IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.543 of 2011 and M.P.Nos.1 and 2 of 2011 S.Periandy ...Petitioner Vs. 1.The Union Territory of Puducherry, rep by its Secretary, Department of Education, Puducherry. 2.Pondicherry Society for Higher Education, PIPMATE Complex, Lawspet, Puducherry-605 008. 3.Dr.Cheryl-Ann Gerardine Shivan, Principal, Rajiv Gandhi Arts and Science College, Thavalakuppam, Puducherry. ...Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent in No.446/PONSHE/Estt./E2/2009-10 dated 23.11.2010 wherein the third respondent was appointed for the post of Principal in Rajiv Gandhi Arts and Science College, Thavalakuppam, Puducherry and quash the same and consequently, to direct the second respondent herein to appoint the petitioner, who is fully qualified as per 2010 UGC Regulations herein for the said post. For Petitioner : Mr.T.Murugesan, SC for Mr.D.Ravichander For Respondents : Mr.R.Syed Mustafa, Spl.G.P.(Pondy) for R-1 Mr.T.P.Manoharan for R-2 M/s.Vincent and Vincent for R-3 O R D E R The petitioner has filed the present writ petition, challenging the appointment made in favour of the third respondent dated 23.11.2010 as the Principal of Rajiv Gandhi Arts and Science https://hcservices.ecourts.gov.in/hcservices/ College, Puducherry and for a consequential direction to the second respondent to appoint the petitioner, as according to him was fully qualified to hold the post in terms of the UGC Regulations 2010. 2. When the matter came up on 11.01.2011, private notice was directed to be served on the respondents. On notice, the second respondent has filed a counter affidavit dated 28.03.2011 and the third respondent has filed a counter affidavit dated 18.03.2011. 3. Heard the arguments of Mr.T.Murugesan, learned Senior Counsel appearing for Mr.D.Ravichander, counsel for the petitioner, Mr.R.Syed Mustafa, learned Special Government Pleader (Puducherry) for R1, Mr.T.P.Manoharan, learned counsel for the second respondent and Mr.Vincent for M/s.Vincent and Vincent, learned counsel for the third respondent. 4. By the impugned order,the third respondent was appointed as the Principal of Rajiv Gandhi Arts and Science College, Puducherry on the recommendation of the Recruitment Committee and with the approval of the Chairman of the Governing Body of Pondicherry Society for Higher Education, Puduchery. The petitioner was also an aspirant for the said post. When he was not selected, he has filed the present writ petition. 5. It is the case of the petitioner that he was working as the Assistant Professor in Physics at Tagore Arts College, Puducherry. He had done M.Sc Physics in Electronics in the Madras University, M.Phil in Solid State Physics. Thereafter, he got Post Graduate Diploma in Computer Applications in Alagappa University and finally, he got Ph.D in Molecular Spectroscopy from Pondicherry University in the year 1999. He also claimed that he has 22 years of teaching experience at College level and 11 years of Research experience after his Ph.D degree. He had published 30 papers in various National and International Journals and he had produced 20 M.Phil students and he has so far guided 10 Ph.D students. 6. It was further stated that the second respondent by its notification invited applications for the post of Principal for one of its constituent college at Puducherry. The said notification was published in the Tamil Daily "Dinamalar" on 24.01.2010 and in English Daily "The Hindu" on 23.01.2010. The said notification stipulated that the qualification and experience shall be governed by University Grants Commission norms. It was also stated that the details of information and application form can be located in the website attached to the second respondent and the last date for submission of the application was fixed as 26.02.2010. 7. According to the petitioner, the draft for the UGC Regulations 2010 were published in the year 2009 itself. The qualification prescribed for the post of Principal as per the Regulation is as follows:- i) A Master’s Degree with 55% marks https://hcservices.ecourts.gov.in/hcservices/ ii)A Ph.D degree in the concerned/allied/ relevant discipline in the institution concerned with evidence of published work and research guidance iii)The candidate must be an Associate Professor/ Professor with a total experience of 15 years of teaching/ research/ administration in Universities, Colleges and other institution of higher Education. iv)A minimum score in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS). Therefore, the petitioner contended that the said direction issued by the UGC Regulation 2010 should have been followed by the second respondent. 8. The petitioner had applied for the said post. He was directed to appear for the Certificate verification on 26.10.2010. Accordingly, he appeared on 10.11.2010 and produced all the certificates. He was also permitted to attend the viva-voce on the same day. However, the third respondent had not fulfilled the eligibility criteria for selection to the post of Principal as per the UGC Regulations 2010 and he did not have the Ph.D degree as on the last date for application to the said post on 26.02.2010. He had also not fulfilled the criteria provided. But the third respondent was selected by the Committee. While the petitioner was placed in the waiting list in the first position, the third respondent was appointed as the Principal. 9. The only contention raised by the petitioner was that the third respondent was not having necessary qualification in terms of UGC Regulations 2010. 10. In response to these allegations, in the counter affidavit filed by the second respondent, it was stated that the second respondent had notified vacancy to the Post of Principal on account of the retirement of the the previous principal on 31.08.2009. The second respondent initiated action to fill up the said vacancy and approved the same on 08.01.2010. On that date, UGC Regulations 2000 was adopted as it was the only Regulation which was in force. As per the said Regulations, the qualification prescribed for the post of Principal was a Master's Degree with 55% marks, Ph.D or equivalent published work and total experience of 10 years of teaching/research in Universities, Colleges and other institutions of higher education. Therefore, when an advertisement was made in the newspapers and reference was made to the UGC Regulations, only UGC Regulation 2000 was in force at that time. These details which were furnished were accepted by all the candidates who have applied for the said post including the petitioner. An Interview was conducted by a Selection Committee comprising of high ranking academicians. The third respondent came out successful in the interview and his name was recommended for selection. It was accepted by the second respondent vide office memorandum dated 23.11.2010. Hence, the third respondent was https://hcservices.ecourts.gov.in/hcservices/ appointed as the Principal of Indira Gandhi Arts and Science College, Kadhirkamam. 11. In the counter affidavit filed by the third respondent, he claimed that he had completed B.A. in English in First class under the Pondichery University, He had also completed M.A.in English and Comparitive Literature in 1991. He also got qualified in the National Level Entrance Test (NET) to qualify for a Lectureship. He also complted his M.Phil in first class in May 1992. Thereafter, he was working as guest Lecturer in Tagore Arts College till March 1995 and subsequently, as a permanent full time lecturer for four years in a private college till 25.11.2010. He also successfully completed Bachelor of Education (B.Ed) in first class in 1996. He completed his Doctor of Philosophy (Ph.D) in November 2009 in the Pondicherry University. At the time of applying for the post, he was a Selection Grade Lecturer which was equivalent to that of an Associate Professor. He contended that he was fully qualified to hold the post of Principal since he had successfully completed Ph.D Degree in November 2009. A provisional certificate for having obtained Ph.D was also enclosed along with his application. After his selection, his selection was also notified to the Pondichery University, which had accepted his appointment. He had joined the post of Principal of the Rajiv Gandhi Arts and Science College with effect from 26.11.2010. 12. Mr.T.Murugesan, learned Senior Counsel took pains to explain that at the relevant time, the third respondent was not having Ph.D degree as per the UGC Regulations. Under Regulation 15, the University has to consider the reports and to decide whether the candidate is worthy of the degree of Doctor of Philosophy and take action in accordance with such a decision. It is thereafter, the candidates, who qualify themselves for the Ph.D. Degree will be awarded their Degrees. 13. But this fact overlooked Regulation 14(g) which reads as follows:- "14(g) After conducting the viva-voce examination, the Guide/Convener shall convey to the Controller of Examinations of the University, through the HOD/Dean,t he result of such examination endorsed by the external examiner. A candidate who is successful in the public viva voce examination shall be declared to have qualified for the Ph.D.Degree." 14. The learned Senior Counsel also produced various proceedings of different Universities like the Central Universities of Pondicherry, Orissa, Kashmir, Himachal Pradesh and Bihar to show that those Universities have adopted the UGC Regulations 2010 for the recruitments made. Therefore, it would not not be open to the second respondent to rely upon UGC Regulations 2000 which was not in force at the time when the appointment came to be made. https://hcservices.ecourts.gov.in/hcservices/ 15. In view of the above, two questions arises for consideration. a) Whether the third respondent is qualified to apply for the post and whether he had a Ph.D Degree at the time of making application and (b) The recruitment for which a notification was issued, on 24.01.2010 in respect of a vacancy which arose in the year 2009, whether the UGC Regulations 2010 will apply? 16. In the present case, the third respondent was in possession of a Provisional certificate for the Doctor of Philosophy vide certificate dated 27.11.2009 which was was issued as per the date of his viva voce namely 12.11.2009. Therefore, when the advertisement was made on 24.01.2010, the third respondent was very much in possession of his Ph.D Degree and the fact that no convocation was held is immaterial to consider the question whether the third respondent is a Ph.D holder or not. Therefore, the first objection must fail. 17. With reference to the application of UGC Regulations 2010, it must be noted that the vacancy which arose in the year 2009 was approved by the second respondent and an advertisement was made in January 2010. At the time when the advertisement was made, the UGC Regulations 2010 have not come into force. The said regulations as per legal requirement were published in Gazette of India on 18.09.2010. Therefore, merely because formal appointments were made on 23.11.2010 does not mean that a candidate should possess the new Regulations 2010 which came into force subsequent to the advertisement. 18. In this context, the learned counsel for the third respondent placed had reliance upon the judgment of the Supreme Court in A.A. Calton v. The Director of Education and another reported in (1983) 3 SCC 33. The following passage found in Paragraph 5 may be usefully referred to: "5. It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under Section 16-F(4) of the Act in the case of minority institutions. The amending Act did not. however, provide expressly that the amendment in question would apply to pending proceedings under Section 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under Section 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under Section 16-F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural https://hcservices.ecourts.gov.in/hcservices/ provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case." 19. Subsequently, the learned counsel for the third respondent also placed reliance upon the judgment of the Supreme Court in P. Mahendran v. State of Karnataka reported in (1990) 1 SCC 411 for contending that any amendment to the Rules cannot have retrospective effect and selection of candidates already made will not be affected. While in the present case, the advertisement was made on 24.01.2010. There is nothing on record to show that UGC Regulations 2010 which was notified in the gazette on 18.09.2010 was made with retrospective effect. Reliance was placed upon paragraph 7 of the judgment, which is as follows:- 7. In view of the above the appellants’ selection and appointment could not be held as illegal as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection. The amended Rule could not be applied to invalidate the selection made by the Commission. Strangely the Tribunal did not follow the latest authority of this Court as laid down in Calton case1, on the ground https://hcservices.ecourts.gov.in/hcservices/ that the view taken in that case was contrary to the Constitution Bench decision of this Court in State of Andhra Pradesh v. T. Ramakrishna Rao. We have carefully considered the decision but we do not find anything therein contrary to the view taken in Calton case." 20. The very same judgment came to be quoted with approval by a subsequent judgment of the Supreme Court in Gopal Krushna Rath v. M.A.A. Baig reported in (1999) 1 SCC 544. In paragraph 5 to 7, the Supreme Court observed as follows:- "5. It is an accepted position that on the date of the advertisement and on the last date prescribed for the receipt of applications, the qualification prescribed by the University Grants Commission was 10 years’ experience of teaching and/or research. Therefore, the advertisement also prescribed the same qualification. The appellant possessed that qualification. Even on the date when the Syndicate prepared an assessment chart, the position was the same. It was only thereafter, on 19-9-1991, that the new qualification regarding ten years’ teaching experience at the postgraduate level came into effect. 6. When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirements regarding qualifications by the University Grants Commission will not affect the process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran v. State of Karnataka this Court has observed: (SCC p.416, para 5) “5.It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect.” The Court further observed that: “Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment.” https://hcservices.ecourts.gov.in/hcservices/ 7. In the present case, therefore, the appellant possessed the necessary qualifications as advertised on the last date of receiving applications. These qualifications were in accordance with the Rules/guidelines then in force. There is also no doubt that the appellant obtained higher marks than the original Respondent 1 at the selection. There is no challenge to the process of selection, nor is there any allegation of mala fides in the process of selection. Therefore, the subsequent issuance of UGC Regulations 2010 with effect from 18.09.2010 will not affect the earlier selection process initiated by the second respondent. 21. In the present case, the petitioner, pursuant to the newspaper advertisement which had referred to the UGC Regulations 2000 alone, he had applied for the post. He had also gone for interview and was kept in the waiting list. He only wanted to non- suit the third respondent on the ground of lack of qualification namely not having a Ph.D degree. He cannot now turn around and attack the selection process completed by the second respondent. He is estopped from doing so especially, when he had participated in the selection process. 22. In this Context, Mr.T.P.Manoharan, learned counsel for the second respondent placed reliance upon the judgment of the Supreme Court in Amlan Jyoti Borooah v. State of Assam and others reported in (2009) 3 SCC 227 for the purpose of contending that the selection process should be conducted only as per the advertisement and not on the basis of any subsequent development. 23. In the light of the above factual matrix and the legal precedents, this Court is not inclined to entertain the writ petition. Hence the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Union Territory of Puducherry, rep by its Secretary, Department of Education, Puducherry. https://hcservices.ecourts.gov.in/hcservices/ 2.The Pondicherry Society for Higher Education, PIPMATE Complex, Lawspet, Puducherry-605 008. +1 CC to M/s.Vincent and Vincent, Advocate, S.R.No.29270 +1 CC to M/s.D.Ravichander, Advocate, S.R.No.29328 +1 CC to Mr.T.P.Manoharan, Advocate, S.R.No.29866 W.P.No.543 of 2011 SK(CO) SRA(10/6/2011) https://hcservices.ecourts.gov.in/hcservices/