IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11/04/2003 CORAM THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA WRIT PETITION NO. 18939 OF 2001 AND W.P.M.P.NO.27851 OF 2001 Dr.T.Venkataraman .. Petitioner -Vs- 1. The Director of Collegiate Education, College Road, Chennai-6. 2. The Secretary, D.G.Vaishnav College, Arumbakkam, Chennai-106. 3. The Registrar, University of Madras, Cehapauk, Chennai-5. 4. Mr.B.Krishnan .. Respondents For Petitioner : Mr. P.Jyothimani For Respondent : Mr. AL.Somayaji, SC -R2 Mr.Ezhilmani for R3 Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying for issuance of Certiorarified Mandamus for the reliefs as stated therein. :ORDER The petitioner prays for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the second respondent pertaining to the impugned proceedings No.468 dated 29-9-2001, to quash the same and direct the second respondent to consider and appoint the petitioner as 'Principal' of the second respondent college, namely, D.G. Vaishnav College, Arumbakkam, Chennai-106. 2. Though very many contentions were raised while seeking for the issuance of the above writ, Mr.Jyothimani, learned counsel appearing for the petitioner, mainly concentrated his submissions on the ground that the fourth respondent does not satisfy the required qualification for being appointed as the 'Principal' of the second respondent college. He also contended that the appointment of the fourth respondent was not fully approved by the third respondent University, inasmuch as, the resolution dated 4-10-2001 of the third university respondent granting the approval was only provisional subject to verification of records of the selection by the University. According to the learned counsel, as per UGC Notification of March 2000 prescribing the qualifications for the various posts including the post of ' Principal, and the qualification for the post of 'Principal' is 'a Master's Degree with at least 55% of the marks or its equivalent grade of B in the 7 point scale apart from possessing 'Ph.D.' along with experience of 15 years if the selection is from Professor's Grade and 10 years experience if the selection is from the Reader's Grade. The learned counsel further contended that by virtue of the powers vested with the UGC, under Section 26(e) of the UGC Act, 1956 (hereinafter referred to as 'the UGC Act), the qualifications prescribed by the UGC alone would prevail and any claim of either the second respondent or the third respondent university to the effect that the qualifications can also be prescribed by the third respondent is not valid. According to the learned counsel, the post of a 'Principal' can only be made by way of selection for appointment from 'open advertisement' and can never be by way of promotion. The learned counsel relied upon a communication of the UGC dated 11-10-2001 in support of his submissions. 3. While referring to Rule 11(4) of the rules framed under the Tamil Nadu Private Colleges Regulation Rules, 1976, the learned counsel contended that by virtue of Article 254 of the Constitution, the power given to the UGC under Section 26(e) of the UGC Act would prevail, that in any event, when even Rule 11(4) talks of qualified teachers, the qualification as prescribed by the UGC is 'Ph.D. along with possession of P.G. with at least 55% of marks and inasmuch as, the fourth respondent does not possess a 'Ph.D', he is not even entitled to be considered. The learned counsel also relied upon G.O.Ms.No.111 dated 24 -3-1999, by which, the State of Tamil Nadu adopted the UGC Regulations prescribing the qualifications for the post of 'Principal'. 4. The learned counsel relied upon a decision of the Division Bench of this Court reported in 1994 (1) M.L.J 130 (D.JEYASELVI versus THE GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRETARY EDUCATION DEPARTMENT, MADRAS & ANOTHER) in support of his conten that when the rule specifies that the promotion should be based on merit and ability, the Court should still be satisfied based on the records of the Selection Committee that on what basis, it came to the conclusion as between two candidates, the one selected was superior both on merit and ability. 5. The learned counsel also relied upon A.I.R.1987 SC 311(FRANK ANTHONY PUBLIC SCHOOL EMPLOYEES' ASSOCIATION versus UNION OF INDIA & OTHERS) in particular, Para 16 to stress upon the need for prescribing the minimum qualifications of teachers, which, in turn, was to ensure that they render better service to the institution and the students. 6. He also relied upon the judgment reported in A.I.R.1995 SC 336 ( UNIVERSITY OF DELHI versus RAJ SINGH & OTHERS), Para 21 to contend that the UGC regulations are intended to have the widest possible applications and that under Section 26 (1) (e) of the UGC Act, the UGC was the competent Authority to define the qualifications that are ordinarily required to the post of a lecturer. 7. As against the above submissions, Mr.AL.Somayaji, learned Senior counsel appearing for the second respondent contended that G.O.Ms.No.111 dated 24-3-1999 has been set aside by this Court in the Judgment reported in 2000(IV) CTC 641 and therefore, same cannot be relied upon. The learned Senior counsel contended that after the resolution of the third respondent dated 4-10-2001, by a communication dated 8-5-2002, final approval has been granted by the third respondent and therefore, the contention that the appointment of the fourth respondent lacks the approval of the third respondent cannot be considered. According to the learned Senior counsel, the petitioner having participated in the selection and lost his chance, it is no longer open to him to challenge the selection. It was further contended that when the contention relating to qualifications has not been specifically pleaded in the affidavit filed in support of the Writ Petition, such a contention cannot be permitted to be made at this stage. As regards the prescription of the qualification of the UGC, according to the learned Senior counsel, when the selection is made by way of promotion, the qualifications prescribed by the third respondent in its communication dated 19-7-1995 would prevail, as per which, the possession of Ph.D. is not required and therefore, the selection and appointment of the fourth respondent cannot be found fault with. The learned counsel relied upon G.O.Ms.No.1785 dated 5-12-1988 in support of the above submission. The learned counsel would also contend that as the selection of the fourth respondent was to the satisfaction of the third respondent University, the University went ahead to nominate the fourth respondent as the University representative on the Governing Body (Executive Committee of Gurunanak College, Velachery, Chennai-600 042) and also by including him as an ex-officio Member of the Academic Council of the third respondent University as per Section 23-A of The Madras University Act with effect from 01.10.2001. The learned counsel relied upon 1995 W.L.R. 420 (C.ARUMUGAM versus UNIVERSITY OF MADRAS, REP. BY ITS REGISTRAR, CHEPAUK, MADRAS) in support of his submissions. 8. Mr.Ezhilmani, learned counsel appearing for the third respondent, after referring to Section 19(1) of the Madras University Act, contended that the syndicate has been vested with the powers to prescribe the qualifications of teachers, that in the communication dated 19-7-1995, the University has prescribed the qualification for the post of 'Principal' by way of promotion which does not prescribe a 'Ph.D.' and therefore, the resolution of the third respondent dated 4-10-2001 provisionally approving the appointment of the fourth respondent and confirmation of the said approval in the communication dated 8-5-2002 will hold good. 9. Mr.Jyothi Mani, learned counsel for the petitioner, by way of reply, submitted that though the University made a vain attempt to insist that it can prescribe its own qualifications and sought for certain amendments, the UGC, in its communication dated 03.10.2001 to the third respondent University, made it clear that the University has got no power to grant any relaxation or exemption in regard to the qualifications prescribed by the UGC or rather prescribe any qualification which are contrary to the UGC regulations. Further, the learned counsel points out that the UGC has made its position very clear in its communication dated 11.10.2001 to All India Federation of University and College Teachers' Organisation to the effect that Ph.D. is a compulsory requirement for appointment of 'Principal' with effect from 24 .12.1998 as per the UGC regulations and that the regulations prescribing such qualifications with effect from 04.04.2000 are mandatory in nature. The said communication also made it clear that the post of 'Principal' has to be filled through direct recruitment only and no promotion is allowed. 10. The learned counsel also points out that the third respondent's communication to the Under-Secretary of UGC on 09.07.2002 stating that the qualification prescribed by the UGC was not applicable to the appointment of fourth respondent is quite contrary to the very UGC regulations and therefore, the same cannot be acted upon. As regards G. O.Ms.No.111 dated 24.03.1999, which was quashed by the learned single Judge, the learned counsel contended that as against the order of the learned single Judge, W.A.No.1347 of 2001 has been preferred and that the same is also pending. The learned counsel, therefore, contended that the petitioner being superior in qualification as well as on merits when compared to the fourth respondent, while setting aside the order impugned in the Writ Petition, the petitioner should be directed to be appointed to the post of 'Principal' of the second respondent institution. 11. After hearing the learned counsel for the petitioner and the respondents, the questions that arise for consideration and the points to be decided can be formulated as under: (i) What is the qualification that is prescribed for the post of a ''Principal''? (ii) Whether the post of a ''Principal'' can be filled by way of promotion or should be done only through open advertisement? (iii) Whether the fourth respondent satisfies the prescribed qualification for holding the post of a 'Principal'? (iv) Whether the petitioner can be appointed as ''Principal'' of the second respondent college? 12. Before dealing with the various questions that arise for consideration, I wish to steer clear the stand of the second respondent as regards the competence of the petitioner to raise this issue without making any reference to it in the affidavit filed in support of the Writ Petition. For that purpose, Mr.AL.Somayaji, learned Senior counsel appearing for the second respondent relied upon 1998(7) SCC 469 ( RANI LAXMIBAI KSHETRIYA, GRAMIN BANK versus CHAND BEHARI KAPOOR AND OTHERS). I am unable to accept the contention of the second respondent, as well as, the reliance placed upon the above referred to judgment. In fact, in para 8 of the said judgment, the Hon'ble Supreme Court has set out the legal position as under: "8. ... It is too well settled that the petitioner who approaches the Court invoking the extraordinary jurisdiction of the Court under Article 226 must fully aver and establish his rights flowing from the bundle of facts thereby requiring the respondent to indicate its stand either by denial or by positive assertions. But in the absence of any averments in the writ petition or even in the rejoinder-affidavit, it is not permissible for a court to arrive at a conclusion on a factual position merely on the basis of submissions made in the course of hearing. The High Court, therefore, in our view committed serious error in coming to the conclusion that there existed vacancies in the post of Field Supervisor on the materials produced before it. ..." (Underlining is mine) From a reading of the above extracted portion of the judgment, I am convinced that the issue which has now been raised in the course of submission by the learned counsel for the second respondent cannot be said to be purely a question of fact, but a mixed question of fact and law. The factual aspect of it relates to the possession of certain qualifications, while the legal aspect of it is whether such qualification would fit into the qualifications prescribed under the Regulations framed by the UGC. As far as the possession of qualifications is concerned, the same is not in dispute as between the parties. As far as the legal issue raised is concerned, the same is covered by the Regulations framed by the UGC. Therefore, the reliance placed upon the above referred to judgment cannot be applied to the case on hand. I, therefore, reject the said submission made on behalf of the second respondent. While dealing with the first question, when the contentions of the petitioner and the second and third respondents are considered, while the petitioner would contend that the qualification prescribed by the UGC Regulations alone can prevail, according to the second and third respondents, the qualification prescribed by the UGC Regulations will apply only in the case of a open market selection, while when a selection is made from amongst the existing teachers in the college itself, the qualification prescribed by the third respondent University which was in vogue and which was also spelt out in the third respondent's communication dated 19-7-1995 alone will apply. According to the learned counsel for the petitioner, the qualification was prescribed by the UGC Regulations in March 2000 which was also adopted by the third respondent University in its Syndicate Meeting held on 12-1-2001, which was also subsequently adopted by the Government of Tamil Nadu in G.O.Ms.No.111 dated 24-3-1999. It was also stressed on behalf of the petitioner that by virtue of Section 26(e) of the UGC Act, the qualification prescribed by it should be scrupulously followed. The other material relied upon by the petitioner is the communication of the UGC dated 11-10-2001 to All India Federation of University & College Teachers Organisation, wherein, it was reiterated that possession of Ph.D. is a mandatory requirement for appointment of any person to the post of a 'Principal' with effect from 24-12-1998. As far as G.O.Ms.111 dated 24-3-1999, it is not in dispute that the said Government Order was quashed by a learned Single Judge of this Court in the Judgment reported in 2000(4) CTC 641. Even though the learned counsel for the petitioner would contend that the order of the learned Single Judge is subject matter of a Writ Appeal in W.A.No.13 47 of 2001, since as on date, the Government Order has been quashed, there is no point in referring to the said G.O. for considering the qualifications prescribed by the UGC and the application of it to the colleges affiliated to the third respondent University. 13. De hors the said G.O.111 dated 24-3-1999, Section 26(e) of the University Grants Commission Act 1956 (hereinafter called as 'UGC Act') makes it clear that the power is vested with the University Grants Commission to make regulations 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 instructions. It is by virtue of the said power vested with the UGC under Section 26(e) of the UGC Act, the regulations came to be framed by the UGC which came to be notified in March 2000 in super-session of the regulations issued earlier in the year 1983, 1985, 1991 and 1998. Regulation (2) of the said UGC Regulations makes it clear that no person should be appointed to a teaching post in an University or in any of the institutions including constituent or affiliated colleges recognized under Clause (f) of Section 2 of the UGC Act, 1956 or in an institution deemed to be a University under Section 3 of the said Act in a subject if he/she does not fulfill the requirements as to the qualifications for the appropriate subjects as provided in the Annexure. The Annexure has been captioned as under: "Minimum qualifications for the post of Professors, Principals, Readers and Lecturers in subjects other than Fine Arts, Management, Engineering and Technology in Universities or Colleges for appointment of persons through open advertisement and for their Career Advancement." Under the caption '1.0.0 Direct Recruitment', in so far as the post of ''Principal'' is concerned, in para 1.1.0 and 1.2.0, the qualifications required for the post of 'Principal' either from Professor's Grade or from the Reader's Grade respectively by way of direct Recruitment is shown, which reads as under: "1.1.0 'Principal' (Professor's Grade) 1. A Master's Degree with at least 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 published work. 3. Total experience of 15 years of teaching/Research in Universities/Colleges and other institutions of higher education. "1.2.0 'Principal' (Reader's Grade) 1. A Master's Degree with at least 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 published work. 3. Total experience of 10 years of teaching/Research in Universities/Colleges and other institutions of higher education." 14. As against the above prescription under the UGC Regulations, according to second and third respondents, there was a communication dated 19-7-1995 from the third respondent University to the Director of Collegiate Education, as well as, to all the affiliated Arts and Science Colleges of the third respondent University, wherein, the qualification prescribed for the post of a 'Principal' with the modification as suggested by the Academic Council dated 25-2-1995 has been indicated which reads as under: "Arts & Science Colleges: The Principal post may be filled either by promotion or by Director Recruitment through advertisement in leading dailies: I. BY PROMOTION: For promotion, teachers who are on regular service in the concerned college or in any other college under the control of the educational agency, are eligible for appointment provided they are Selection Grade Lecturers with a minimum of 16 years of service in the Lecturer's cadre (Persons with Ph.D. or M.Phil., will have service benefit of 3 years and 1 year respectively). Seniority will be considered only where merit and ability are approximately equal. 'Merit' can be referred in terms of 'Academic Excellence' and ' ability' in terms of NCC, NSS, Dy.Warden Conferences, Seminars, participation like organisation or International Conferences. II. BY DIRECT RECRUITMENT: For Director Recruitment, a P.G.Degree with minimum of 55% of marks and Ph.D. shall be insisted upon along with a minimum service of 13 years as Lecturer or equivalent post. In this regard I once again to reiterate that the Selection of Principal should be made through a duly constituted Selection Committee of the Governing Body/College Committee or the College and the particulars of the incumbent selected for the post has to be sent on request) along with a copy of the certificate from the Director of Collegiate Education, Madras, informing that "the incumbent is holding the post of Lecturer (Selection Grade -SC) together with his/her date of promotion to the post" for prior approval of the University." 15. While relying upon the said communication of the University, reliance was also placed upon G.O.Ms.No.1785 Education dated 5-12-1988, wherein, the State Government, while adopting the revised pay scales of College and University Teachers which were accepted by the UGC and communicated for the implementation and while referring to the scales of pay in which the Principals of the colleges should be placed, it is provided that appointment to the post of a 'Principal' should be made from among the holders of the posts of Lecturers (Selection Grade)/Readers in Colleges and that seniority in the post of Lecturer alone should be the criteria for the promotion. Reliance was also placed upon the said G.O. in order to contend that the Senior most person in the Department of College irrespective of his Ph.D. qualification, should be nominated and designated as 'Senior Lecturer/Selection Grade Lecturer/Reader and the Head of Department, though without any special pay to that post. By relying upon the above said G.O., and by reading the same along with the communication of the University dated 19-7-1995, it was contended that there could be an appointment of a person to the post of 'Principal' by way of promotion from among the Teachers who are on regular service in the college and that what was required was only that such Teacher should be a Selection Grade Lecturer with minimum of 16 years of service in the lecturer cadre. The said communication also provided that persons with Ph.D. or M.Phil., will only get a service benefit of three years and one year respectively and non-possession of Ph.D. would not disqualify a person from aspiring to become a 'Principal'. 16. In the light of the above stated provisions (i.e.) one by the UGC and the other by the third respondent University prescribing qualifications for the post of 'Principal', the question is, which is to prevail? 17. In this context, it would be relevant to refer to the resolution of the Syndicate Meeting held on 12-1-2001. In the said Meeting, the syndicate of the third respondent University considered the communication of the UGC dated 4-4-2000 containing the notification of March 2000, wherein, the present UGC Regulations 2000 came to be communicated to the third respondent University and in the said Meeting, the syndicate resolved to adopt the UGC Regulations 2000 in respect of Teachers in the affiliated Arts and Science Colleges of the third respondent University including minority institutions and placed the same before the Academic Council. The only minor modification was to the caption of the Annexure to the UGC Regulations 2000, wherein, apart from Fine Arts Management, Engineering and Technology, the third respondent University also added 'Medicine' and thereby wanted to state that such minimum qualifications prescribed would be applicable in respect of all other institutions except those which were excepted, in other respects the Annexure to the UGC Regulations 2000 was adopted in toto. 18. A perusal of the Annexure disclose that for the post of a ' Principal' either from Professor's Grade or Reader's Grade, apart from a Master's Degree with 55% of marks, a Ph.D. or equivalent published work is the minimum qualification. While in the case of Professor Grade, 15 years experience in teaching is required, in the case of Reader Grade 10 years experience in teaching is prescribed. Therefore, according to the UGC Regulations, it is crystal clear that the possession of a Ph.D. is a must for the post of 'Principal'. In the caption to the Annexure and also in the sub title above the post of 'Principal', it is stipulated that appointment of persons with the minimum qualification prescribed to be made through "open advertisement" "direct recruitment". The said Annexure prescribes the qualifications for other categories of Teachers as well. At the end of the Annexure, in the Notes, it is provided to what extent, any relaxation can be shown. But even in that Notes, there is no provision for relaxation in the matter of qualifications for any post, much less the post of ' Principal'. 19. While in Annexure, under the sub title 1.0.0., Direct Recruitment is shown under which the post of 'Principal', 'Professor, Reader, Lecturer for various faculties are shown, under the caption 'Career Advancement' in para 2.0.0., the various other posts are shown. While under the caption 'Selection Committees Recommended by the UGC' in para 3.0.0., the selection of candidates recommended by the UGC for various posts are shown. While for all other posts other than the post of 'Principal' apart from the mode of Direct Recruitment, the method of selection by way of promotion is also provided, in so far as the post of 'Principal' is concerned, the only method of appointment prescribed is by way of 'Direct Recruitment'. Therefore, it will have to be stated that for the post of 'Principal', the appointment as per the UGC Regulations can be made only by way of a Direct Recruitment and there is no scope for promoting a person from the existing Teachers of the Institution by following any other method. 20. Therefore, for the post of 'Principal' apart from Master's Degree, with minimum of 55% of marks or its equivalent grade, the possession of