IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 22..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 3028, 3401, 4044, 4795 and 8723 of 2007 and M.P. Nos. 1 to 3 and 6 of 2007 in W.P. No. 3028 of 2007, M.P. No. 1 of 2007 in W.P. No. 3401 of 2007, M.P. Nos. 1 and 2 of 2007 in W.P. No. 4044 of 2007, M.P. No. 2 of 2007 in W.P. No. 4795 of 2007 and M.P. No.1 of 2007 in W.P. No.8723 of 2007 W.P. No. 3028 of 2007:- Mrs. Jeevarathinam .. Petitioner vs. 1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George, Chennai 2. The Secretary to Government P&AR Department Government of Tamil Nadu Fort St. George Chennai 3. Teachers Recruitment Board Government of Tamil Nadu Rep.by its Chairman E.V.K. Sampath Maligai DPI Compound College Road, Chennai 4. Sakthivel 5. Manjula 6. Bhuvaneshwari 7. Thagaramani 8. Gowriramesh 9. R. Kokila https://hcservices.ecourts.gov.in/hcservices/ 10. K.Latha 11. N. Ramapiran Ranhjithsingh .. Respondents (RR 10 and 11 impleaded vide order dated 11.4.2007 in M.P. Nos. 4 and 5 of 2007) Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to the advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 called for direct recruitment of Lecturers (Senior Scale) for Government Law Colleges (2006-07), prospectus and the consequential order of the third respondent vide Rc.No. 2630/B6/2006 dated 09.01.2007 and quash the same and direct the respondents to reissue the advertisement and prospectus in accordance with law. W.P. No. 3401 of 2007:- S.Murugesan .. Petitioner vs. 1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai 2. The Secretary to Government P&AR Department Government of Tamil Nadu Fort St. George Chennai 3. Teachers Recruitment Board Government of Tamil Nadu Rep.by its Chairman E.V.K. Sampath Maligai DPI Compound College Road Chennai 4. Bhuvaneshwari 5. Jayashree 6. R. Kalpana 7. S. Durga Lakshmi .. Respondents https://hcservices.ecourts.gov.in/hcservices/ (R 7 impleaded vide order dated 11.3.2008 in M.P. No. 1 of 2008) Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Mandamus forbearing the respondents 1 to 3 from in any way selecting or appointing the respondents 4 to 6 for the post of Lecturers (Senior Scale) to the faculty and the recruitment on the basis of faculty for Government Law Colleges pursuant to the advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 and consequently direct the respondents 1 to 3 to select and appoint the petitioner as Lecturer (Senior Scale) in the Government Law Colleges. W.P. No. 4044 of 2007:- D. Kannan .. Petitioner vs. 1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai 2. The Chairman Teachers Recruitment Board E.V.K. Sampath Maligai DPI Compound College Road Chennai 3. The Member Secretary Teachers Recruitment Board E.V.K. Sampath Maligai DPI Compound College Road Chennai 4. D. Bhuvaneshwari 5. P. Sakthivel 6. S. Manjula 7. K.Latha 8. N. Ramapiran Ranhjithsingh .. Respondents (RR 7 and 8 impleaded vide order dated 11.4.2007 in M.P. Nos. 3 and 4 of 2007) https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records of Respondents 2 and 3 relating to the advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 called for direct recruitment of Lecturers (Senior Scale) for Government Law Colleges (2006-07), prospectus and quash the selection by the Teachers Recruitment Board and direct the Teaches Recruitment Board to implement UGC noms and G.O. Ms. No. 105 dated 20.6.2000 by recalling of the fresh advertisement for direct recruitment for Lecturers (senior scale) for Govt. Law College (2006-2007). W.P. No. 4795 of 2007:- D. Purushothaman .. Petitioner vs. 1. Teachers Recruitment Board Government of Tamil Nadu Rep.by its Chairman E.V.K. Sampath Maligai DPI Compound College Road Chennai 2. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai 3. K.Latha 4. N. Ramapiran Ranhjithsingh .. Respondents (RR 4 and 5 impleaded vide order dated 11.4.2007 in M.P. Nos. 3 and 4 of 2007) Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records pertaining to the impugned notification issued by the first respondent in Advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 published in the New Indian Express and quash the same and direct the respondents to follow the qualification prescribed by the University Grants Commission as educational qualification for filling up the post of Lecturer in the Government Law Colleges. W.P. No. 8723 of 2007:- https://hcservices.ecourts.gov.in/hcservices/ D. Binu mole .. Petitioner vs. 1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai 2. The Chairman Teachers Recruitment Board E.V.K. Sampath Maligai DPI Compound College Road Chennai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records of Respondents 1 and 2 relating to the advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 called for direct recruitment of Lecturers (Senior Scale) for Government Law Colleges (2006-07), prospectus and quash the selection by the Teachers Recruitment Board and direct the Teaches Recruitment Board to implement UGC noms and G.O. Ms. No. 105 dated 20.6.2000 by recalling of the fresh advertisement for direct recruitment for Lecturers (senior scale) for Govt. Law College (2006-2007). For Petitioners : Mr. R. Shivakumar in W.P. Nos. 3028 and 3401 / 2007 For Official respondents: Mr. G. Sankaran, Spl. GP Assisted by Mrs. C.K. Vishnupriya, AGP For RR4 – 6 in : Mr. L. Chandrakumar W.P. Nos. 3028 & 4044 of 2007 For R7 in W.P. No. 3401 of 2007 For RR 10 & 11 : Mr. AR.L. Sundaresan, SC in W.P. No. 3028/2007, for M/s AL. Ganthimathi For RR7 & 8 in W.P. No. 4044 of 2007 & For RR3 & 4 in W.P. No. 4795 of 2007 https://hcservices.ecourts.gov.in/hcservices/ For R6 : Mr. M. Sriram in W.P. No. 3401 of 2007 For Petitioners : Mr. K. Kumar, SC in W.P. Nos. 4044/2007 & for Mr. G. Muthukumar 8723 of 2007 For Petitioner : Ms. S.T.P. Kuilmozhi in W.P. Nos. 4795/2007 C O M M O N O R D E R These matters were directed to be posted before this Court for final disposal by the orders of the Hon'ble Chief Justice dated 10.7.2008. 2. Heard the arguments of the learned counsel for the parties and perused the records. 3. The short question that arises for consideration in these writ petitions is whether the State of Tamil Nadu was correct in omitting to notify that the candidates who had applied for the post of Lecturer (Senior Scale) must have their Post Graduate Degree in the relevant subject. 4. The answer to this question will have a great bearing on the future legal education in the State of Tamil Nadu. 5. The Law Commission headed by the doyen of the Indian Bar Shri M.C. Setalvad in the report on "Reform of Judicial Administration" described the situation then prevailing as 'chaotic' and the law graduates churned out as 'half baked lawyers who do not know even the elements of law' and went on to describe them as 'drones' and 'parasites' let loose on society. 6. Speaking at the All India Conference of Lawyers on Legal Education and Training held at New Delhi on 18.11.1994, the then Chief Justice of India A.M. Ahmadi, after referring to the Report of the Law Commission, observed as follows:- "If the standard of legal education in law schools is poor and if enrolment of such 'half-baked' untrained graduates is automatic, as is the position today, the burden has to be borne by the judiciary at all levels since they are, to use the expression of Shri Setalved, 'let loose' on the Judiciary. The unbecoming scenes which are witnessed in courts are largely on account of lack of proper training in law and ethical values and the desire to make a fast buck. The justice delivery system depends on the https://hcservices.ecourts.gov.in/hcservices/ quality of the Bar and, therefore, the Judiciary is vitally interested in the improvement of legal education in the country. I am, therefore, of the opinion that the Bar, the Judiciary and the UGC must join hands to raise the standard of legal education in the country." 7. Even before the address made by the then Chief Justice, he was part of a committee of three Judges to submit a Report on Legal Education and Entry into Legal Profession. The said Committee was formed pursuant to the resolution of the Chief Justices' Conference held in December 1993. The Committee elicited opinion of the various Chief Justices. While responding to the questionnaire sent by the Committee, some Chief Justices from various High Courts pointed out that the standard of teaching had gone down and there are no proper libraries and the subjects prescribed in the syllabus were out-dated and that sometimes teachers were assigned subjects in which they had no knowledge of specialisation. [See Indian Bar Review Vol. XXII (4) 1995]. 8. Subsequently, the Conference of the Law Secretaries and Law Ministers' working group on Legal Education was held in Bhubaneshwar during September 1995. The Law Ministers attending the conference expressed their concern and the deteriorating standards in legal education. They were of the opinion that successful strategy for improving legal education must take into account several elements listed out by them and one of the elements listed by them is found in their recommendations as Serial No. xv, which is follows:- "Post-graduate courses in law should not be allowed to be taught either in morning / evening colleges or through correspondence courses. Such courses should not be allowed in institutions which did not have libraries that proposed latest books and periodicals in law and competent teachers and staff." The proposals made by the Bhubaneshwar Conference came to be accepted by the Bar Council of India at its meeting held on 04.11.1995. 9. Lamenting on the existing state of legal education, the then Chairman of the Bar Council of India, in his introductory note to the Special Number on Legal Education of the Indian Bar Review, wrote as follows:- "The Bar Council is now taking steps to weed out sub-standard institutions after identifying them either on the basis of inspection report or on receipt of authentic information about the poor https://hcservices.ecourts.gov.in/hcservices/ quality of legal education imparted there. The Council has recently amended its rules with a view to improving the quality of legal education in the law colleges by specifying the total number of working hours, proportion of whole-time teachers, the qualifications of teachers, funds to be set apart for construction of building and improvement of library." 10. In this context, the University Grants Commission (UGC) revised the qualifications for the post of Lecturers including Law Lecturers by its direction dated 19.9.1991. “Lecturer (a) Arts, Sciences, Social Sciences, Commerce, Education, Physical Education, Foreign Languages and Law: Good academic record with at least 55% marks or an equivalent grade at Master’s degree level in the relevant subject from an Indian university or an equivalent degree from a foreign university. Candidates besides fulfilling the above qualifications should have cleared the eligibility test for Lecturers conducted by UGC, CSIR or similar test accredited by the UGC.” 11. Subsequently, the UGC issued the Regulations known as University Grants Commission (Minimum Qualifications required for the appointment and Career Advancement of teachers in Universities and institutions affiliated to it) Regulations, 2000 reiterated the same qualification and issued a fresh Notification dated 04.4.2000. 12. As to the binding nature of such a direction in relations to Law Colleges came to be considered by the Supreme Court in State of Maharashtra v. Shashikant S. Pujari [2006 (13) SCC 175]. In this regard, paragraphs 23 to 25 of the said judgment may be usefully extracted below:- Para 23: "The question with regard to retrospective effect of the said resolution will have to be answered having regard to the fact situation obtaining herein. If prior to October 1991, the respondent was validly appointed, he could justifiably contend that the 1991 Regulations could not have been given a retrospective effect. With a view to examine the said question, we may notice the following provisions of the Act. https://hcservices.ecourts.gov.in/hcservices/ Para 24: Section 14 of the Act reads as under: “14. Consequences of failure of universities to comply with recommendations of the Commission.—If any university grants affiliation in respect of any course of study to any college referred to in sub-section (5) of Section 12-A in contravention of the provision of that sub-section or fails within a reasonable time to comply with any recommendation made by the Commission under Section 12 or Section 13, or contravenes the provisions of any rule made under clause (f) or clause (g) of sub-section (2) of Section 25, or of any regulation made under clause (e) or (f) or clause (g) of Section 26, the Commission, after taking into consideration the cause, if any, shown by the university or such failure or contravention, may withhold from the university the grants proposed to be made out of the fund of the Commission.” Para 25: Section 26(1)(e) reads as under: “26. Power to make regulations.—(1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder,— * * * (e) 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;” [Emphasis added] 13. Further, in a subsequent judgment, the Supreme Court in Veer Kunwar Singh University Ad hoc Teachers Association and others v. The Bihar State University (C.C.) Service Commission and others [2007 (4) Supreme 376] in paragraph 35 held as follows:- Para 35: "Creation of sanctioned posts is a sine qua non for recruitment to the post of lecturers. Adherence to the statutory provisions therefor is imperative in character. No doubt the qualification for holding the post of lecturer has since been changed in terms https://hcservices.ecourts.gov.in/hcservices/ of the ordinance promulgated in the year 1993, but then the same was done as per the directions of the University Grants Commission. The colleges whether constituent or recognized must have lecturers who are qualified to hold the post. Qualification to hold the post of lecturer is fixed by the University Grants Commission. A University can ignore the directions of the University Grants Commission in this behalf only at its own peril and risk of derecognition. Neither it is permissible for a University to contravene the directions of the University Grant Commission nor, in our opinion, is it permissible for a court of law to issue a direction contrary thereto...." [Emphasis added] 14. In the present case, the State of Tamil Nadu, which is running several Law Colleges in the State and which are affiliated to Tamil Nadu Dr. Ambedkar Law University had originally framed Special Rules under Article 309 of the Constitution and constituted a service known as the Tamil Nadu Legal Educational Service. The said service comprised of a Director of Legal Studies, Professors and Junior Professors. At that time, the Junior Professors were categorised as Category II and the qualification prescribed for the said post was an M.L. Degree of the Madras University or a Degree of equivalent standard. Neither any minimum marks nor subject specialisation had been mentioned therein. 15. Subsequently, when the UGC recommended pay scales for Colleges and University Teachers pursuant to the recommendations of Mehrotra committee, the State Government, after consulting all stake-holders including the Director of Legal Studies, issued G.O. Ms. No. 1785 Education Department dated 05.12.1988. In that G.O., when dealing with the Legal Studies Department, it reclassified the post of Junior Professor as Lecturer (Senior Scale) and in paragraph 4.10,it was indicated as under:- "(x) The minimum qualification required for appointment to the posts of Lecturers will be those prescribed by the U.G.C. from to time. Generally, the minimum qualifications for appointment to the post of Lecturers in the scale of pay Rs.2,200-4,000 shall be Master's Degree in the relevant subject with at least 55 per cent marks or its equivalent grade and good academic record." 16. Thereafter, pursuant to the Rastogi Committee Report, the UGC further recommended revision of scales of pay and the same was accepted by the Government of India. The State Government accepting the said report, revised the scale of pay of the https://hcservices.ecourts.gov.in/hcservices/ teachers working in the Government and aided colleges and issued G.O. Ms. No. 111, Higher Education Department dated 24.3.1999. Consequent on the said revision, the scale of pay of the Lecturer (Senior Scale) was revised as follows:- S. No. Category Existing Scales of Pay Revised Scales of Pay 1 Lecturer 3000-100-3500-125-5000 10000-325-15200 17. With reference to the recruitment of teachers and the qualifications, the said G.O. ordered as follows:- "RECRUITMENT AND QUALIFICATIONS:- Direct recruitment to the posts of Lecturers in Government Colleges shall be on the basis of merit through All India Advertisement and Selection by the duly constituted Selection Committee to be set up under statutes. Explanation:- For the above purpose, the duly constituted State Teachers Recruitment Board will be the agency to undertake the selection of candidates through prescribed procedures and to prepare a panel of candidates. At the time of recruitment, other things being equal, preference will be given to candidates who possess adequate knowledge in Tamil. (i) The minimum qualification required for appointment to the posts of Lecturers will be those prescribed by the University Grants Commission from time to time. The educational qualification for the posts of Lecturers, Readers and Principals in colleges are given in Annexue – II." [Emphasis added] 18. However, taking advantage of the above order, even though the first portion mentioned in the Explanation about minimum qualification for appointment to the post of Lecturer was as prescribed by the UGC, the annexure II appended to the G.O. merely mentioned the minimum requirement for the post of Lecturer with a good academic record with 55% marks at the Master level and the possession of National Eligibility Test (NET). The Government framed Special Rules by G.O. Ms. No. 263 Law Department dated 20.12.2005. By the said G.O., the earlier Special Rule was amended and the post of Junior Professors was rechristened as Lecturer (Senior Scale) in tune with the UGC recommendations. Though the https://hcservices.ecourts.gov.in/hcservices/ Government Order in G.O. Ms. No. 111 Higher Education Department dated 24.3.1999 dealt with in annexure II the qualification for the post of Lecturer and not for the post of Lecturer (Senior Scale), the Government, in the present G.O. Ms. No. 263 Law Department dated 20.12.2003 prescribed the qualification for the post of Lecturer (Senior Scale), a Master's Degree in Law with not less than 55% of marks with good academic record. They thought that there is a distinction between the G.O. Ms. No. 1785 Education Department dated 05.12.1988 wherein the relevant subject at the Post-Graduate level was referred to and in G.O. Ms. No. 111, Higher education dated 20.12.2003, the word 'relevant subject' was not found. In these two orders of the Government, there is no reference to the UGC directives issued on 04.4.2000 prescribing qualification for the post of Lecturers to be recruited in Law Colleges. This attempt by the State Government will not only result in watering down the standard of legal education at higher level but also will be in direct conflict with the directives of the UGC. 19. Armed with this amendment to the Service Rules, the State Government notified the Teaches Recruitment Board [for short, 'TRB'] (third respondent herein), by a letter dated 18.8.2006 and directed them to take steps to recruit 16 posts of Lecturers (Senior Scale) in Government Colleges subject-wise. They were also directed to follow the communal roster issued by the State Government and also with reference to qualification to follow G.O. Ms. No. 263 Law Department dated 20.12.2005. In accordance with the requisition made by the State Government, the TRB notified the selection process in the newspapers by Advertisement No. 5/2006-07 dated 09.12.2006. The notification provided the estimated vacancies, which reads as follows:- Sl. No. Sub Code Subject GT G W BC G W MBC G W SC G W ST G W Total G W All 1 H01 LABOUR AND ADMINISTRATIVE LAW 1 1 1 1 2 2 H02 LAW OF CONTRACTS 1 1 1 1 1 3 2 5 3 H03 PROPERTY LAW 1 1 1 1 3 1 4 4 H04 CRIME AND TORTS 1 1 1 1 1 4 1 5 Total 3 2 3 1 2 1 3 1 11 5 16 Abbreviation GT: General Turn BC: Backward Class MBC: Most Backward Class SC: Scheduled Caste ST: Scheduled Tribe W: Women 20. After advertising for the posts on subject-wise and also granting them subject code and in the Annexure to the application, https://hcservices.ecourts.gov.in/hcservices/ the TRB also provided syllabus for the competitive examination for the recruitment of Lecturer (Senior Scale). In the application form, in column No. 1, the candidates were directed to fill up the subject code and also to indicate the subject for which the candidate had applied for. 21. Pursuant to the advertisement, 86 applications were received before the last date fixed by the TRB which was 29.12.2006. After scrutiny of applications, 31 persons were called for to write the written examination, which was held on 21.01.2007 (which was a Sunday) and the result for the written examination was published on Tuesday, ie., 23.01.2007. Out of the 31 candidates, who wrote the written examination, 22 candidates were called for the interviews, which were held from 13.02.2007 to 15.02.2007. While calling the candidates for the interview, the subjects under which the candidates had applied and wrote the written examination were not called for. In many cases, persons who got M.L. Degree in Constitutional Law were called for interview to the post of Lecturers in Labour Law and Administrative Law, Law of Contracts, Property Law and Crime and Torts. Finding that the petitioners were not called for the interview and also candidates who never applied for the particular post of Lecturer and who did not possess the P.G. Qualification in the relevant subject were called for the interview for such posts, the petitioners started moving this Court challenging the action of the TRB. 22. In W.P. No. 3401 of 2007, this Court granted an interim injunction for one week on 01.02.2007. Thereafter, after hearing both sides, by an order dated 12.02.2007, this Court passed the following order:- "Though this Court had given sufficient time for the respondents to file counter affidavit, the same has not been filed and the learned Special Govt. Pleader seeks 3 days time to file counter in all the writ petitions. As the selection process has already commenced, and actual interview is scheduled to be held tomorrow (i.e., 13.2.2007) keeping the interest of the petitioners and also the candidates, who are called for interview, in mind, it is directed that the interview shall go on. But, the respondents shall not either finalise the names candidates selected or issue appointment orders without specific orders from this court." 23. In view of the above interim order, though the selection process was completed, but no appointment orders have been issued https://hcservices.ecourts.gov.in/hcservices/ and in view of the urgency of the situation, the matters were directed to be posted for final disposal. 24. Before going into the main controversy with reference to the Service Rules and the consequent advertisement made being opposed to the UGC norms, two other issues were raised by the learned counsel for the petitioners and they will have to answered. 25. The petitioner in W.P. No. 4795 of 2007 (D.Purushothaman), having Ph.D. Qualification, contended that the prescription of passing the NET was unnecessary, should not be insisted upon. 26. In this context, it