IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.03.2009 CORAM; THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.3570 of 1998 and W.M.P.Nos.5354 and 5355 of 1998 Backward Class Employees Welfare Association of I.I.T.(M) represented by its Secretary, Prof.N.R.Neelakanthan. ..Petitioner Vs. 1.The Chairman, The Council of IIT, Ministry of HRD, New Delhi. 2.The Chairman, Board of Governors, Indian Institute of Technology, Chennai-600 036 3.The Director, Indian Institute of Technology, Chennai-600 036. 4.The Registrar, Indian Institute of Technology, Chennai-600 036. 5.The Chairman, National Commission for Backward Classes, Govt. of India, West Block-1, 2nd Floor, Wing No.3, R.K.Puram,New Delhi. 6.The Chairman, National Commission for SC/ST's Govt.of India, New Delhi. 7.Dr.P.Bhyrappa, Department of Chemistry. Indian Institute of Technology, Madras-600 036. https://hcservices.ecourts.gov.in/hcservices/ 8.Dr.N.Narasimha Murthy, Department of Chemistry, Indian Institute of Technology, Madras-600 036. 9.Dr.Ms.Sohini Paldey, Department of Metallurgical Engineering, Indian Institute of Technology Madras-600 036 ..Respondents Writ Petition is filed under Article 226 of the Constitution of India for the issue of writ of Declaration declaring that Clauses 9.10, 12.1, 12.6, 12.8, 12.10, 15.1 and 15.2 of the statute of Indian Institute of Technology are arbitrary, illegal and unconstitutional as the same are violative of Article 14 and Article 16 of the Constitution of India Act 59 of 61 and direct the respondents 1 to 4 to cancel all appointments made on ad-hoc basis as Temporary Technical Assistants, Temporary Senior Scientific Officer 1, Senior Scientific Officer 1 on contract, Temporary Senior Scientific Officer 2, Senior Scientific Officer 2 on contract, Lecturer on contract, Lecturer on ad hoc basis, Assistant Professor on contract, Visiting Professor on ad-hoc basis, Visiting Faculty on ad-hoc basis, Professors on ad hoc basis, Part-time faculties, Visiting Part-time faculties, Visiting Part-time professors, Part-time Lecturer, Re- employment of retired staff on contract, re-employment of retired faculty as Consultant. For petitioner : Mr.K.Shanmuga Kani For respondents 1 and 4 : Mr.Vijay Narayan Senior Counsel for Mr.R.Parthiban For respondents 5 and 6 : Mr.T.Srinivasamoorthy For respondents 2,3,7 and 9 : Mr.S.Srinivasan ORDER The Writ Petition is filed by the petitioner association represented by its Secretary. 2. The prayer in the Writ Petition is to declare certain statutes framed under the Institutes of Technology Act 1961 are unconstitutional and ultra vires. The attack is made against clauses 9.10, 12.1, 12.6, 12.8, 12.10, 15.1 and 15.2 of the statutes called as the Indian Institute of Technology, Kharagpur/ Bombay/ Madras /Kanpur/Delhi Statutes. Apart from the declaration of these statutes as violative of Articles 14 and 16, a consequential prayer for calling for the records pertaining to the appointments to various https://hcservices.ecourts.gov.in/hcservices/ faculty positions and quash all the appointments made on ad-hoc basis for the post of Temporary Technical Assistants, Temporary Senior Scientific Officer 1, Senior Scientific Officer 1 on contract, Temporary Senior Scientific Officer 2, Senior Scientific Officer 2 on contract, Lecturer on contract, Lecturer on ad-hoc basis, Assistant Professor on contract, Visiting Professor on ad-hoc basis, Visiting faculty on ad-hoc basis, Professors on ad-hoc basis, Part-time faculties, Visiting Part-time faculties, Visiting Part-Time Professors, Part-time Lecturer, Re-employment of retired staff on Contract, Re-employment of Retired Faculty as Consultant is also made. 3. In paragraph 6 of the affidavit it has been averred as follows: "The specific instances of ad hoc appointments and selection through backdoor are elaborated in the annexure appended to this affidavit which when perused would reflect the utter disregard and callous attitude of the respondent to the normal procedure of appointments contemplated under the Act. I crave leave to add the affected parties as respondents to the above writ petition, as early as I get to know the full list of persons selected under the ad hoc basis and as soon as the said list is furnished to me by the respondents." 4. In the annexure though it is stated that a copy of the annexure was appended to the affidavit filed in support of the writ petition, no such annexure was found in the affidavit filed. The counsel for the petitioner furnished a copy of the annexure alleged to have been filed along with the writ petition. It contained various names of faculties appointed on ad-hoc basis by the second and third respondents. No attempts were made to implead all the persons likely to be affected in case the petitioner succeeds in the writ petition. 5. It is seen from the typed set of papers (page 274) that the 7th respondent Dr.P.Bhyrappa was appointed as Assistant Professor on contract basis for two years in the Chemistry Department with effect from 25.9.1997. Similarly, the 8th respondent Dr.N.Narasimha Murthy was appointed on contract basis for two years with effect from 8.8.1997 (Page 272). In the same way, the 9th respondent Dr.Ms.Sohini Paldey was appointed as Assistant Professor on contract basis in the Metallurgical Engineering Department with effect from 16.1.1998. Excepting for these three persons, the petitioner association did not make the affected parties as party respondents to the writ petition. Though it was claimed as soon as they got full list of persons they will make them parties, in spite of the fact the writ petition was pending for over 10 years no such efforts have been made. The second portion of the prayer to cancel the appointments in respect of the https://hcservices.ecourts.gov.in/hcservices/ persons whose names are found in the annexure cannot be granted. The writ petition is liable to be rejected on that ground. 6. The Supreme Court vide judgment in PRABODH VERMA AND OTHERS V. STATE OF UTTAR PRADESH AND OTHERS reported in 1984 (4) SCC page 251 in paragraphs 28 and 50.1 held as follows: "28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties.-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties." 50. To summarize our conclusions: (1)A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties." Therefore, it is liable to be rejected on the short ground. https://hcservices.ecourts.gov.in/hcservices/ 7. With reference to the prayer regarding invalidation of various statutes listed out in the prayer it is necessary to extract the impugned statutes for better appreciation of the facts involved in this case and they are as follows: "9.10 - In exceptional cases, subject to the availability of funds, the Director shall have the power to create temporary posts with the approval of the Chairman, of not more than two years' duration on approved scales of pay under report to the Board, provided that no such post, of which the Director is not the appointing authority, shall be so created. 12.1 - All posts at the Institute shall normally be filled by advertisement, but, the Board shall have the power to decide, on the recommendations of the Director, that a particular post be filled by invitation or by promotion from amongst the members of the staff of the Institute. 12.6 - Where a post is to be filled on contract basis or by invitation, the Chairman, may, at his discretion, constitute such ad hoc Selection Committees, as circumstances of each case may require. 12.8 - Notwithstanding anything contained in these Statues, the Board shall have the power to make appointments of persons trained under "approved" programmes in such manner as it may deem appropriate. The Board will maintain a schedule of such "approved" programmes. 12.10- The Selection Committee shall examine the credentials of all persons who have applied and may also consider other suitable names suggested, if any, by a member of the Selection Committee or brought otherwise to the notice of the Committee. The Selection Committee may interview any of the candidates as it thinks fit and shall, at the discretion of its Chairman, cause a written test or tests to be held for all or some of the candidates as the chairman may think fit, and shall make its recommendations to the Board or the Director, as the case may be, the names of the selected candidates being arranged in order of merit. 15.1- Notwithstanding anything contained in these Statutes, the Board may, in special circumstances, appoint an eminent person on contract for a period not exceeding five years, with a provision of renewal for further period, provided that every such appointment and the terms thereof shall be subject to the prior approval of the Visitor. https://hcservices.ecourts.gov.in/hcservices/ 15.2 -Subject to the provisions contained in Act, the Board may appoint any person on contract in the prescribed scales of pay and on the terms and conditions applicable to the relevant post for a period not exceeding five years with a provision of renewal for further period. For making such appointments, the Chairman may, at his discretion, constitute such ad hoc Selection Committees, as the circumstances of each case may require.” 8. Mr.K.Shanmuga Kani, learned counsel for the petitioner submitted that the third respondent was constituted by the Institutes of Technology Act 1961 and in terms of Section 25 all appointments of the staff except that of the Directors shall be made in accordance with the procedure laid down in the statutes. Section 25 reads as follows: "Section 25 - All appointments on the staff of any Institute, except that of the Director, shall be made in accordance with the procedure laid down in the Statutes, by- (a)the Board, if the appointment is made on the academic staff in the post of Lecturer or above or if the appointment is made on the non-academic staff in any cadre the maximum of the pay-scale for which exceeds six hundred rupees per month; (b)by the Director, in any other case.” 9. The learned counsel also made emphasis to Section 7(1) which is as follows: "7(1) Every Institute shall be open to persons of either sex and of whatever race, creed, caste or class, and no test or condition shall be imposed as to religious belief or profession in admitting or appointing members, students, teachers or workers or in any other connection whatsoever." 10. The counsel submitted that disregarding the Act and the Statutes the third respondent Director started making several appointments and during the period from 1986 to 1997, 180 ad hoc appointments to various faculty positions under 17 heads of departments have been made and 80 of such appointees have been made permanent subsequently. By making such appointments the chances of appointment or promotion to members belonging to the Backward Classes and SC/ST sections have been given a go by. Out of 400 faculty members, persons belonging to SC/ST are only 2 and those belonging to backward community are only 40. Therefore, perverting the constitutional mandate of Article 16(4) of the Constitution the respondents have filled up the posts arbitrarily. https://hcservices.ecourts.gov.in/hcservices/ 11. The specific contention regarding clause 12.1 of the Statutes is that it gives power to the Board to decide on the recommendation of the Director that a particular post to be filled by invitation or by promotion and such a clause is likely to be exercised arbitrarily. Similarly, under clause 12.6 of the Statutes, if the post was to be filled on contract basis or by invitation the Chairman can at his discretion constitute an ad-hoc selection committee as the circumstances may warrant. Similarly, clause 12.8 gives power to make appointments of persons trained under approved programmes as it may deem appropriate. Under clause 12.10 the Selection Committee so nominated can consider names of persons including of its own suggestions or brought otherwise to the notice of the Committee. Under Clause 9.10 in exceptional cases subject to availability of funds the Director shall have the power to create temporary posts with the approval of the Chairman of not more than two years’ duration in approved scales of pay. 12. Under clause 15.1 the Board has been given power to appoint eminent persons on contract basis for a period not exceeding 5 years with a provision of renewal for a further period and such appointments will be subject to prior approval of the Visitor. Under clause 15.2 power has been given to the Board to appoint any person on contract on such terms and conditions for a period not exceeding 5 years with a provision of further renewal. Power has also been given to the Chairman to constitute Selection Committee for making such appointment. Therefore the learned counsel submitted that by misusing these powers the posts have been packed up with candidates of the choice of the Director and thus the Board had disregarded the mandate of Articles 14 and 16 of the Constitution. Hence, the present writ petition has been filed in public interest. 13. Notice of motion was ordered on the writ petition on 16.3.1998. It was stated by this Court that the respondents cannot be restrained if they do according to law and they can do according to law. 14. On notice from this Court, the second respondent has filed a detailed counter affidavit dated NIL (August 1998). It was stated that the petitioner association was an unrecognised association and they have no right to file a writ petition questioning the appointments made by the I.I.T., Madras. It was also stated that the petitioner's contention that the 180 ad hoc appointments to various faculties made are incorrect. The further submission that from out of those ad-hoc appointments 80 have been made permanent was also denied. 15. In paragraph 29 of the counter affidavit it was averred as follows: "This respondent further submits that the Board of Governors in https://hcservices.ecourts.gov.in/hcservices/ their 135th meeting held on 29th November 1991 resolved to approve in principle the filling up of faculty positions of the Institute by Provisional appointment of Visiting Faculty. The Board requested the Director to place the details of the applicants for Visiting Faculty positions shortlisted by the Dean (Academic Research) and Dean (Administration) after recommendations from the concerned Departmental Committees before the Sub-committee of the Board of Governors of the Institute consisting of the Director as the Chairman and two members. The Board authorised the Chairman to approve such appointments on the recommendations of the sub-committee of the Board on suitable remunerations commensurate with the qualifications, experience etc. Further the Board in its 150th Meeting resolved to approve appointment of Assistant Professors and Associate Professors on contract basis for a period not exceeding three years and authorised the Director to process the applications through a Selection Committee constituted with outside experts and recommend to the Board of Governors." 16. They also contended that there was no denial of the mandate of reservation in favour of Backward and SC/ST communities in view of these contract appointments. The power of Board to make such appointments have been circumscribed by the Statutes and the persons who are manning the Board are men of eminence with integrity. 17. Based on these divergent facts Mr.K.Shanmuga Kani, learned counsel for the petitioner drew the attention of this Court to the judgment of the Supreme Court reported in AIR 1987 SC 479 (STATE OF GUJARAT V. S.TRIPATHY AND OTHERS). This is for the purpose of showing that if the allegations raised in the affidavit were not met immediately in such circumstances the Supreme Court came down heavily on the Government for filing a counter affidavit after four years in that case. In the present case the counter was filed after 10 years. 18. The learned counsel also placed reliance upon the judgment of the Supreme Court in DR.KRUSHNA CHANDRA SAHU AND OTHERS V. STATE OF ORISSA AND OTHERS reported in AIR 1996 SUPREME COURT 352. This is for the purpose of showing that in the absence of any guidelines a Selection Committee cannot act on its own and select candidates. The Selection Committee does not have any inherent jurisdiction to lay down norms and clauses for selection and no such power can be assumed by implication. If the Selection Committee is allowed such jurisdiction it would amount to clothe them with the power of enacting a rule for selection. 19. Thereafter the learned counsel placed reliance upon the judgment of the Supreme Court in PRAVEEN SINGH V. STATE OF PUNJAB AND OTHERS reported in AIR 2001 SC 152. Reliance was placed on the following passage found in para 8. https://hcservices.ecourts.gov.in/hcservices/ ".....While it is true that the administrative or quasi judicial authority clothed with the power of selection and appointment ought to be left unfettered in adaptation of procedural aspect but that does not however mean and imply that the same would be made available to an employer at the cost of fairplay, good conscience and equity. This Court in the case of J.P.Kulshreshtha v. Chancellor, Allahabad University, AIR 1980 SC 2141:(1980 Lab IC 692 : 1980 All LJ 571)did recognise the undetectable manipulation of results being achieved by remote control tacits and masked as viva voce test resulting (in)the sabotaging of the purity of proceedings. This Court held "interviews as such are not bad but polluting it to attain illegitimate ends is bad." 20. The learned counsel also drew the attention of this Court to the judgment of the Supreme Court in AIR INDIA v. NERGESH MEERZA AND OTHERS reported in 1981 (4) SCC page 335. Reliance was placed upon paragraphs 29 and 70 which may be usefully extracted below. Para."29.The most apposite decision on the subject is the case of All Indian Station Masters' & Assistant Station Masters' Association v. General Manager, Central Railways where the law on the subject was succinctly stated by Das Gupta,J., who speaking for the Court as follows: So multifarious are the activities of the State that employment of men for the purpose of these activities has by the very nature of things to be in different departments of the State and inside each department, in many different classes. For each such class there are separate rules fixing the number of personnel of each class, posts to which the men in that class will be appointed, questions of seniority, pay of different posts, the manner in which promotion will be effected from the lower grades of pay to the higher grades, e.g., whether on the result of periodical examination or by seniority, or by selection or on some other basis-and other cognate matters. Each such class can be reasonably considered to be a separate and in many matters independent entity with its own rules of recruitment, pay and prospects and other conditions of service which may vary considerably between one class and another. It is clear that as between the members of the same class the question whether conditions of https://hcservices.ecourts.gov.in/hcservices/ service are the same or not may well arise. If they are not, the question of denial of equal opportunity will require serious consideration in such cases. Does the concept of equal opportunity in matters of employment apply, however, to variations in provisions as between members of different classes of employees under the State? In our opinion, the answer must be in the negative." Para "70.For these reasons, therefore, the argument of Mr.Setalvad that the conditions of service with regard to retirement, etc, amount to discrimination on the ground of sex only is overruled and it is held that the conditions of service indicated above are not violative of Article 16 on this ground." In the light of the same, the learned counsel wanted the statutes impugned in the writ petition to be declared as ultra vires of the Constitution. 21. Mr.Vijay Narayan, the learned Senior Counsel sought to question the maintability of the writ petition on the ground that there was no personal right of the representatives or its members are affected. It is only in cases where a writ is in the nature of Quo- warranto the concept of locus standi could have wider basis. In this context he relied upon the judgment of the Division Bench of this Court in NADAR MAHAJANA SANGAM, V. RESERVE BANK OF INDIA reported in 2006 (4) M.L.J. page 385. The counsel placed reliance upon the following passage found in para 9 wherein the earlier decision of the Supreme Court was referred to and followed:- "9. In Vinoy Kumar v. State of Uttar Pradesh, AIR 2001 SC 1739 : 2001 (4) SCC 734, the Supreme Court observed (vide para 2): "2: Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rules is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a https://hcservices.ecourts.gov.in/hcservices/ matter of prudence, that the Court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organization which can take care of such cases. Even in cases filed in public interest, the Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief. 10.In State of Orissa v. Ram Chjandra Dev and Another, AIR 1964 SC 685, The Supreme Court observed (vide para 8): "8.But though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the Article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is legally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226". 11.Similarly, in Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828:(1966) 2 MLJ (SC)87: 1966(2) An.W.R.(SC)87 (vide para 8) the Supreme Court observed: "The right that can be enforced