IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.04.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.8089 to 8093,8116 to 8120, 8139 to 8144,8096 to 8101, 8181 to 8185, and 8533 of 2010 and connected Miscellaneous petitions S.Sriram .. Petitioner in WP.8089/10 P.Umasankar .. Petitioner in WP.8090/10 S.Vijaya Priya .. Petitioner in WP.8091/10 R.Sudha .. Petitioner in WP.8092/10 K.Balathandabani .. Petitioner in WP.8093/10 R.Kanagambal .. Petitioner in WP.8116/10 V.A.Sakthivel .. Petitioner in WP.8117/10 S.Meenashi .. Petitioner in WP.8118/10 P.Pitchaimuthu .. Petitioner in WP.8119/10 S.Packiyaraj .. Petitioner in WP.8120/10 M.Malathi .. Petitioner in WP.8139/10 P.Baskar .. Petitioner in WP.8140/10 K.S.Saravanakumar .. Petitioner in WP.8141/10 R.Chitra .. Petitioner in WP.8142/10 S.Muthulakshmi .. Petitioner in WP.8143/10 S.Rajkumar .. Petitioner in WP.8144/10 S.Udhayakumar .. Petitioner in WP.8096/10 O.Deepa .. Petitioner in WP.8097/10 M.Prabakar .. Petitioner in WP.8098/10 S.Anitha .. Petitioner in WP.8099/10 P.Maran .. Petitioner in WP.8100/10 F.John Paul .. Petitioner in WP.8101/10 R.Babunath .. Petitioner in WP.8181/10 C.Suresh .. Petitioner in WP.8182/10 G.Santhi .. Petitioner in WP.8183/10 K.Radhika .. Petitioner in WP.8184/10 E.Indhumathi .. Petitioner in WP.8185/10 N.Nandakumar .. Petitioner in WP.8533/10 Vs 1.The Government of Tamil Nadu, Represented by Secretary, Education Department, Secretariat, Chennai. 2.The Director of Collegiate Education, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3.The Teachers Recruitment Board, Rep. By Chairman, E.V.K.Sampath Maaligai, DPI Compound, College Road, Chennai -6. ...Respondents in all WPs. Prayer :Petitions filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus,(in WPs.8089 to 8093,8116 to 8120,8139 to 8144,8096 to 8101,8181 to 8185/10 and writ of certiorari (in WP.8533 of 2010) calling for the records of the third respondent ending with Notification dated 29.03.2010 in Advt No.4/10 in Tamil Daily "Daily Thanti" dated 30.03.2010 and quash the same and consequently direct the respondents to comply with the directions of the UGC vide its Proceedings F.No.1-1/2002(PS)PT File -III dated August 2009. For Petitioners W.P.Nos.8089 to 8093, 8116 to 8120 8139 to 8144, 8096 to 8101, 8181 to 8185/2010 : Mr.N.A.Nissar Ahmed W.P.No.8533 of 2010 : Mr.S.Sivakumar For Respondents : Mr.K.H.Ravikumar,G.A C O M M O N O R D E R The petitioners are all working as Guest Lecturers in various Government Colleges. The petitioners have come forward with the present writ petitions challenging the Notification dated 29.03.2010 in Advt No.4/10 published by the Teachers Recruitment Board (TRB). 2. By the said notification, applications were called for direct recruitment to the post of Assistant Professors in the Tamil Nadu Collegiate Educational Service for the year 2010. The applications were invited for various posts listed in the advertisement and the qualification for the said post is set out in Paragraph 3 of the notification which is as follows:- "a)All candidates other than SC/ST: Pass in Post- Graduate Degree in the relevant subject with a minimum of 55% marks and a pass in the UGC/CSIR/JRF/NET/SLET/SLST in the relevant subject. (Or) Pass in Post graduate Degree in the relevant subject with a minimum of 55% marks and Ph.D in the relevant subject. b)For SC/ST candidates and all Physically handicapped candidates: Pass in Post-Graduate Degree in the relevant subject with a minimum of 50% marks and a https://hcservices.ecourts.gov.in/hcservices/ pass in the UGC/CSIR/JRF/NET/SLET/SLST in the relevant subject. (or) Pass in Post graduate degree in the relevant subject with a minimum of 50% marks and Ph.D in the relevant subject." 3. The qualifications prescribed therein is as per the directions of the State Government which had to implement the qualifications prescribed by the UGC vide its statutory regulation made in July 2009. Therefore, under the present notification, every candidate who seeks for appointment must necessarily possess not only the Post Graduate Degree in the relevant subject with a minimum of 55% marks but must have passed the UGC/CSIR/JRF/NET/SLET/SLST in the relevant subject. 4. The contention of the petitioners was that they are not in possession of the SLET/NET qualification as of now. They relied upon a communication sent by the Joint Secretary of University Grants Commission (UGC) to all the Vice Chancellors in F.No.1-1/2002(PS)PT File -III dated August 2009. In page 2, it was stated as follows: "This is to further inform that those presently working as teachers in ad hoc capacity but are not NET qualified shall be given a time period of two years (i.e.four attempts at NET)to qualify in the NET/SLET and during this period of time of two years, colleges and universities may not fill teaching posts presently held by them on ad hoc basis on regular basis." (Emphasis added) 5. Therefore, according to the petitioners since the UGC itself has given two years time for acquiring NET/SLET qualification, they should not be denied the benefit of acquiring such qualification. In the light of the above, they seek for continuance in the posts till they acquire the NET/SLET qualification and also qualify themselves for a regular post. 6. Mr.K.H.Ravikumar, learned Government Advocate appearing for the respondents stated that at the end of the academic year, all the guest lectures are directed to be ousted from service when the regular candidates are recruited. They are likely to replace all the adhoc appointees. He also submitted that the letter referred to by the petitioners relates only to adhoc appointment and it has got nothing to do with the recruitment of regular candidates by the State Government in the light of the rules framed by the State Government under Article 309 of the Constitution which is in consonance with the Regulations made by the UGC. He also produced written instructions from the Director of Collegiate Education dated 31.03.2010 wherein the Guest Lecturers who have been appointed for the second shift classes were directed to be stopped with effect from 15.04.2010. Any how, this Court is not inclined to go into the said communication sent by the Director and the prayer made by the petitioners cannot be countenanced about their continuance in the adhoc post. https://hcservices.ecourts.gov.in/hcservices/ 7. The petitioners' contention that the letter of the UGC will have bearing on the impugned notification cannot be countenanced for two reasons: The UGC itself by a statutory regulation has mandated the Universities and Governments to recruit Assistant Professors strictly in accordance with the statutory regulations. Hence, there is no scope for grant of any exemption. 8. This Court in a batch of writ petitions filed by M.Phil candidates who had obtained degrees prior to 31.12.1993 when wanted to have relaxation on the basis of old regulation was rejected by this Court in W.P.No.7116 of 2010 and batch cases. In paragraphs 15 to 22, it was observed as follows: 15. The Supreme Court vide its judgment in University of Delhi v. Raj Singh, 1994 Supp (3) SCC 516 in paragraph No.20 after upholding the view of the University Grants Commission to prescribe such qualifications, which will have a bearing through out the country and in paragraph 21 the regulation itself was analysed. It was held in paragraph 21, which is as follows: "21. We now turn to analyse the said Regulations. They are made applicable to a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, every institution, including a constituent or an affiliated college recognised by the UGC in consultation with the University concerned, and every institution deemed to be a University. The said Regulations are thus intended to have the widest possible application, as indeed they must have if they are to serve the purpose intended, namely, to ensure that all applicants for the post of lecturer, from whichever University they may have procured the minimum qualificatory degree, must establish that they possess the proficiency required for lecturers in all Universities in the country. This is what clause 2 of the said Regulations mandates, thus: “No person shall be appointed to a teaching post in University ... in a subject if he does not fulfil the requirements as to the qualifications for the appropriate subject as provided in Schedule 1.” The first proviso to clause 2 permits relaxation in the prescribed qualifications by a University provided it is made with the prior approval of the UGC. This is because the said Regulations, made under the provisions of Section 26(1)(e), define the qualifications that are ordinarily and not invariably required https://hcservices.ecourts.gov.in/hcservices/ of a lecturer. The second proviso to clause 2 makes the application of the said Regulations prospective. Clause 3 of the said Regulations provides for the consequence of the failure of a University to comply with the recommendation made in clause 2 in the same terms as are set out in Section 14 of the UGC Act. The provisions of clause 2 of the said Regulations are, therefore, recommendatory in character. It would be open to a University to comply with the provisions of clause 2 by employing as lecturers only such persons as fulfil the requirements as to qualifications for the appropriate subject provided in the schedule to the said Regulations. It would also be open, in specific cases, for the University to seek the prior approval of the UGC to relax these requirements. Yet again, it would be open to the University not to comply with the provisions of clause 2, in which case, in the event that it failed to satisfy the UGC that it had done so for good cause, it would lose its grant from the UGC. The said Regulations do not impinge upon the power of the University to select its teachers. The University may still select its lecturers by written test and interview or either. Successful candidates at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and, therefore, all who have cleared it stand at the same level. There is, therefore, no element of selection in the process. The University’s autonomy is not entrenched upon by the said Regulations." The non-adherence of such regulations will also result in instant punishment, namely withholding of the University Grants Commission grants, which was also referred to in paragraph 24 and it reads as follows: "24. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said Regulations; or it may seek prior approval for the relaxation of this requirement in a specific case; or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC’s approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the UGC, forfeit its grant from the UGC. If, however, it did show cause to the satisfaction of the UGC, https://hcservices.ecourts.gov.in/hcservices/ it not only would not forfeit its grant but the appointment made without obtaining the UGC’s prior approval would stand regularised. Therefore, the petitioners cannot contend and rightly agreed by the learned senior counsel for the petitioners that there is lack of jurisdiction in the University Grants Commission to prescribe minimum standards for recruitment. 16. Mr.K.H.Ravikumar, learned Government Advocate also brought to the notice of this Court a judgment of the Division Bench of this Court in Secretary, Kamaraj College, Thoothukudi vs. D.S.Arulmani, Reader and Head of Department of Tmail, Kamaraj College, Thoothukudi and others reported in (2008) 2 MLJ 593, wherein the insistence of the UGC regulations in relation to appointment of Teachers in private Colleges came up for consideration. The Division Bench after referring to all the prior decisions on this field including the University of Delhi's case (1994 Supp (3) SCC 516) in paragraph 26 held that the qualifications prescribed by the UGC regulations indicate the bench mark or bottom line i.e., the eligibility criteria for selection. After upholding the validity of those UGC regulations, it was held that they are legally valid and there are no grounds to strike down those regulations. Though the learned senior counsel for the petitioners contended that the judgment is confined to the facts of the case and has no bearing on the present case, this Court is unable to agree with the said submission. 17. Subsequent to the Division Bench order, this Court had an occasion to consider a Government Order issued pursuant to the exercise of power under Article 309 of the Constitution. The issue arose was whether the Government can prescribe qualification contrary to the UGC regulation vide the case relating to Jeevarathinam (Ms.)and Others Vs. Government of Tamil Nadu, rep. By Secretary to Government, Law Department, Chennai and others reported in (2008)7 MLJ 1074. In paragraphs 35 and 37, it was observed as follows: "35. There is no averment in the counter affidavit filed by the State as to why the UGC Regulations dated 4.4.2000 was not adhered to. Even the Tamil Nadu Dr.Ambedkar Law University, to which the Government Law Colleges are affiliated, has been following the qualifications prescribed by the UGC for the post of Lecturers as can be found in the advertisement dated 10.11.2006 a copy of which is enclosed in the typed set. https://hcservices.ecourts.gov.in/hcservices/ 37. Very recently, a Division Bench of this Court vide its decision in Secretary, Kamaraj College, Tuticorin Vs. D.S. Arulmani and Others (2008) 2 MLJ 593 dealt with the application of G.O.Ms.No.111 Higher Education Department dated 24.3.1999 vis-a-vis the Private Colleges Act and held that a legislation made by the State cannot override the said G.O. And UGC Regulations are binding on the affiliated Colleges in the matter of selection to the posts of Lecturers." 18. Therefore, there can be no challenge to the UGC exercising its power in terms of Entry 66 of List I of Schedule VII of the Constitution. The State Government in that regard is bound to follow the UGC regulations since the regulations occupy the field over which the State has no control. 19. The second question whether the group of petitioners before this Court by not having the minimum eligibility as per the 2009 Regulations are entitled for exemption and that too by the order of the Court or by striking out the existing Regulations, can be countenanced by this Court. This Court is unable to go through such an exercise only because the petitioners were given a promise, (if at all there was any promise) on this issue, for not acquiring NET/SLET qualification. 20. In this context, it is necessary to refer the judgment of the Supreme Court in State of Maharashtra vs. Shashikant S.Pujari and others reported in (2006) 13 SCC 175, wherein a similar question came up for consideration. In that judgment, an appointment was denied on a regular basis on the ground of non-fulfilment of requisite qualification. When the same was not accepted by the College, a Writ Petition was filed and the Writ Petition was allowed by the Bombay High Court. As against the decision of the Bombay High Court, the State of Maharashtra preferred an appeal before the Supreme Court. The Supreme Court set aside the decision of the Bombay High Court and in paragraphs 39 and 40, it is held as follows: 39. If that is so, the High Court must be held to have committed an error in arriving at the said decision. We may also notice that he was found unsuitable, as being not possessed of the requisite qualifications. https://hcservices.ecourts.gov.in/hcservices/ 40. The respondent might have been appointed by the College, but the State while undertaking to bear the financial burden of payment of salaries and other remunerations to teachers of a college is not bound thereby. It is entitled to contend that all appointments must be in accordance with the statute. (See A. Umarani v. Registrar, Coop. Societies; Mahendra L. Jain v. Indore Development Authority; National Fertilizers Ltd. v. Somvir Singh and Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad.)" 21. Similarly in Mohammed Sohrab Khan vs. Aligarh Muslim University and others reported in (2009) 4 SCC 555, the Supreme Court held that if the educational qualifications are prescribed in an advertisement, the authorities cannot deviate from the advertisement. Therefore, no direction can be given by this Court directing the State of Tamil Nadu or its agency, namely the Teachers Recruitment Board to deviate from the advertisement published by them and by giving relaxation in favour of the petitioners herein. 22. The Supreme Court once again had an occasion to consider the Regulations framed under the IGNOU Act and the recruitment Rules framed by the State Government under Article 309 of the Constitution vide its judgment in Annamalai University rep.by its Registrar v. Secretary to Government, Information & Tourism Department., reported in (2009) 4 SCC 590. In that case, in paragraph 56, the Supreme Court held that no relaxation can be granted on the basis of any implications or on the basis of prior practice. In paragraph 56, it was held as follows: "56. Grant of relaxation cannot be presumed by necessary implication only because UGC did not perform its duties. Regulation 2 of the 1985 Regulations being imperative in character, non-compliance therewith would entail its consequences. The power of relaxation conferred on UGC being in regard to the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the Regulations on the merit of each case do not lead to a conclusion that such relaxation can be granted automatically. The fact that exemption is required to be considered on the merit of each case is itself a pointer to show that grant of relaxation by necessary implication cannot be inferred. If https://hcservices.ecourts.gov.in/hcservices/ mandatory provisions of the statute have not been complied with, the law will take its own course. The consequences will ensue." (Emphasis added) Further, it was also held that the University Grants Commission cannot give any relaxation from the basic things. In paragraph 57, it was held that when a mandatory provision of a statute has not been complied with by an administrative authority, it would be void and such a void order cannot be validated by inaction." 9. Though Mr.N.A.Nissar Ahmed,learned counsel for the petitioners contended that there was no SLST examination conducted in the State for long time and therefore they have no scope to qualify themselves cannot be accepted. In fact in the WPs filed by the M.Phil holders of Pre-December 1993 that there was a promise granted earlier and therefore, they should not be subjected to the present qualification was also rejected by this Court. 10. If the contentions of the petitioners are accepted, it will result in their adhoc appointments to be continued, which is diametrically opposite to the judgment of the Division Bench in M.Saravanakumar and others v. The Secretary to Government Education Department, Chennai reported in (2005) 3 M.L.J. 538. In paragraph 37 of the judgment, it was observed as follows:- "37. We therefore direct that after 31.03.2006 all appointments of lecturers, and other teaching posts, including Principals, in Government Colleges in Tamil Nadu shall be made on a regular basis by selection through the teachers recruitment board or any other legally constituted selection body and not by appointing guest lecturers. Such regularly selected teachers will be paid the U.G.C.grade salaries and guaranteed security of tenure. They shall also be given all benefits and perquisites allowable to regularly selected teachers. No guest lecturers or ad hoc lecturers will be appointed or continued after 31.3.2006." Hence, even the UGC cannot force the State Government to violate the directions issued by this Court. 11. Apart from that, when the State Government recruits candidates on a regular basis, it has to fulfill the statutory norms as per the UGC regulations. It has been done in this case and upheld by this Court. Therefore, the petitioners' cannot stall such a recruitment. Unless they are qualified in terms of the new regulations, the question of this Court coming to their help and interdicting the Government order will not arise. Any direction in this regard as held by this Court in W.P.No.7116 of 2010 and batch https://hcservices.ecourts.gov.in/hcservices/ cases will curtail the power of the State Government to prescribe qualification and also the UGC from establishing the academic standards in the field of higher education. 12. In the light of the above, all the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar svki To 1.The Secretary, The Government of Tamil Nadu, Education Department, Secretariat, Chennai. 2.The Director of Collegiate Education, Chennai. 3.The Chairman, The Teachers Recruitment Board, E.V.K.Sampath Maaligai, DPI Compound, College Road, Chennai -6. + 27 cc to M/s.N.A.Nissar Ahmed,Advocate,SR.28184 to 28188, 28195 to 28199, 28201 to 28211, 28189 to 28194 + 1 cc to Government Pleader,SR.27769 W.P.Nos.8089 to 8093,8116 to 8120, 8139 to 8144,8096 to 8101, 8181 to 8185, and 8533 of 2010 SSN(CO) EM/13.5.10 https://hcservices.ecourts.gov.in/hcservices/