IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 19.3.2010 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL W.P.No.18701 of 2003 Dr.K.Karunakaran Petitioner vs. 1. The Government of Tamilnadu, rep by its Secretary to Government, Higher Education Department, Fort St. George, Chennai 600 009. 2. The Secretary, University Grants Commission, Bahadur Shah Zafar Marg, New Delhi 110 002. 3. The Director of Collegiate Education, College Road, Nungambakkam, Chennai 600 006. 4. The Joint Director of Collegiate Education, No.18, Tiruchendur Road, Tirunelveli 627 002. 5. The Registrar, Manonmaniam Sundaranar University, Abisehapatti, Tirunelveli – 12. 6. The Secretary, M.D.T. Hindu College, Tirunelveli 627 010. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the first and third respondents especially the first respondent relating to his proceeding made in letter No.11227/E2/98- 13 dated 7.1.2002 (affixed signature on 8.1.2003) and quash the same as null and void, illegal and invalid and consequently directing the first respondent to approve the petitioner's appointment as Medical Officer cum Lecturer, appointed at the sixth respondent college in a sanctioned post pursuant to G.O.Ms.No.661 Education Department dated https://hcservices.ecourts.gov.in/hcservices/ 16.5.1990 with all service and monetary benefits with effect from 21.1.1991 viz., the date of joining service and ordering to disburse to the petitioner the salary arrears from 21.1.1991. For petitioner : Mr.A.Amalraj For RR1, 3 and 4: Mr.D.Srinivasan For R2 : Mr.Rajasekaran For R5 : M/s.Rao & Reddy For R6 : Mr.R.Jayapalan ORDER The petitioner is an MBBS Degree holder. He was appointed as Doctor-cum-Lecturer in Physical Education Department of the sixth respondent college. The appointment was made subject to the approval of the University and the Deputy Director of Collegiate Education. Only after due advertisement was made in 'The Hindu' daily, he was appointed as Doctor-cum-Lecturer in the said college. The Government of Tamil Nadu agreed to take over the course and bear all the recurring expenditure after five years. The second respondent University Grants Commission refused to approve the appointment of the petitioner on the ground that he did not fulfil the qualification for the post of Lecturer. The second respondent subsequently informed the sixth respondent college that the petitioner might be requested to contact the State Government as the second respondent had not prescribed qualification for the post of Doctor-cum-Lecturer. As the second respondent refused to approve the appointment of the petitioner, the first respondent also washed off its hands saying that his appointment could not be approved and consequently, no grant can be sanctioned by the Government. The aforesaid proceedings of the first respondent is under challenge before this court. 2. Respondents 1, 3 and 4 filed their counter admitting the position that the University Grants Commission originally undertook to meet out the recurring expenditure of the Physical Education, Health Education and Sports courses for five years. The first respondent undertook to take over the recurring expenditure as and when University Grants Commission's assistance came to an end. As the University Grants Commission, which controls all the Universities including the Manonmaniam Sundaranar University, has declared that the petitioner was unqualified to hold the post of Lecturer in Physical Education, Health Education and Sports, the qualification approval orders issued by Manonmaniam Sundaranar University became invalid. The Government of Tamil Nadu has also not admitted the petitioner as approved staff for the release of Government grant for the academic year 1995-1996. The first respondent need not necessarily accept the report submitted by the inspection commission. Inasmuch as the University Grants Commission has not accepted the qualification of the petitioner, no grant was released by the https://hcservices.ecourts.gov.in/hcservices/ University Grants Commission for the first five years and therefore, the first respondent also could not approve his appointment for the purpose of sanctioning grants to meet the recurring expenditure for the appointment of the petitioner. In view of the above, respondents 1, 3 and 4 pray for dismissal of the writ petition. 3. The fifth respondent Manonmaniam Sundaranar University filed counter stating that the petitioner failed to understand the difference between the post of Medical Officer and the post of Lecturer in Physical Education. As per the University Grants Commission norms, a person appointed to any Teaching Post should possess post graduate degree in the respective discipline. A medical person with a Post Graduate qualification in Physical Education with 55% of marks can be appointed as a Lecturer in a college. The decision of the University Grants Commission in respect of qualification is the last word as pointed out by the Supreme Court. The sixth respondent college had taken risk in employing the petitioner even after the end of academic year 1990-91 inspite of the fact that the University Grants Commission has, by its proceedings dated 23.11.1991, communicated its disapproval of the petitioner for the post of Lecturer in Physical Education and Anatomy. Therefore, the fifth respondent prayed for dismissal of the writ petition. 4. Learned counsel appearing for the petitioner would submit that the sixth respondent was pleased to advertise for the post of Doctor-cum-Lecturer and appointed the petitioner as Doctor-cum- Lecturer only after the Government approved the Physical Education Course in the sixth respondent college pursuant to the recommendations made by one man inspection commission appointed by Madurai Kamaraj University. It is his further submission that the first respondent also assured the sixth respondent college that they would incur the recurring expenditure after the lapse of five years, the moment the grant sanctioned by the University Grants Commission came to an end. It is his further submission that University Grants Commission has come out with three different reasons on various occasions to disapprove the appointment of the petitioner as Doctor- cum-Lecturer in the sixth respondent college. Drawing attention of this court to the qualification prescribed by the Madras University, the advertisement made by Alagappa University to fill up similar post in the University and the approval of such appointment order by the first respondent in Sarada College, Salem, the learned counsel appearing for the petitioner would submit that in the matter of approval of the petitioner, discrimination was practised by the first respondent. 5. Learned counsel appearing for respondents 1, 3 and 4 would submit that the first respondent had not prescribed any qualification for the post of Doctor-cum-Lecturer. The University Grants Commission had already expressed its disapproval of the appointment of the petitioner with such qualification to the post of Doctor-cum- https://hcservices.ecourts.gov.in/hcservices/ Lecturer. As the University Grants Commission has not approved the appointment on the ground that the petitioner had not fulfilled the required qualification, the first respondent cannot approve the appointment of the petitioner and release the grant as prayed for. 6. Learned counsel appearing for the Manonmaniam Sundaranar University would submit that the order of approval of the qualification of the petitioner was passed by the fifth respondent long prior to the qualification prescribed by the University Grants Commission. The University Grants Commission is the sole authority in fixing the qualification for the post of Lecturer in the college which comes under the purview of any of the Universities in the entire country. As the University Grants Commission has disapproved the qualification of the petitioner, the petitioner cannot harp on the order of approval of the qualification passed by the fifth respondent. At any rate, the petitioner cannot press for the approval of the appointment by the first respondent as he had not acquired the required qualification, he submits. 7. The proceedings of the Madurai Kamaraj University issued on 9.11.1988 to Dr.N.Krishnamoorthy, Principal, Sri Ramakrishna Mission Vidyalaya Maruthi College of Physical Education beforeever the formation of Manonmaniam Sundaranar University, Tirunelveli, would disclose that the said Dr.N.Krishnamoorthy was appointed as one man inspection commission to inspect and report on the arrangement made by the management of the sixth respondent college for further affiliation in B.Sc three years degree course in Physical Education, Health Education and Sports. It has also been made clear in the said correspondence that the University Grants Commission has accepted in principle the proposal of the college for the introduction of the said course. 8. Dr.N.Krishnamoorthy, having inspected the sixth respondent college, recommended that in the first year one of the Assistant Professors among the three may be a Medical Doctor who could be of help for teaching Anatomy and Physiology. The first respondent, thereafter, issued G.O.Ms.No.661 Education Department dated 16.5.1990 granting permission to the sixth respondent college for appointment of four Lecturers for the first year course of Physical Education, Health Education and Sports from the year 1990-91 onwards. The sixth respondent also was reminded of the fact that the University Grants Commission had already informed the first respondent that in case an institution was not able to start the course latest by the academic year 1990-91, the approval would be withdrawn. It has also been made clear that the Government, having approved the proposal of starting a course in Physical Education, Health Education and Sports in the sixth respondent college from the year 1990-91 onwards, undertook to bear the recurring expenditure after five years period when the patronage of University Grants Commission's assistance came to an end. https://hcservices.ecourts.gov.in/hcservices/ 9. Emboldened by such approval of the proposal to start the course in Physical Education, Health Education and Sports and the assurance given by the first respondent that it would bear the recurring expenditure of the course after the expiry of five years when the University Grants Commission's assistance came to an end, the sixth respondent gave advertisements in the leading newspapers including 'The Hindu' calling for the applications to fill up the post of a Lecturer who has got MBBS Degree for the purpose of teaching Physiology and Anatomy. 10. Having found that the petitioner Dr.K.Karunakaran possessed the required qualification, the sixth respondent appointed him as Lecturer for Physical Education, Health Education and Sports as per the order of appointment dated 4.1.1991. 11. By the time the said appointment was made by the sixth respondent, Manonmaniam Sundaranar University was formed at Tirunelveli. The sixth respondent wrote a letter to the Manonmaniam Sundaranar University seeking approval of the appointment of the petitioner. Manonmaniam Sundaranar University, by its communication dated 9.10.1991, approved the qualification of the petitioner for the post of Lecturer for Physical Education with effect form 21.1.1991. 12. Very strange submission is made now by Manonmaniam Sundaranar University that such an approval was accorded prior to the prescription of qualification made by the University Grants Commission. If at all the qualification possessed by the petitioner did not satisfy the prescription, if any, of the qualification made by the University Grants Commission, Manonmaniam Sundaranar University should not have approved the qualification of the petitioner and communicated the same to the sixth respondent. It appears that as a result of such approval, the petitioner, who possessed MBBS Degree, thought it fit to continue in the sixth respondent college with the fond hope that his appointment would be approved by the authority concerned. Had Manonmaniam Sundaranar University not approved the qualification of the petitioner, the petitioner, having such qualification in Medicine, would not have continued in the sixth respondent college. 13. The University Grants Commission, the second respondent herein issued a proceeding dated 23.11.1991 disapproving the appointment of the petitioner on the ground that the petitioner did not fulfil the qualification prescribed for the post of Lecturer. The very same second respondent again communicated to the sixth respondent, by its proceedings dated 9.5.1992, responding to its request for approval of appointment of the petitioner emanated from the sixth respondent, its inability to approve the appointment of the petitioner having the qualification of MBBS degree. It made a remark that such a candidate should have atleast possessed a post graduate degree with 55% marks for the post. A communication was sent by the https://hcservices.ecourts.gov.in/hcservices/ University Grants Commission to to a Member of Parliament, by its letter dated 19.1.1996, in reply to his letter dated 19.12.1995, informing him that Doctor-cum-Lecturer Post was not a recognized post of the University Grants Commission, that the qualification for such post had not been prescribed by the Commission and that therefore, the matter had to be dealt with by the Tamil Nadu Government. The petitioner also was requested to contact the State Government in that regard. 14. As rightly pointed out by the learned counsel appearing for the petitioner, the University Grants Commission has come out with three different reasons for expressing its disapproval of the appointment of the petitioner. At the first instance, it had informed the sixth respondent that the petitioner did not fulfil the qualification prescribed for the post of Doctor-cum-Lecturer. In the second communication, the second respondent informed the sixth respondent that the petitioner should have atleast acquired Post Graduate Degree in Medicine with 55% marks. In the last and third communication, the second respondent took a stand that no such qualification was prescribed for the post of Doctor-cum-Lecturer by the University Grants Commission. 15. The sixth respondent started the course in Physical Education only as per the Government Order issued by the first respondent. The first respondent, in fact, approved the proposal to start such a course in the sixth respondent college. An one man commission was appointed and the one man commission, having inspected the premises of the sixth respondent, recommended for commencing a Physical Education Course in the college of the sixth respondent. The one man commission had also strongly recommended for filling up one of the post of Lecturer in the said course by a Medical Doctor. The first respondent had virtually forced the sixth respondent to commence the course at the earliest point of time latest by the academic year 1990-91 informing the sixth respondent that the approval for such a course would be withdrawn by University Grants Commission if such a course was not commenced by then. The Government also undertook to incur the recurring expenditure after the lapse of five years as and when the University Grants Commission's assistance came to an end. Only after getting such assurance from the Government, it appears that the sixth respondent started the Physical Education Course and appointed the petitioner as Lecturer in its Physical Education Course. Now, the University Grants Commission comes out with a plea that no prescription of qualification was made for the post of Doctor-cum-Lecturer in the Physical Education course. 16. The petitioner has produced a copy of the advertisement flashed in 'The Hindu' daily dated 23.2.2000 calling for the post of Lecturer-cum-Medical Officer to man the Department of Physical Education at Alagappa University. But, of course, there is no material to show that such a Lecturer, as called for in the said https://hcservices.ecourts.gov.in/hcservices/ advertisement, was appointed by Alagappa University. The sixth respondent corresponded with Sri Sarada College of Education for Women, which had informed the sixth respondent that with an approval of the Director of Collegiate Education, a Medical Officer cum Assistant Professor was appointed in their college and necessary grant was also being given by the Government. 17. It is brought to the notice of this court that University of Madras has also prescribed MBBS Degree qualification for the post of Medical Officer-cum-Lecturer for the Physical Education Course that is conducted by it. 18. The above facts and circumstances would go to show that there are Medical Officer-cum-Lecturer serving in various Universities in the state of Tamil Nadu. Therefore, it is not as if such a post is not at all sanctioned by Authorities concerned. 19. Here is a case where the unfortunate petitioner, who possesses MBBS Degree qualification joined with all smartness in the year 1991 itself in the sixth respondent college on the fond hope that his appointment would be approved by the authority concerned. The appointment made by the sixth respondent cannot also be found fault with as the said appointment was made only after G.O.Ms.No.661 Education Department dated 16.5.1990 was issued by the Government directing specifically the sixth respondent to commence the course in Physical Education in the academic year 1990-91 itself. The sixth respondent also was tempted by the first respondent saying that the recurring expenditure on the said course will be taken over by the first respondent when the University Grants Commission's assistance came to an end. The University Grants Commission has taken a nebulous stand as far as the qualification possessed by the petitioner to occupy the position of the Doctor-cum-Lecturer. 20. At any rate, it is found that the University Grants Commission had not prescribed the qualification for the post of Doctor-cum-Lecturer at the time when a course was started by the sixth respondent. Inasmuch as the said course was started by the sixth respondent only with an assurance of the first respondent that the recurring expenditure would be borne by the Government as and when the University Grants Commission's assistance came to an end, the first respondent has to step in to shoulder the responsibility of bearing the recurring expenditure for the course started by the sixth respondent with the appointment of the petitioner as Doctor-cum- Lecturer atleast after the lapse of five years from the date when the petitioner was appointed in the sixth respondent college in that position. 21. The learned counsel appearing for the petitioner would bring to the notice of this court that the services of the petitioner was availed by Manonmaniam Sundaranar University for valuation of the https://hcservices.ecourts.gov.in/hcservices/ examination papers in Physical Education Course. But, unfortunately, the fifth respondent comes out with a plea that the petitioner is unfit to hold the position as he has not fulfilled the qualification prescribed by the University Grants Commission. 22. There is no justification for the first respondent to wash off its hands having given all assurances to the sixth respondent to start a course and appoint Lecturer to man the respective posts in the said course. The petitioner, being a well qualified Doctor, would have earned a sizable income had he set up his private practice. Non-approval of the appointment of the petitioner in the above circumstances would definitely result in injustice. 23. At this stage, the learned counsel appearing for the petitioner would submit that the petitioner is even prepared to forego the approval of his post and sanction of grant by the University Grants Commission for the first five years commencing from 4.1.1991 to 3.1.1996. Under such circumstances, necessary direction will have to be issued to the first respondent to approve the appointment of the petitioner as Doctor-cum-Lecturer or Medical Officer-cum-Lecturer as the case may be from 4.1.1996 and release necessary grant to bear the recurring expenditure from the said date. 24. Therefore, the impugned proceedings in letter No.11227/E2/98-13 dated 7.1.2002 issued by the first respondent is quashed as it smacks of illegality and consequently, the first respondent is directed to approve the petitioner's appointment as Medical Officer-cum-Lecturer of the sixth respondent college in a sanctioned post pursuant to G.O.Ms.No.661 Education Department dated 16.5.1990 with all service and monetary benefits with effect from 4.1.1996 without causing disturbance to the seniority of the petitioner in the sixth respondent college from 4.1.1991 within a period of three months from the date of receipt of this order. The salary arrears with effect from 4.1.1996 shall be disbursed to the petitioner within a period of three months from the date of receipt of this order. Accordingly, the writ petition is allowed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssk. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government, Government of Tamilnadu, Higher Education Department, Fort St. George, Chennai 600 009. 2. The Secretary, University Grants Commission, Bahadur Shah Zafar Marg, New Delhi 110 002. 3. The Director of Collegiate Education, College Road, Nungambakkam, Chennai 600 006. 4. The Joint Director of Collegiate Education, No.18, Tiruchendur Road, Tirunelveli 627 002. 5. The Registrar, Manonmaniam Sundaranar University, Abisehapatti, Tirunelveli – 12. 6. The Secretary, M.D.T. Hindu College, Tirunelveli 627 010. 1 cc To Mr.Row & Reddy, Advocate, SR.18513 1 cc To The Government Pleader, SR.18553 W.P.No.18701 of 2003 trm(co) pmk.19.4.2010. https://hcservices.ecourts.gov.in/hcservices/