IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.20362 of 2009 and M.P.Nos.1 and 2 of 2009 Dr.P.Yellappa ... Petitioner Vs 1.The Registrar, Pondicherry University, Dr.B.R.Ambedkar Administration Building, R.V.Nagar, Kalapet, Puducherry 605 014. 2.Dr.M.Balamurugan ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, to call for the records of the selection of the second respondent as Reader in proceedings No.PU/Estt(T)/ET-3/2009-10 dated 11.06.2009 on the file of the first respondent and quash the same and consequentially direct the first respondent to select the petitioner as Reader in the first respondent University. For petitioner : Mr.V.Manisekaran For Respondents : Ms.A.V.Bharathi for R1 Ms.N.Kavitha for R2 O R D E R Heard both sides. 2. The petitioner has filed the present writ petition seeking to challenge the selection and appointment of the second respondent as Reader in the School of Education, Pondicherry University by proceedings dated 11.06.2009 and for a consequential direction to the first respondent-University to select the petitioner as Reader. 3. The facts leading to the present writ petition are as follows:- The petitioner is an aspirant to the post of Reader in Education. The first respondent -University made an advertisement on 02.07.2008 calling for suitable candidates for many posts including two posts of Reader in the Department of Education. Of the two posts, one post was reserved for other backward community and one was reserved for Schedule Tribe. The qualification prescribed for the post of Reader in the University was as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Good academic record with a doctorate degree or equivalent published work. In addition to this, candidates who join from outside the University system, shall also possess at least 55% of marks or an equivalent grade of "B" in the UGC 7 point scale with letter grades. O,A,B,C,D,E & F at the Master's degree level. And also with 5 years experience of teaching and/or research excluding the period spent for obtaining the research degrees and has made some mark in the areas of scholarship as evidenced by quality of publications, contribution to educational innovation and design of new courses and curricula." (Emphasis added) 4. It is stated that along with the completed application form, necessary certificates were directed to be included in support of their claim. In respect of the post of Reader in Education, the desirable area of specialisation was indicated as follows:- "Educational Technology, Economics of Education, Educational Administration and Management, Teacher Education 5. Thereafter, by a letter dated 01.05.2009, the petitioner was directed to appear for personal interview on 23.05.2009 in the university premises along with the relevant certificates. It was nearly after 5 months of the interview the petitioner came to know that the second respondent was appointed for the post of Reader on the basis of the recommendations of the Selection Committee. The second respondent, who was earlier working as Lecturer in the Department of Education, Periyar University had joined the post of Reader in the first respondent University on 24.06.2009. Challenging the appointment, the petitioner has come forward to file the present writ petition. 6. Notice was ordered to the respondents. On behalf of the first respondent, a counter affidavit dated 29.10.2009 was filed. The second respond had filed a typed set of papers containing the testimonials and research activities together with a supporting counter affidavit dated 30.10.2009. 7. The challenge made by the petitioner against the appointment of the second respondent was that he did not complete 5 years' of service as a Lecturer and had not studied in any one of the desirable area of specialization as required by the University. It is the the claim of the petitioner that he has more than 18 years of experience and he has got desirable specialisation in the area advertised by the University. According to the petitioner, out of the 6 candidates, he had done extremely well and he was more qualified. He also stated that the second respondent who was a permanent lecturer in the Periyar University, with one year lien on his post had joined the present post. https://hcservices.ecourts.gov.in/hcservices/ 8. In the counter affidavit filed by the first respondent University, it was contended that it was for the first respondent University and its Selection Committee duly constituted for the said purpose to decide whether a particular candidate was qualified or not. In respect of the qualification of the second respondent, it was stated as follows:- "...The second respondent who is selected for the post of Reader completed his M.Sc.(Maths) in the year 1999, M.Ed in the year 1997 and Ph.D Education in the year 2002 at Annamalai University and obtained 58.32%, 67.28% and "Highly Commendable Class" respectively. The second respondent's area of specialization is Mathematics Education, Educational Planning, Administration & Management and Educational Psychology. The 2nd respondent has got more than 5 years teaching experience in institutions like MSM B.Ed.College, SRM University, Periyar University and District Institute of Education and Training, Government of Tamil Nadu. The prescribed qualification for the post is teaching experience of 5 years. The 2nd respondent has got more than 5 years of teaching experience. Further at the time of interview for the post of Reader the 2nd respondent had completed more publications when compared to the petitioner. The 2nd respondent had guided 10 students in M.Phil (all of whom have received their M.Phil degrees) whereas the petitioner had guided none. Even in Ph.D level, only two students were under the guidance of the petitioner, whereas there were 7 students under the guidance of the 2nd respondent. Another additional qualification of the 2nd respondent is that he possesses two Master Degrees." (Emphasis added) 9. The second respondent in his counter affidavit apart from his academic qualifications, research papers published and guiding of M.Phil and Ph.D.Scholars, with reference to the teaching experience, it was stated hat he has 5 years and 28 days of teaching experience which was required under the notification. But he did not give the details of his teaching experience. However, in the typed set of papers filed along with the counter affidavit from pages 9 to 12, he had enclosed the certificates relating to his teaching experience. As per the certificates furnished, teaching experience of the second respondent are as follows:- Sl.No Institution Post Duration 1 District Institute of Education and Training, Ranipet Junior Lecturer in Mathematics 16.04.2003 to 29.02.2004 2 Mar Severios Memorial Training College Lecturer in General Education 02.06.2004 to 06.12.2004 https://hcservices.ecourts.gov.in/hcservices/ Sl.No Institution Post Duration 3 SRM School of Teacher Education (SRM Institute of Science and Technology), Deemed University Lecturer in Mathematics Education 07.12.2004 to 16.06.2005 4 Periyar University Lecturer in Department of Education 17.06.2005 to till date 10. The controversy raised in this writ petition narrows down to the question whether the second respondent has the necessary qualification of "5 years experience of teaching and/ or research excluding the period spent for obtaining the research degrees". Therefore, if the service put in by the second respondent in the District Institute of Education and Training (for short DIET) run by the State Government is taken as teaching experience, then the second respondent has the necessary experience. But the question is whether the Diet is a college and the second respondent's teaching in that college as a Junior Lecturer can be counted for the purpose of teaching experience required for the post of Reader. 11. Mrs.A.V.Bharathi, learned counsel appearing for the first respondent - University had produced a copy of the regulations framed by the University Grants Commission prescribing minimum qualification for appointment of Teachers in Universities. In respect of Reader, framed under Section 26 r/w 14 of the UGC Act, P.1.3.2. reads as follows:- "iii) Good academic record with a doctoral degree or equivalent published work. In addition to these, candidates who join from outside the university system, shall also possess at least 55% of the marks or an equivalent grade of B in the 7 point scale with latter grades O,A,B,C,D,E and F at the Master's degree level. Five years of experience of teaching and/ or research excluding the period spent for obtaining the research degrees and has made some mark in the areas of scholarship as evidenced by quality of publications, contribution to educational innovatioan, design of new courses and curricula." Therefore, she submitted that while for the post of Principal, the same Regulation mentioned about teaching experience in Universities/ Colleges and also for the Professor, it was mentioned about the teaching experience in Universities/National level institutions, but in respect of the post of Reader, the Regulation merely required experience in teaching. It did not notify the place of teaching. Since the second respondent was a junior lecturer in the DIET, that will also count as an experience in teaching. 12. To counter this argument, Mr.V.Manisekaran, learned counsel for the petitioner produced an information received from the University Grants Commission (UGC) by having recourse to Right https://hcservices.ecourts.gov.in/hcservices/ to Information Act. The UGC by its communication dated 08.12.2009 informed the petitioner which is as follows:- "With reference to your letter dated 27.11.2009 on the subject cited above, I am directed to inform you that the five years of experience of teaching for the post of Reader should be at Lecturer level and above. School level education does not come under the purview of UGC." (Emphasis added) Therefore, he stated that in as much as the DIET run by the State Government cannot be considered as a college, as it is not affiliated to any University, any Diploma or certificate given by the said institution is not referable to the provisions of the UGC Act. The second respondent do not have the minimum teaching experience and that the Selection Committee had erred in recommending his case without going into the fundamental issues. 13. However, Ms.A.V.Bharathi, learned counsel for the University stated that under the provisions of the Pondicherry University Act, 1985 and the statutes framed thereunder, a Selection Committee for the post of Reader comprised of Vice- Chancellor, an Academician who is the nominee of the visitor (President of India), three experts in the concerned subject, a Dean of the Faculty, Head of the Department and one representative of the SC/ST, Women and Physically handicapped. Therefore, it is this committee which had gone into the qualification of the second respondent. Since they were satisfied with the qualification of the second respondent, his selection cannot be set aside. 14. Mr.V.Manisekaran, learned counsel placed reliance upon the judgment of the Supreme Court in Dr.Rajni Bala Agrawal v. Lalit Narain Mithila University, (1999) 5 SCC 683 and referred to the following passage found in Paragraphs 7 and 9, which is as follows:- "7. In order to decide whether the appellant was eligible for being appointed as Principal with effect from 3-10-1985, it is necessary to look at some provisions of the Bihar State Universities Act, 1976 (which governs Lalit Narain Mithila University) and the statutes framed thereunder. Section 2(c) of the said Act defines “affiliated college” to mean “educational institution having received privileges of the university according to the provisions of this Act and university statutes relating thereto”. Section 2(f) defines “Mahavidyalaya or college” to mean “an institution affiliated under the privileges of this Act or maintained or controlled by the university or institution maintained by the State Government, in which, instruction is given, subject to the provision contained in sub-section (16) of Section 4, to https://hcservices.ecourts.gov.in/hcservices/ the students of the university of graduate standard under conditions prescribed in the statutes”. We are not concerned with the proviso to that sub- section. Under Section 2(i) “constituent college” means a teaching institution maintained or controlled by the university. Section 36 of the said Act provides for the framing of statutes. Under the statutes so framed relating to the mode of appointment, pay scale and qualifications for the posts of teachers of the university which came into effect on 22-7-1977, the qualifications for the appointment of a Principal of a degree college are laid down. The qualifications, inter alia, require not less than twelve years’ teaching experience at least as a Lecturer in the degree college/university department. Looking to the definition of “college” in the said Act, teaching experience has to be in an affiliated college. The affiliated college must also be a degree college. Under Section 2(s) a “Lecturer” is defined to mean a teacher of a college or the university possessing such qualifications as may be prescribed by the statutes. Therefore, the experience of teaching as a Lecturer must be as a Lecturer in an affiliated degree college which also, in turn, implies possession of qualifications required under the statutes of a Lecturer in a degree college. On 3-10-1985 the appellant did not have twelve years’ teaching experience in a degree college. With effect from 1-6- 1981, the said College was granted affiliation only up to intermediate level. Therefore, the experience of the appellant of teaching in the said College cannot be counted for the purpose of considering her for the post of Principal. It was only on 3-10-1985 that the College was granted affiliation up to graduate level. Moreover, the appointment of the appellant was as a Lecturer in a private college which was not affiliated to the University and the basis of such appointment and the qualifications which were required by the said private college at the material time are not on record. Therefore, her experience of teaching as a Lecturer in a private college cannot be considered as of the kind prescribed under the statutes read with the said Act. On 16-4-1988, therefore, when Respondent 4 was appointed as Principal of the said College, the appellant did not have the requisite twelve years’ teaching experience as a Lecturer in a degree college which would qualify her for the post of Principal. 9. The appellant contended that her teaching experience as temporary Hindi Lecturer and as temporary Principal right from 1-9-1971 should be counted for the purpose of her appointment as Principal. The statutes, however, https://hcservices.ecourts.gov.in/hcservices/ which specify experience in a degree college or university department, have been framed under the Bihar State Universities Act, 1976 under which a “college” has been defined under Section 2(f) as an affiliated college and an “affiliated college” has been defined as an educational institution which has received privileges of the university according to the provisions of the Act and the statutes. A private unaffiliated college, therefore, does not come within the definition of a college as defined under the Bihar State Universities Act, 1976. The High Court has, therefore, rightly held that the appellant was not eligible for being appointed as Principal of an affiliated degree college. We also find it difficult to treat the appellant’s teaching experience from September 1971 to October 1985 as a qualifying experience for the purpose of the post of a Principal of a degree college. The statutes require teaching experience of twelve years as a Lecturer in a degree college. It is not at all clear from the material on record that the said College was a degree college from 1971 to 1985. In fact, when by notification of 6-10- 1982, affiliation was granted to the said College up to intermediate level, it was expressly provided that teaching of degree level should not be arranged in the said College. Secondly the appointment of the appellant initially as a Lecturer was also on a temporary basis and her subsequent appointment as Principal was also on a temporary basis. Looking to all the facts and circumstances the High Court has rightly come to the conclusion that the appellant was not eligible for being appointed as Principal of the said College." (Emphasis added) 15. Per contra, Mrs.A.V.Bharathi, learned counsel for the University placed reliance upon the judgment of the Supreme Court in B.C.Mylarappa v. Dr.R.Venkatasubbaiah,(2008) 14 SCC 306 and contended that the experience as a Lecturer and experience as a Research assistant can be counted together. Hence, the second respondent has the necessary qualification. She made reference to the following passage found in paragraph 21 and 26 which is as follows:- "21. ...It cannot be disputed that these two experiences, namely, experience as Lecturer and experience as Research Assistant, if counted, the eligibility of the appellant for appointment to the post of Professor could not be questioned. In Kumar Bar Das (Dr.), this Court in detail had considered this aspect of the matter and in the said decision, this Court observed that the opinion of experts in the Selection Committee must be taken to be that the appellant’s teaching and research experience satisfied the above conditions of 10 years as mentioned for appointment to the post of Professor. In that case, https://hcservices.ecourts.gov.in/hcservices/ this Court observed as follows: (SCC p.462, para 27) “27. In our view, having regard to the high qualifications of the experts and the reasons furnished by the Syndicate as being the obvious basis of the experts’ opinion, the Chancellor ought not to have interfered with the view of the experts. The experts’ views are entitled to great weight as stated in University of Mysore case….” 26. Admittedly, there is nothing on record to show any mala fides attributed against the members of the expert body of the University. The University Authorities had also before the High Court in their objections to the writ petition taken a stand that the appellant had fully satisfied the requirement for appointment. In this view of the matter and in the absence of any mala fides either of the expert body of the University or of the University Authorities and in view of the discussions made hereinabove, it would be difficult to sustain the orders of the High Court as the opinion expressed by the Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction." 16. The learned counsel for the University also placed reliance upon the judgment of the Supreme Court in Mohd. Altaf (3) v. U.P. Public Service Commission reported in (2008) 14 SCC 146. Reliance was placed upon paragraphs 3 and 4, which is as follows:- "3. With regard to the names of the candidates, who appeared in the interview, as mentioned in Para B, it has been pointed out by the learned counsel for the respondent that qualification prescribed for the Principals, Government Intermediate Colleges, as per the statutory rule, inter alia, is as under: “Essential: (1)-(2) * * * (3) At least three years’ experience as Head of a Higher Secondary or normal school or in teaching Intermediate or higher classes or as a Lecturer in CT or LT training college.” Mr.Tripathi submits that normal interpretation of the aforesaid clause would mean that a candidate must be possessing three years’ experience as a Head of Higher Secondary or normal school or must be having teaching experience at the intermediate or higher classes but such teaching experience cannot be in a school where he was teaching lower classes than intermediate classes. https://hcservices.ecourts.gov.in/hcservices/ 4. In our view, this submission cannot be accepted in view of the regulations framed by the State Government as mentioned in Appendix A to the said regulations which provide that higher classes mean classes from IX to XII and experience of teaching these classes is admissible for the post of Headmaster of Intermediate College. This is also clarified by the State Government by issuing circular dated 12-4-1973." In the light of the above, she prayed for dismissal of the writ petition. 17. Adopting the stand of the University, Ms.N.Kavitha learned counsel appearing for the second respondent submitted that UGC had framed regulations in September 2009 for the post of Reader, wherein teaching experience is shown in 4.3.iii is as follows:- "iii. A minimum of five years of experience of teaching and / or research in an academic/research position equivalent to that of Assistant Professor in a University/College or Accredited Research Institution/industry excluding the period of Ph.D research with evidence of published work and a minimum of 5 publications as books and/or research/policy papers in indexed/ISBN/ISSN numbered books/journals and University developed -ISBN/ISSN list of journals hosted in the website of the concerned University." She submitted that in the earlier Regulation of the UGC similar language was not used. 18. The learned counsel submitted that the State Government had issued adhoc rules for the academic post in the DIET by G.O.Ms.No.133 School Education Department dated 14.06.2007. In that order, the State Government recruits Junior Lecturers with Masters degree with not less than 50% and with an M.Ed with 55%. 19. In the preamble to the Rules, it was indicated as follows:- "The general and the special rules applicable to the holders of the permanent posts in the Tamil Nadu Collegiate Educational Service shall apply to the holders of the temporary post of Professors, sanctioned from time to time, in the Teacher Education Research and Training Department, subject to the modifications specified in the following rules:" 20. The learned counsel also placed reliance upon the Regulations issued by the Government of India, Ministry of Human Resources Development dated 01.11.1989 constituting the DIET and the concept as set out in Chapter I was indicated. After referring to those guidelines, she stated that the concept of DIET contains three main functions viz., i)training ii)resource support and iii) action research. The teaching in the DIET can be taken as research activities. https://hcservices.ecourts.gov.in/hcservices/ 21. She also placed reliance upon the Regulations framed by the National Council for Teacher Education (NCTE) prescribing norms and standards with effect from 10.12.2007. In that in Appendix 4, it was indicated that the Lecturer for manning the DIET or Teacher Education College must have a Master's Degree with M.Ed or Master's Degree with B.Ed (having 55% marks). The learned counsel took pains to contend that her client has got the qualification of teaching experience as prescribed by the University and that he did not suffer from any disqualification as contended by the petitioner. 22. Since the specific stand of the University in the counter affidavit was that the second respondent has got more than 5 years teaching experience, this Court is not inclined to go into the other issue i.e. whether he has the research experience and that experience should be counted to include in the 5 years' teaching experience. 23. In support of her contention, the learned counsel placed reliance upon the Uttar Pradesh Public Service Commission v. Dr.Saad Usmani reported in (1998) 8 SCC 345. In that case, holding the post of Demonstrator was taken into account as the part of teaching experience which was accepted by the High Court and the same was challenged before the Supreme Court. The Supreme Court held that the High Court was wrong in reversing the view of the Public Service Commission. 24. The learned counsel also relied upon the judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal reported in (2007) 10 SCC 260 and relied upon the following passages found in paragraphs 13,14 and 20-23. "13. Posts of Headmasters, it would bear repetition to state, are governed by the 1970 Rules. Five years’ teaching experience is required for consideration for appointment to the post of Headmaster which in turn is referable to teaching in certain capacity on certain categories or posts. 14. It is, therefore, difficult to accept that those who had been holding posts of Teacher, Grade III with the minimum educational qualification of Matriculation or Secondary Education with a certificate in training would be entitled to teaching in secondary classes or higher classes. 20. A person in order to be considered for promotion to a higher post must possess the essential qualification. If he does not do so, he cannot be considered therefor. Even the Selection Committee in absence of any express power conferred upon it cannot relax such essential qualification. [See J.C. Yadav v. State of Haryana and Bhanu Prasad Panda (Dr.) v. Chancellor, Sambalpur University.] https://hcservices.ecourts.gov.in/hcservices/ 21. Recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential