also submit that inasmuch as the respondents 1 to 3 in the
counter affidavit have categorically admitted that not only the eligible
candidates available in the third respondent college for the post of Principal
but also outsiders were called for the purpose of selecting a better person as a
Principal and therefore, it should be construed only as a selection and
appointment and not by promotion.
14. When it is the matter of open competition, the condition precedent is
the required educational qualification. The word “selection and appointment”
under the impugned order shows that it is a new appointment as submitted by the
learned counsel for the petitioner.
15. The learned counsel also would rely upon the communication of the
fourth respondent Universtity dated 13.5.1999 by referring to G.O.111 dated
24.03.1999. The fourth respondent university while stipulating the
qualification for the post of principals states that a masters degree with 55%
of marks is required qualification. The further stipulation that the minimum
requirement of 55% of marks need not be insisted upon for the existing
incumbents who are already working in the college means those persons who are
already appointed as Principals who are continuing in respect of whom, the 55%
of marks need not be insisted upon and that stipulation is only for the purpose
of preventing such persons who are already working as Principals from being
disturbed. The specific word stating that the said marks should be insisted
upon to the new entrant shows that for the selection and appointment of person
as a Principal as in the present case, all candidates whether considered through
the college or outside should be treated as entrants and therefore, the
qualification of 55% of marks is a required condition.
16. According to the learned counsel for the petitioner, the validity of
the G.O.Ms.No.111 as well as the subsequent G.O.Ms.No.345 has been in fact
considered by this Court in the above said judgment rendered in Dr.S.Arulmani
Vs. Government of Tamil Nadu rep. by its Secretary and Commissioner, Department
of Higher Education, Chennai and others reported in 2006 Writ L.R.390, and held
valid.
17. On the other hand, Mr. Issac Mohanlal, learned counsel for the
respondents 1 to 3 would vehemently submit that a reference to the G.O.Ms.No.111
or G.O.Ms.No.345 has no relevancy for the reason that even though the Government
is giving aid to the third respondent college, the State Government has no
authority to prescribe qualification in respect of the teachers to be appointed
in the aided colleges which include the post of Principal also. He would submit
that even though, the G.O.Ms.No.111 refers about the letter of the University
Grants Commission, the notification of the University Grants Commission in
respect of appointment and career advancement of teachers in the universities
and colleges issued on 04.04.2000 shows that the regulation is mandatory in
nature and all the universities are expected to follow. The University Grants
Commission regulation which is having statutory force since the same has been
framed in accordance with the powers conferred under Section 26(1)(e) and (g)
read with Section 14 of the University Grants Commission Act 1956 and therefore,
the qualification insisted under the said University Grants Commission
regulations will supersede the Government order in G.O.Ms.Nos.111 and 345 passed
by virtue of the powers conferred under Article 162 Constitution of India to the
State Government.
18. According to the learned counsel, the University Grants Commission
regulation which contemplates the qualification for the purpose of Principals
and professors in Grade – I college as M.A. degree with at least 55% of marks or
its equivalent grade of B in the 7 point scale with letter grades O,A,B,C,D,E &
F etc. The notes annexured to the said regulation contemplates the provision
that the said minimum requirement of 55% of marks shall not be insisted upon the
Principals etc., for the existing incumbents who are also in the university
system and therefore, according to the learned counsel, inasmuch as, the second
respondent is also in services of the third respondent his qualification having
been approved even as early as on 1985 by the competent university, by virtue of
the said notes under the said regulation, the second respondent is eligible to
be appointed and the same cannot be questioned.
19. According to the learned counsel, while making the analogy in respect
of Bharathidasan University stating that the said university has adopted the
University Grants Commission regulation in its statutes. Even if the fourth
respondent University has not adopted the said regulation in its statute, by
virtue of the letter of the fourth respondent university dated 13.05.1999, the
minimum requirement of 55% of marks need not be insisted upon for the existing
incumbents who are already in college which according to the learned counsel
for the respondents 1 to 3 means that the second respondent having been working
in the third respondent college, the 55% of marks need not be insisted upon.
The learned counsel also would place reliance on the judgment of the Apex Court
rendered in reported in 1999 (4) SCC 720 for the proposition that inasmuch
as the university is a separate entity, any rules framed by the Government are
not applicable unless they are specifically adopted by the University in
accordance with the provisions of the statutes of the concerned university.
20. In the present case, according to the learned counsel for the
respondents 1 to 3, by applying the dictum laid down by the Hon’ble Supreme
Court, the applicability of G.O.Ms.Nos.111 and 345 cannot be automatically
presumed to the fourth respondent university, if the fourth respondent
university has not adopted the said Government order. He would also rely upon
another judgment of this Court in the Association of Managements Private
Colleges represented by its General Secretary Vs. the Government of Tamil Nadu
represented by its Secretary Department of Education, Chennai -9 and another
reported in 2000 (4) CTC 641 for the proposition that the university alone has
got power to make regulation regarding the qualification for the post of
Principal while construing the various provisions of the Tamil Nadu Private
Colleges (Regulation) Act. The learned counsel has also relied upon another
judgment of this Court rendered in Suresh Manohar and another Vs. The State of
Tamil Nadu represented by its Secretary to Government, Chennai-9 and others
reported in 2003 (4) CTC 1 wherein while construing the provisions of the Tamil
Nadu Private Colleges (Regulation) Act 1976, this Court has held that the powers
of the Government to issue any direction can only be in respect of the matters
which are not covered under the provisions of the Tamil Nadu Private Colleges
Act, 1976. That was the case wherein, the college committee has been conferred
with the power of disciplinary proceedings against the teachers and in that
circumstance, the Government rules cannot be made applicable. The learned
counsel would also place reliance on the other judgment of this Court in
S.Mohamood Basha Vs. Director of Collegiate Education Chennai-6 and others
reported in 2002 (3) CTC 336 holding that the rules of the Tamil Nadu State
Subordinate Service cannot be recorded as statutory so far as the employees of
aided colleges are concerned.
21. The reliance was also placed on the judgment reported in Vinayaka
Mission’s Kirupananda Variyar Medical College, Main Road, Salem rep. by its
Registrar, Sponsored by Thirumuruga Kirupananda Variyar Thavathiru Sundara
Swamigal Medical Educational and Charitable Trust Vs. The Tamil
Nadu Dr. MGR Medical University, rep. by its Registrar, Chennai and another
reported in 2005 (2) CTC 772 to support his contention that the Government Order
cannot be insisted upon when the statutes of the university prescribed some
other method. According to the learned counsel for the respondents 1 to 3, the
second respondent being senior to the petitioner as stated in the counter
affidavit, the petitioner cannot have any grievance in the appointment of the
second respondent as a Principal of the third respondent college.
22. Mr.S.Chandrasekaran, learned counsel for the university namely, fourth
respondent would also submit that as per the qualification prescribed by the
university which is in accordance with the University Grants Commission
regulations, the 55% of marks is required in the post graduate level is not
insisted to those persons already in services of the concerned college and
therefore, according to the learned counsel for the university/fourth
respondent, it cannot be said that the second respondent has no qualification.
23. Mr.K.Vellaisamy, learned counsel for the petitioner would contend by
way of reply that even assuming that the 55% of marks requirement need not be
insisted in respect of persons are already in service but at the same time, the
said 55% of marks from outside candidates who are also equally situated for the
purpose of selection and appointment to the post of Principal and therefore,
such a differential treatment will be arbitrary and has to be set aside.
24. The learned counsel also would state that while admittedly, three
outsiders were called for there is absolutely no rationale behind the
apprehension that they should have better qualification than the teachers
already working in the third respondent college.
25. I have heard the learned counsels for the petitioner as also for the
respondents 1 to 4 apart from the learned Additional government Pleader and
perused entire records.
26. In this case, the simple question that has to be considered is as to
whether the second respondent appointed as Principal of the third respondent
college is having required qualification or not. Admittedly, the third
respondent college is a minority aided college governed by the provisions of the
Tamil Nadu Private Colleges (Regulation) Act and Rules made thereunder except
those provisions which are not applicable to the minority institutions.
27. In respect of qualifications of the teaches and other persons employed
in the private colleges, the Tamil Nadu Private Colleges (Regulation) Act, 1976
under Section 15 contemplates, the University to frame rules and regulations.
The said section runs as follows:
“15.Qualifications of teachers and other persons employed in private
colleges:-
1) The University may make regulations, statutes or ordinances specifying
the qualifications required for the appointment of teachers, persons employed in
any private college.
2) The Government may make rules specifying the qualifications required
for appointment to any post, other than teachers, in any private college.”
Therefore, it has to be seen as to whether the fourth respondent which is an
affiliating university of the third respondent college, even though, the same
has been conferred the autonomous status, has framed any regulations in respect
of qualifications, regarding the teachers employed in the colleges affiliated to
it.
28. The Madurai Kamaraj University Act of 1965, by virtue of which the
fourth respondent has come into existence, while dealing with the powers of the
syndicate of the fourth respondent university imposes a power on it to prescribe
qualifications of teachers in university colleges, affiliated colleges and
approved colleges in consultation with the academic council. Section 20(14) of
the Madurai Kamaraj University Act 1965 which runs as follows:
“20(14). to prescribe, in consultation with the Academic Council, the
qualifications of teachers in University colleges, affiliated and approved
colleges and hostels”
29. It is in accordance with the powers conferred under the said
provision, the fourth respondent has in fact prescribed qualifications for the
teachers of affiliated colleges including the principal, as seen in the
communication of the fourth respondent university dated 13.05.1999 to all the
principals of Arts and Science Colleges referring to the minutes of the meeting
of Syndicate held on 24.04.1999. The said letter also refer to the
G.O.Ms.No.111 date 24.03.1999. The qualification prescribed for the post of
principals in the aided colleges as seen in the letter of the fourth respondent
dated 13.05.1999 is as follows:
“2.Principal
i) A Masters degree with atleast 55% of marks or its equivalent grade
‘B’ in the seven point scale, (Grade B Good, Grade point 3.50-4.49, percentage
equivalent 55-64).
The minimum requirement of 55% need not be insisted upon for the
existing incumbent who are already in the colleges. However, these marks should
be insisted upon for the new entrants.
ii) A relaxation of 5% may be provided from 55% to 51% of the marks, at
the Masters Level to the S.C./S.T. categories.
iii) A relaxation of 5% may be provided from 55% to 50% of the marks to
the Ph.D. degree holders who have passed their Masters degree prior to 19th
September 1991.
iv) Ph.D., or equivalent qualification.
v) A minimum total experience of 15 years of teaching/research in
Universities/Colleges and other institutions of Higher Education.”
30. Since the said qualification prescribed by the fourth respondent
university refers to G.O.Ms.No.111 Higher Education (H1 Department) dated
24.03.1999, the said Government order in the Annexure II prescribing the
educational qualification for the post of lecturers, senior lecturers and
principals of the Government and aided colleges. In respect of the post of
Principals in Grade I and II colleges, the said Government order stipulates the
qualification as follows:
“2.Principals(Grade-I)
i) A Masters degree with at least 55% of marks of its equivalent grade “B”
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 15 yeas of teaching / research in
Universities/ colleges and other institutions of Higher Education.
Principals (Grade-II)
i) A Masters degree with at least 55% of marks of its equivalent grade “B”
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 10 years of teaching/research in
Universities/ colleges and other institutions of Higher Education.
Explanation:
However, the Principals of Government colleges are presently being placed
in two grades on the basis of the following criteria. Professor grade Principals
are posted to colleges with at least two P.G. courses and a student strength of
not less than 1000. Reader grade principals are posted to other colleges.
Appointment to the post of Principals is being made from among the holders
of posts of Lecturers (Selection grade / Reader) in colleges. The seniority as
Selection Grade Lecturer is the criteria, for promotion. This system which is
vogue since 1989 will continue in Government colleges”.
31. The said Government order was subsequently amended by G.O.Ms.No.345
Higher Education (H1 Department) dated 03.10.2005 however without affecting
qualifications prescribed for the post of Principal. The said G.O.Ms.No.345 in
respect of the qualification for the post of Principals runs as follows:
“2.Principals(Grade-I)
i) A Masters degree with at least 55% of marks of its equivalent grade “B”
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 15 yeas of teaching / research in
Universities/ colleges and other institutions of Higher Education.
Principals (Grade-II)
i) A Masters degree with at least 55% of marks of its equivalent grade “B”
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 10 years of teaching/research in
Universities/ colleges and other institutions of Higher Education.
Explanation:
i) However, the Principals of Government colleges are presently being
placed in two grades on the basis of the following criteria. Grade-I Principals
are posted to colleges with atleast two P.G. courses and a student strength of
not less than 1000 in regular courses of study. Grade-II Principals are posted
to other colleges.
ii) Appointment to the post of Principals is being made from among the
holders of posts of Lecturers (Selection Grade / Reader) in colleges. The
seniority as Selection Grade Lecturer is the criteria for promotion.
iii) For those who have been promoted as Principals from 01.01.1996 to
till the date of issue of this order, Ph.D qualification need not be insisted
upon.
iv) The decision in respect of implementation of Ph.D qualification for
the promotion as Principal in Government/Aided Colleges shall be as follows.
a) In respect of Lecturers appointed prior to 01.01.1996, the Lecturers
must qualify Ph.D within 6 years from the date of issue of this order.
b) If the Lecturers appointed prior to 01.01.1996 and those who have less
than 6 years of left over service to retire, may also be considered for
promotion as Principal as per the existing rules.
c) For those who have more than 6 years of service, they should acquire
Ph.D. qualification within 6 years period from the day of issue of this order,
failing which he or she will not be considered after 6 years period for the post
of Principal.
d) In respect of Lecturers appointed on or after 1.1.1996, the prerequiste
qualification of Ph.D for promotion as Principal is mandatory.
e) All Universities in Tamil Nadu may be requested to adopt the above
qualifications uniformly while approving qualification of Principals in
Government / Government Aided Colleges.
f) These revised norms will come into force with effect from the date of
issue of this order.”
32. It is relevant to point out that the said Government orders refer
about the communication from the University Grants Commission. The
University Grants Commission while framing the regulations by virtue of the
powers conferred on it under Section 26(1)(e)and(g) read with Section 14 of the
University Grants Commission Act, 1956 has prescribed the minimum qualification
for the purpose of professors, principals etc., in the universities, colleges,
along with foot notes which runs as follows:
“1.0.0 Direct Recruitment
1.1.0 Principal (Professor’s Grade)
i) A Masters degree with at least 55% of marks of its equivalent grade “B”
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 15 yeas of teaching / research in
Universities/ colleges and other institutions of Higher Education.
1.2.0 Principals (Reader’s Grade)
i) A Masters degree with at least 55% of marks of its equivalent grade “B”
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 10 years of teaching/research in
Universities/ colleges and other institutions of Higher Education.
Notes:
1. A relaxation of 5% may be provided from 55% to 50% of the marks at the
Master’s level for the SC/ST category.
2) A relaxation of 5% may be provided from 55% to 50% of the marks to the
Ph.D degree holders who have passed their Master’s degree prior to 19th
September 1991.
3) B in the 7 point scale with letter grade O,A,B,C,D,E & F shall be
regarded as equivalent of 55% whereever the grading system is followed.
4) NET shall remain the compulsory requirement for appointment as Lecturer
even for candidates having Ph.D degree. However, the candidate who have
completed M.Phil, degree or have submitted Ph.D thesis in the concerned subject
up to 31st December, 1993, are exempted from appearing in the NET examination.
5) The minimum requirement of 55% shall not be insisted upon for
Principals, Professors, Readers, Librarians, Deputy Librarians, Directors of
Physical Education and Deputy Directors of Physical Education, for the existing
incumbents who are already in the university system. however, these marks
should be insisted upon for those entering the system from outside and those at
the entry point of Lecturers, Assistant Registrars, Assistant Librarians,
Assistant Directors of Physical Education.
6) A relaxation of the minimum marks at the PG level from 55% to 50% for
appointment as Lecturer may be provided to the candidates who have cleared the
JRF examination conducted by UGC/CSIR only, prior to 1989, when the minimum
marks required to appear for JRF exam were 50%.”
33. It is by referring to G.O.Ms.No.111 dated 24.03.1999 and the said
qualification prescribed by the University Grants Commission, this Court in the
judgment rendered in Dr.S.Arulmani Vs. the Government of Tamil Nadu represented
by its Secretary, and Commissioner, Department of Higher Education, Chennai and
others reported in 2006 W L.R 390 has held that there is no contradiction
between the G.O.Ms.No.111 passed by the State Government by virtue of the powers
conferred under Article 162 Constitution of India and the stipulations of the
University Grants Commission regarding the qualification of Principals
prescribed by virtue of the powers under Section 26 of the University Grants
Commission Act and thus held that the G.O.Ms.No.111 is applicable. This Court
in categorical terms has held in Para 40 as follows:
“In view of the finding that G.O.Ms.No.111 dated 24.03.1999 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 India, 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.”
34. Therefore, a combined reading of the above facts, would show that the
qualifications prescribed by the fourth respondent university, University Grants
Commission, as well as the Government order in G.O.Ms.No.111 as also the
subsequent G.O.Ms.No.345 are all applicable in the present case and there are
absolutely no contradiction.
35. In this regard, the contention of the learned counsel for the
respondents 1 to 3 Mr.Issac Mohanlal that the University Grants Commission
stipulations regarding the qualifications for the post of Principal does not
prescribe the 55% of marks in the Post Graduate level in respect of the persons
who are already working in the same college but on the other hand such
relaxation are not available under G.O.Ms.No.111 and therefore, the said
G.O.Ms.No.111 cannot be made applicable, is unsustainable.
36. A reference to the University Grants Commission stipulations regarding
the qualification of the Principal as enumerated above shows categorically that
the University Grants Commission has also prescribed 55% of marks are equivalent
Grade-B in the master degree. A reference to the notes under the University
Grants Commission regulations shows that the minimum requirement of 55% marks
shall not be insisted upon for principals in respect of the existing incumbent
who are already in the university system. This term is applicable only in
respect of the persons who are already holding the post of Principal on the date
when the stipulation has come into effect in respect of qualification for the
post of Principals etc., in order to protect the incumbent occupying the post
without the 55% of marks in the Post Graduate level. It cannot be construed as
if such qualification is not required even for a person who is to be appointed
subsequently as a Principal simply for the reason that such candidate is already
working as a teacher in the same college. In this regard, the subsequent lines
in the said notes which runs as follows is relevant:
“However this marks should be insisted upon for those entering system from
outside and those at the entry point of lecturers, Assistant Registrars,
Assistant Librarians, Assistant of Physical education,”
37. However, in this case, it is relevant to point out that admittedly,
the third respondent has considered not only the eligible candidates working in
the third respondent college for the post of Principal but also outsiders have
been called for and therefore, it should be treated as a fresh selection and in
such circumstances, in the post of principals there cannot be two yardsticks
one lesser qualification for the teachers working in the same college and
another more qualification for the persons to compete from outside. Such
construction will only result in an unnecessary discrimination among the equally
situated people who are competing to the post of Principal. Therefore, I do
not agree the contention of the learned counsel for the respondents 1 to 3 that
the exemption of 55% of marks should be construed to the teachers working in
the third respondent college like the second respondent who has competed to the
post of Principal.
38. In fact, the stipulation by the University also uses the same word
namely, the minimum requirement of 55% of marks need not be insisted upon for
the existing incumbent who are already in the college. However, these marks
should be insisting upon for the new entrants. Even though, the learned counsel
appearing for the fourth respondent University has been contending that this has
been construed by the university in the manner it is contended by the learned
counsel for the respondents 1 to 3, for the reasons I have stated above, such
contentions is not tenable. I am emboldened to insist by repeating that such
construction will only result in discrimination among the equally situated
people and there is absolutely no rationale basis whatsoever in connection with
the object sought to be achieved, namely to select a better person for the post
of Principal.
39. On the other hand, the purpose of not insisting such 55% of marks was
only to safeguard the interest of the persons holding the post of Principal and
other post on the date when stipulation regarding the qualification came into
existence either by University or University Grants Commission. Therefore, I am
of the considered view that the qualification prescribed under the said
G.o.Ms.No.111 as also in the University Grants Commission notification apart
from the University stipulations is very clear that for the post of Principal in
Grade-I college, minimum requirement for a candidate is a pass in the Post
Graduate with 55% of marks apart from Ph.d and other teaching qualifications.
Inasmuch as it is admitted by the respondents 1 to 3 that the second respondent
is not having the said 55% of marks in the Post Graduate degree, I have
absolutely no hesitation to hold that the second respondent is not qualified as
per the qualification prescribed by the University Grants Commission and the
Government.
40. By virtue of the decision which I have arrived at there is no
necessity to decide about the qualification of the principal under G.O.Ms.No.111
or the subsequent G.O.Ms.No.345 especially in the circumstance that this has
been the judicial pronouncement and also it is on fact clear that there is
really no contradiction between the Government order prescribing qualification
as well as the qualification prescribed by the University namely, the fourth
respondent apart from the qualification prescribed the University Grants
Commission for the post of the Principal in Grade I College.
41. One another aspect is to be considered in this case is as to whether
these stipulations are applicable to the third respondent which is a minority
college. It is not even the case of the respondents 1 to 3 that by virtue of the
minority status, the third respondent need not follow the qualification
prescribed for the purpose of teachers including the principal. Even assuming
that such argument is advanced, in my considered view the same is not tenable,
for, qualification for the post of teachers cannot be compromised at any cost.
Even a minority institution is to follow the qualification prescribed for the
post of like Principal, lecturers,etc.,
42. In view of the reasons stated above and looking into any angle, I am
of the considered view that the impugned notice issued by the third respondent
dated 23.05.2006 is not valid in the eye of law and is quashed and the writ
petition stands allowed with a direction to the first respondent to initiate
due process for the selection and appointment of the Principal under the third
respondent college. No costs. Consequently, connected M.Ps. are closed.
To
1.The Governing Council of the
American College,
Represented by the Chairman,
The Bishop,
The American College, Tallakulam,
Madurai-2.
2.Dr.T.Chinnaraj Joseph Jaikumar,
Principal and Secretary,
The American College,
Madurai-2.
3.The American College,
Madurai, represented
by its,
Principal and Secretary
4.The Registrar,
Madurai Kamaraj University,
Palkalai Nagar,
Madurai – 2.
5.The Joint Director of Collegiate
Education,
Shenoy Nagar,
Madurai-2.
