IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04-02-2008 C O R A M The Honourable Mr. JUSTICE P.K. MISRA and The Honourable Mr. JUSTICE K.K. SASIDHARAN Writ Appeal Nos.1221 of 2005 and 82 of 2006 and Writ Petition No.36307 of 2004 W.A.No.1221 of 2005 N. Ramesh .. Appellant Vs. 1. Sibi Madan Gabriel 2. The Secretary to Government, Information and Tourism Department, Govt. of Tamil Nadu, Secretariat, Chennai-9. 3. The Director, Information and Public Relations, Secretariat, Chennai-9. 4. The Tamil Nadu Public Service Commission, rep. by its Secretary, Chennai-2. .. Respondents W.A.No.82 of 2006 1. The Secretary, Information and Tourism Department, Govt. of Tamil Nadu, Secretariat, Chennai-9. 2. The Director, Information and Public Relations, Secretariat, Chennai-9. .. Appellants Vs. https://hcservices.ecourts.gov.in/hcservices/ 1. Sibi Madan Gabriel 2. The Tamil Nadu Public Service Commission, rep. by its Secretary, Chennai-2. 3. N. Ramesh .. Respondents W.P.No.36307 of 2004 Sibi Madan Gabriel .. Petitioner Vs 1. The Secretary to Government, Information and Tourism Department, Govt. of Tamil Nadu, Secretariat, Chennai-9. 2. The Director, Information and Public Relations, Secretariat, Chennai-9. 3. The Tamil Nadu Public Service Commission, rep. by its Secretary, Chennai-2. 4. N. Ramesh 5. The University Grants Commission, rep. by its Secretry, Bagadur Shah Zafar Marg, New Delhi 110 002. 6. The Registrar, Annamalai University, Chidambaram, Annamalai Nagar 608 002. .. Respondents (R5 and R6 impleaded as per order dated in WPMP.NO.1940/07 in W.P.36307/2004) Prayer : Writ Appeals filed under Clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 21.6.2005 made in W.V.M.P. No.2428 of 2004 in W.P.M.P. No.43649 of 2004 in W.P. No.36307 of 2004. Writ Petition filed under Article 226 of the Constitution of India for a certiorarified mandamus calling for the records on the file of the 1st respondent in G.O.(D) No.392, Information and https://hcservices.ecourts.gov.in/hcservices/ Tourism (AD1) Department dated 6.12.2004, quash the same and direct respondents 1 and 2 to consider the petitioner for promotion to the post of Principal, Film and Television Institutes of Tamil Nadu. For Appellants : Mr. S.M. Subramaniam in W.A.No.1221/05 R-3 in WA.No.82/06 & R-4 in WP.No.36307/04 For Appellants in W.A.No.82/2006 : Mr.L.S.M. Hasan Fizal R-2&3 in WA.No.1221/05 & Govt. Advocate R-1&2 in WP.No.36307/04 For Respondent-1 Mr. R. Thiagarajan, in the W.As. and : Senior Counsel Petitioner in W.P. for Mr.Muthappan For Respondent-3 in WP.36307/04 : Mr.A. Arul (for TNPSC) For Respondent-5 Mr. Muthukumarasamy in W.P.No.36307/04 : Senior Counsel for Mr.P.R. Gopinathan (UGC) For Respondent-6 Mr. Jenasenan in W.P.No.36307/04 : (for Annamalai University) COMMON JUDGMENT P.K. MISRA, J The dispute relates to the question of appointment to the post of Principal in Film and Television Institute of Tamil Nadu, hereinafter referred to as "the Institute" in brief. 2. The two combatants in the on going legal battle are Mr. Sibi Madan Gabriel, petitioner in the Writ Petition No.36307 of 2004 and Mr.N. Ramesh, the Respondent No.4 in such writ petition. The post of the Principal in such Institute, which was lying vacant for a considerable length of time, was filled up by the appointment of fourth respondent as per order dated 6.12.2004. Such appointment is being challenged in the writ petition. For convenience, the parties are described in the manner they have been arrayed in W.P.No.36307 of 2004. https://hcservices.ecourts.gov.in/hcservices/ 3. The factual background is as follows :- The petitioner was appointed temporarily as Lecturer in Acting in the Institute by order dated 26.5.1982 and his service was regularised retrospectively with effect from the date of joining as per order dated 20.2.1992. The petitioner was subsequently promoted as Head of Section by G.O.Ms.No.236 dated 17.8.1993. During the year 2000, the fourth respondent was placed in additional charge to the post of the Principal. At that stage, the petitioner filed O.A.No.5275 of 2000 before the Tamil Nadu Administrative Tribunal (in short "Tribunal"). The Tribunal by its order dated 14.8.2000, directed the Government to consider the objections with reference to the qualification of the fourth respondent. At that stage, the Government appointed one Mr.K. Loganathan, which came to be challenged by the present fourth respondent by filing O.A.No.2085 of 2003 before the Tribunal, which was dismissed by the Tribunal by order dated 5.1.2004. Such order of the Tribunal was challenged by the fourth respondent by filing W.P.No.841 of 2004 which, though still pending, has become infructuous for all practical purposes, as after retirement of the said Mr.K. Loganathan, fourth respondent has been appointed as the Principal by impugned order dated 6.12.2004. During pendency of the present W.P.No.36307 of 2004, the petitioner filed W.M.P.No.43649 of 2004 for stay, wherein an order of interim stay was granted. Thereafter, fourth respondent filed W.V.M.P.No.2428 of 2004 for vacating the stay which was rejected by the learned single Judge by order dated 21.6.2005. Writ Appeal No.1221 of 2005 was filed by the present fourth respondent and W.A.No.82 of 2006 was filed by the State Government and the Director of Information and Public Relations against such order refusing to vacate the order of stay. While hearing the aforesaid two writ appeals against such interim order relating to stay, the Division Bench also heard the main Writ Petition, namely, W.P.No.36307 of 2004 and while allowing the two writ appeals preferred against the order relating to stay, dismissed the writ petition vide judgment dated 14.2.2006. Such decision of the Division Bench was challenged by the petitioner in the Supreme Court by filing Civil Appeal No.3178 of 2007 (Arising out of SLP(C) No.7783 of 2006). The said Appeal was disposed by order dated 20.7.2007 by remanding the matter to the High Court for fresh disposal. The Supreme Court observed that the University Grants Commission as well as Annamalai University should be impleaded as parties. Thereafter, the University Grants Commission and Annamalai University have been impleaded as Respondent Nos.5 & 6 respectively as per order dated 1.10.2007. 4. The main contention raised by the petitioner is to the effect that the fourth respondent, who obtained his M.A. Degree from Annamalai University by simply appearing at such examination https://hcservices.ecourts.gov.in/hcservices/ without any preceding formal degree is not eligible to be appointed as the Principal as such M.A. Degree cannot be considered as a valid degree. 5. It is not in dispute that Rules under Article 309 of the Constitution of India have been framed. The following qualifications are prescribed in Rule 4:- Method of Recruitment Qualification Promotion i) a degree in Science or Arts of any recognized University, ii) A diploma in any branch of Film Technology awarded by any recognized Institution in India, and iii) Service as Head of Section in any branch of Film Technology in the Government Institute of Film Technology, Madras for not less than five years. Recruitment by Transfer i) A degree in Science or Arts of any or Direct Recruitment recognized University, ii) A diploma in any branch of Film Technology awarded by any recognized Institute in India, and iii) Experience for a period of not less than ten years in Film Technology, of which at least five years shall be in teaching in a Film Institute. 5.1 There is no dispute that fourth respondent has a Diploma in the required branch of Film Technology and he has also served as head of Section for not less than five years. The only dispute is whether the fourth respondent, who has obtained M.A. Degree in Open University system by appearing at such examination held by Annamalai University, can be said to be possessing a degree as contemplated. 6. In the counter affidavit filed by the Respondent Nos.1 and 2, namely, the State Government and the Director of Information and Public Relations Department, it has been stated that as per G.O.Ms.No.216 Personnel and Administrative Reforms Department, dated 26.8.1997, orders have been issued recognising that the degree obtained in Open University is equal to the degree obtained in regular stream for the purpose of employment in Government Department. https://hcservices.ecourts.gov.in/hcservices/ 7. In the counter affidavit filed by the fourth respondent, reliance has also been placed on G.O.Ms.No.216 dated 26.8.1997 and it is claimed that Master's degree obtained from Open University system is valid and, therefore, the fourth respondent was eligible to be considered. Reference has been made in such counter to Letter No.F-1-188 T.13 dated 25.11.1988 issued by the Ministry of Human Resource Development (Department of Education). Similarly reference has been made to Letter dated 28.7.1993 written by the Additional Secretary of the Union Public Service Commission stating that Open Universities have been established by the Act of Parliament or State Legislature in accordance with the provisions contained in Section 2(f) of the University Grants Commission Act, 1956, hereinafter referred to as "the UGC Act" and such Universities are empowered to award degrees in terms of Section 22 (1) of the UGC Act, 1956. 7.1 While reflecting upon the stand of UGC before the Hon'ble Supreme Court of India, the fourth respondent has inter alia stated that UGC has the authority to grant exemption. It is further stated that from the correspondence made by UGC it is apparent that conferment of Master's degree on the basis of one sitting examination was valid prior to 1998. It is also indicated that in the State of Tamil Nadu, all the established Universities were conducting the "M.A., M.Com., M.Sc.," Open University System, and the Government of Tamil Nadu issued various orders recognising such degrees for the purpose of public appointments. It is also asserted that the Open University degrees are accepted for the purpose of appearing in Group-I examination by the Union Public Service Commission and for Civil Service examination. 8. The University Grants Commission, in short UGC, impleaded as fifth respondent pursuant to the directions of the Honourable Supreme Court, has stated in its counter affidavit that UGC in exercise of power conferred under Section 26 and more particularly 26(1)(f) of the UGC Act, 1956 has framed the UGC (the minimum standards of instructions for the grant of first degree through non-formal/distance education in the faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences) Regulations, 1985, hereinafter referred to as "UGC Regulations" in short. It is further stated that in view of the first proviso to Regulation 2 (2), unless and until a candidate successfully completes the "first degree course" of three years duration, he cannot be eligible for admission to the Master's course and such Master's degree cannot be termed as a valid degree for any purpose including employment. In the counter, reference has been made to various correspondence by extracting from such correspondence to indicate that at no point of time conferment of Master's degree by directly appearing at such examination without https://hcservices.ecourts.gov.in/hcservices/ the benefit of a basic degree or the first degree has ever been countenanced by the UGC. 9. In the counter affidavit filed by the Annamalai University, impleaded as Respondent No.6, it has been stated that the University established a separate Directorate for the Distance Education Programme in 1979. Subsequently, the University started offering courses of study under the Open University System in 1991, which was in line with the Indira Gandhi National Open University (IGNOU), as per which "anyone who had completed the +2 or any one who has undergone the preparatory course and passed the written test is eligible to join the undergraduate programme of his/her choice." It is further stated that "Similarly those who have undergone the preparatory course and written test and are 21 years and above are eligible to appear for the P.G. courses." It is further asserted that the University "have been furnishing information to the UGC regarding the instructions/courses offered by the University through the Non- Formal/Distance Education including the OUS every year." and that "the Central Government had responded to the University stating that the degrees/diplomas awarded by the Respondent University would stand automatically recognized for the purpose of employment under the Central Government." It is further stated that at no point of time, the Central Government or the UGC had intimated the Annamalai University that M.A. Degree offered by Annamalai University through Open University System was contrary to the Regulations of the UGC and only in March, 2004, the Chairman, UGC emphasised the need to discontinue the Masters degree programme offered without requiring three year graduate degree qualification and thereafter such system has been discontinued with effect from July, 2004. On the basis of these averments, the main contention of the learned counsel for the Annamalai University is to the effect that there has been implied relaxation of the procedure hitherto followed by Annamalai University relating to grant of Master's degree. 10. The main contention of the petitioner is to the effect that since fourth respondent had not obtained any first degree i.e., graduate degree, he was not eligible to obtain a Master's degree in view of the provisions contained in UGC Regulations, 1985. The above stand of the petitioner is supported by the UGC. The contesting fourth respondent, however, contends that in view of the various exemptions and correspondence, it must be taken that Master's degree obtained by fourth respondent through Open University System is valid. https://hcservices.ecourts.gov.in/hcservices/ Annamalai University supports such stand to a great extent. It is contended on behalf of Annamalai University that whatever may be the position regarding the Regulations, it must be taken that the UGC had exempted Annamalai University and so long as such system of appearing directly in M.A. examination was in vogue, such degree must be considered to be valid as has been done by the State of Tamil Nadu. It has been contended by both the fourth respondent as well as sixth respondent that in fact many such persons who had obtained their Masters' degree by appearing in the Open University without appearing at the graduation degree have been found to be eligible for employment in Government service as well as in many public sector undertakings. The UGC having not raised any objection earlier and such practice, which was continuing till 2004, must be considered to be in accordance with the implied exemption granted by the UGC, is the specific contention of the Annamalai University. 11 From these averments and counter averments and the contentions of the counsels appearing for different parties, the moot questions which arise for determination are as follows :- (1) Whether conferment of Master's degree by Annamalai University by allowing the persons to appear at M.A. examination even though such persons do not have the "basic degree" of graduation or the "first degree", is in accordance with the Regulations of the University Grants Commission ? (2) Whether it can be said that there has been implied relaxation of such Master's degree by the University Grants Commission ? (3) Whether a person holding such Master's degree by passing examination held by Annamalai University without the benefit of the basic degree or the first degree can be said to be eligible and qualified as per the requirement of the Rules applicable to the Institute for the post of Principal? 12. Before embarking upon the difficult journey of deciding the aforesaid aspects, we must make it clear that there is no dispute that the "Graduate Degree" is universally considered as the First Degree and the validity or otherwise of the first degree offered by the Open Universities including Annamalai University for conferring a degree of graduation is not in dispute. Similarly, there is also no dispute that after obtaining a first degree either through conventional system or the Open University System, a student can pursue Master's degree through Open University System. Though from correspondence there is some dispute relating to completion of "bridge course" of one year for those students who obtained graduation after two years course, such question is not at all relevant for the present purpose. The only dispute is relating https://hcservices.ecourts.gov.in/hcservices/ to status of the Master's degree offered by Annamalai University through the system of M.A. examination in respect of candidates who do not have any preceding basic degree. 13. The University Grants Commission Act, 1956 (Act 3 of 1956), is an Act to make provision for co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission. The Apex Court in the decision reported in 2005(5) SCC 420 (Prof. Yashpal v. State of Chhattisgarh) considered the objects and reasons for enacting the University Grants Commission Act 1956 and the various functions of the commission in maintaining the standards in universities, the effect of a degree conferred by university and held thus: "38. A degree conferred by a university is a proof of the fact that a person has studied a course of a particular higher level and has successfully passed the examination certifying his proficiency in the said subject of study to such level. In the case of a doctorate degree, it certifies that the holder of the degree has attained a high level of knowledge and study in the subject concerned by doing some original research work. A university degree confers a kind of status upon a person like a graduate or a postgraduate. Those who have done research work and have obtained a PhD, DLitt or DSc degree become entitled to write the word "Doctor" before their names and command certain amount of respect in society as educated and knowledgeable persons. That apart, the principal advantage of holding a university degree is in the matter of employment, where a minimum qualification like a graduate, postgraduate or a professional degree from a recognised institute is prescribed. Even for those who do not want to take up a job and want to remain in a private profession like a doctor or lawyer, registration with the Medical Council or the Bar Council is necessary for which purpose a degree in medicine or law, as the case may be, from an institution recognised by the said bodies is essential. An academic degree is, therefore, of great significance and value for the holder thereof and goes a long way in shaping his future. The interest of society also requires that the holder of an academic degree must possess the requisite proficiency and expertise in the subject which the degree certifies. 39. Mere conferment of degree is not enough. What is necessary is that the degree should be recognised. It is for this purpose that the right to confer degree has been given under Section 22 of the UGC Act only to a university established or incorporated by or under a https://hcservices.ecourts.gov.in/hcservices/ Central Act, Provincial Act or State Act or an institution deemed to be a university under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees. Sub-section (3) of this section provides that "degree" means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette. The value and importance of such degrees which are recognised by the Government was pointed out by a Constitution Bench in S.Azeez Basha v. Union of India." 13.1 The University Grants Commission vested with the power to determine the standards for higher education is perfectly well within the powers to insist on a particular curriculum or a minimum qualification for approval of a degree and such being the case, it cannot be said that the Commission is only a body to disburse grant in aid to the universities. In fact, the Apex Court also considered Entry-66 pertaining to coordination and determination of standards in institution for higher education in Prof.Yashpal case and held thus: "46.Entry 66 which deals with coordination and determination of standard in institutions for higher education or research and scientific and technical institutions is in the Union List and Parliament alone has the legislative competence to legislate on the said topic. The University Grants Commission Act has been made with reference to Entry 66 (see Prem Chand Jain v. R.K.Chhabra and Osmania University Teachers' Assn. v. State of A.P.). The Act has been enacted to ensure that there is coordination and determination of standards in universities, which are institutions of higher learning, by a body created by the Central Government. It is the duty and responsibility of the University Grants Commission, which is established by Section 4 of the UGC Act, to determine and coordinate the standard of teaching curriculum and also level of examination in various universities in the country. In order to achieve the aforesaid objectives, the role of UGC comes at the threshold. The course of study, its nature and volume, has to be ascertained and determined before the commencement of academic session. Proper standard of teaching cannot be achieved unless there are adequate infrastructural facilities in the campus like classrooms, libraries, laboratories, well-equipped teaching staff of requisite calibre and a proper student-teacher ratio. For this purpose, the Central Government has made a number of rules in exercise of powers conferred by Section 25 of the UGC Act and the Commission has also made regulations https://hcservices.ecourts.gov.in/hcservices/ in exercise of power conferred by Section 26 of the UGC Act and to mention a few, the UGC Inspection of Universities Rules, 1960, the UGC Regulations, 1985 Regarding the Minimum Standards of Instructions for the Grant of the First Degree, UGC Regulations, 1991 Regarding Minimum Qualifications for Appointment of Teachers in Universities and Colleges, etc. UGC with the approval of the Central Government and exercising power under Section 22(3) of the UGC Act has issued a schedule of degrees which may be awarded by the universities. The impugned Act which enables a proposal on paper only to be notified as a university and thereby conferring the power upon such university under Section 22 of the UGC Act to confer degrees has the effect of completely stultifying the functioning of the University Grants Commission insofar as these universities are concerned. Such incorporation of a university makes it impossible for UGC to perform its duties and responsibilities of ensuring coordination and determination of standards. In the absence of any campus and other infrastructural facilities, UGC cannot take any measures whatsoever to ensure a proper syllabus, level of teaching, standard of examination and evaluation of academic achievement of the students or even to ensure that the students have undergone the course of study for the prescribed period before the degree is awarded to them. 47. The inter se evaluation of merit of candidates is often required to be done while making selection for some higher or specialised course of study or in the matter of employment. One of the important functions to be performed by UGC is coordination and determination of standards in institutions for higher education so that some kind of uniformity is maintained in level of teaching and examination and also award of degrees by various universities." 14. Section 26 of the UGC Act authorises the UGC to make Regulations. In exercise of the power conferred under Section 26 (1)(f), Regulations have been framed in 1985. The relevant provisions of such Regulations as amended from time to time are extracted hereunder :- "2. Admission / Students (1) No student shall be eligible for admission to the 1st degree course through non-formal/distance education unless he has successfully completed 12 years schooling through an examination conducted by a Board/University. In case there is no previous academic https://hcservices.ecourts.gov.in/hcservices/ record, he shall be eligible for admission if he has passed an entrance test conducted by the University provided that he is not below the age of 18 years on July 1 of the year of admission. (2) No student shall be eligible for the award of the first degree unless he has successfully completed a three year course; this degree may be called the B.A./B.Sc./B.Com. (General Honours/Special) degree as the case may be. Provided that no student shall be eligible to seek admission to the Master's Course in these faculties, who has not successfully pursued the first degree course of three years duration. Provided further that, as a transitory measure where the universities are unable to change over to a three year degree course, they may award