Madras High Court
S.Gopi … vs The State Of Tamil Nadu on 14 June, 2022
Author: R. Suresh Kumar
Bench: R.Suresh Kumar
W.P.No.10716 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition No.10716 of 2018
and W.M.P.No.12657 of 2018
S.Gopi …. Petitioner
-Vs-
1.The State of Tamil Nadu
Rep.by its Principal Secretary to Government
Fort St.George, Chennai 600 009.
2.The Directorate of Technical Education
Rep.by its Commissioner, No.53, Sardar
Patel Road, Guindy, Chennai 600 025.
3.The Government College of Technology
Rep.by its Principal, Thadagam Road
Near Tamil Nadu Agricultural University
Coimbatore – 641 013.
4.Mr.Srinivasamurthy
Associate Professor
Department of Production Engineering
Government College of Technology
Thadagam Road, Near Tamil Nadu
Agricultural University, Coimbatore-641 013. …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for
the issuance of a Writ of Mandamus directing the 1st respondent to place the
petitioner as senior to the 4th respondent in the post of Associate Professor /
1 / 21
https://www.mhc.tn.gov.in/judis
W.P.No.10716 of 2018
Production Engineering in the 3rd respondent College taking note of the seniority
of the petitioner over the 4th respondent in the cadre of Assistant Professor as
per rule 35(a) and 35 (aa) of the Tamil Nadu Subordinate Service rules and
taking note of his superior qualifications and consequently direct the 1st and 2nd
respondents to consider the petitioner for the only available post of Professor /
Production Engineering in the 3rd respondent College in preference to the 4th
respondent.
For Petitioner : Mrs.Nalini Chidambaram
Senior Counsel for Ms.C.Uma
For Respondents : Mr.R.U.Dinesh Rajkumar
Additional Government Pleader
-for RR 1 to 3
R4 Served – No appearance
ORDER
The prayer sought for herein is for a Writ of Mandamus directing the 1st respondent to place the petitioner as senior to the 4th respondent in the post of Associate Professor / Production Engineering in the 3rd respondent College taking note of the seniority of the petitioner over the 4th respondent in the cadre of Assistant Professor as per rule 35(a) and 35 (aa) of the Tamil Nadu Subordinate Service rules and taking note of his superior qualifications and consequently direct the 1st and 2nd respondents to consider the petitioner for the only available post of Professor / Production Engineering in the 3rd respondent College in preference to the 4th respondent. 2 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018
2. It is the case of the petitioner that, the petitioner passed B.E.(Production Engineering) in the year 2001 with first class. The fourth respondent completed M.E.Degree in Manufacturing Engineering Design and completed the course in 2007.
3. In 2006, the Teachers Recruitment Board (In short 'TRB') called for applications from eligible candidates for the post of Lecturer in Production Engineering in Engineering Colleges. Since the petitioner has become successful, he has been selected and appointed as Lecturer, by order of appointment dated 20.07.2006 in Production Engineering in the Government College of Technology, Coimbatore. The said post was subsequently re-designated as Assistant Professor. By the same order, the fourth respondent also was recruited as Lecturer ie., Assistant Professor in the Department of Production Engineering in the Government College of Technology, Coimbatore. Based on the marks obtained by the petitioner in the TRB examination, the petitioner was placed above the fourth respondent in the entry level post of Lecturer, which has been subsequently re-designated as Assistant Professor.
4. Thereafter, the next promotional avenue is Associate Professor and for such promotion, the necessary qualification and experience has been prescribed under the Adhoc Rules published in G.O.Ms.No.1533, Education and Public 3 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 Health Department dated 10.09.1964. As per the said rule, the qualifications prescribed are as follows, “5. Qualifications : No person shall be eligible for appointment to the post unless he possesses the following qualifications, namely:-
(i) (a) B.E / B.Tech and M.E / M.Tech in relevant branch with first class or equivalent either in B.E./ B.Tech or M.E / M.Tech and Ph.D or equivalent, in appropriate discipline;
(b) Post Ph.D. Publications and guiding Ph.D. Students is highly desirable; and
(ii) Minimum of five years experience in teaching / research / industry experience of which TWO years post Ph.D experience is desirable.
(iii)In case of Architecture, Professional practice of 5 years as certified by the Council of Architecture shall be considered valid.”
5. With this background, when promotion to the post of Associate Professor was considered, the qualification and experience of both the petitioner as well as the fourth respondent seems to have been evaluated by the respondents. In this context, since the qualification of holding Ph.D degree also became a must for holding the post of Associate Professor, that was also taken into account apart from the experience gained in the Assistant Professor category. For the panel for promotion in the year 2012-13, according to the respondents, the crucial date was 01.03.2012. Based on that crucial date, the 4 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 candidature of the petitioner as well as the fourth respondent when were considered for promotion, it was found according to the respondents that the fourth respondent was eligible and qualified to hold the post of Associate Professor as per the Adhoc Rules and not the petitioner.
6. In this context, the reason for coming to such conclusion by the respondents was that, the five years experience as contemplated under the Adhoc Rules was completed only by the fourth respondent and not by the petitioner, as the petitioner admittedly was short of four months of the five years experience as on the crucial date ie., on 01.03.2012. Therefore, the respondents decided to select the fourth respondent for promotion to the post of Associate Professor in the same discipline. Accordingly, such a promotion was given for the panel year 2012-13 to the fourth respondent.
7. In this context, it is to be noted that, at that time both the petitioner as well as the fourth respondent seems to have been pursuing their Ph.D. Degrees of course which the petitioner completed on 19.11.2013, whereas the fourth respondent completed only on 22.08.2015.
8. Nevertheless, the candidature of the petitioner was successfully considered for promotion to the post of Associate Professor only in the year 5 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 2015-16. Accordingly such promotion was given to the petitioner. Thereby, the fourth respondent has been placed senior than the petitioner in the post of Associate Professor.
9. Now the further promotion to the post of Professor has come, which is a single post for which whether the petitioner has to be selected or the fourth respondent has to be given the said post of Professor based on seniority was the question that arose.
10. In that context, the petitioner, by relying upon the relevant Adhoc Rules in this regard, claimed seniority over the fourth respondent on the ground that the petitioner completed Ph.D. Degree, which was one of the essential qualification as prescribed by the AICTE, which has subsequently been accepted or adopted by the State Government also in their Adhoc Rules. Admittedly, the petitioner has completed Ph.D Degree on 19.11.2013, whereas the fourth respondent completed Ph.D Degree only on 22.08.2015. Therefore, since the petitioner has completed Ph.D. Degree well ahead of the fourth respondent based on which only the seniority should be fixed by regularizing the promotion, which according to the petitioner has been irregularly given to the fourth respondent.
6 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018
11. In order to rectify these anomalies in fixing the seniority and consequential promotion, the petitioner had given detailed representations to the respondents on 12.05.2017, 09.08.2017 and 20.12.2017. Those representations since have not been considered and no fruitful result has come, the petitioner approached this Court by filing the present writ petition.
12. Heard Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the petitioner, who would contend that, if at all G.O.Ms.No.1533 dated 10.09.1964 referred to above is the Adhoc Rules under which the qualification had been prescribed and based on such qualification if at all the promotion has to be given to these two people ie., the petitioner and the fourth respondent to the post of Associate Professor the said Rule should have been strictly complied with.
13. In this context, the learned Senior Counsel would point out that the crucial date being 01.03.2012, on that date admittedly the petitioner did not complete the five years experience nor completed the Ph.D. Degree. However, the fourth respondent also did not have the Ph.D. Degree, but might have completed five years experience.
7 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018
14. If at all promotion has to be given to the petitioner and the fourth respondent or the fourth respondent alone to the post of Associate Professor, the twin test or qualification should be fulfilled by the candidate concerned. She would further submit that, in the case in hand insofar as the fourth respondent is concerned, he admittedly did not complete the Ph.D. Degree on the crucial date ie., on 01.03.2012 during the promotion panel year 2012-13. Therefore, promotion ought not to have been given.
15. However, the fourth respondent would be eligible to get promotion to the post of Associate Professor on his completion of Ph.D.Degree which he completed only on 28.02.2015, whereas the petitioner has completed the Ph.D.Degree on 19.11.2013. Therefore, at least for the panel year 2014-15 the petitioner should have been considered for promotion to the post of Associate Professor.
16. The learned Senior Counsel would further enlarge her arguments and point out that, had the petitioner been considered for the year 2014-15 for promotion to the post of Associate Professor and consequently if promotion was given, the fourth respondent since admittedly completed Ph.D.Degree only on 22.08.2015, his promotion to the post of Associate Professor can only be regularised from that eligibility date ie., clearing the Ph.D.Degree and therefore, 8 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 assuming that the promotion was wrongly given to the fourth respondent already in the year 2012-13, seniority accordingly should have been fixed between the petitioner and the fourth respondent by taking into account the fulfillment of twin test as referred to above and if that being so, the petitioner would be certainly senior to the fourth respondent and therefore accordingly the consequential benefit of further promotion to the post of Professor shall also come to the petitioner based on seniority as per the relevant Rules and therefore the learned Senior Counsel seeks the indulgence of this Court.
17. Heard Mr.R.U.Dinesh Rajkumar, learned Additional Government Pleader for the respondents, who heavily relied upon the Adhoc Rules as per G.O.Ms.No.1533 dated 10.09.1964. The relevant portion ie., Clause 5 under the heading 'Qualifications' has already been extracted herein above.
18. By relying upon this Government Order, the stand taken by the respondents for giving promotion to the fourth respondent to the post of Associate Professor has been justified in the following averments made in the counter affidavit, which has been heavily relied upon by the learned Additional Government Pleader.
9 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 “ 6. It is submitted that whenever the Government issue the orders, revising the educational qualification of the teaching staff, amending the Adhoc Rules are mandatory. Hence, necessary proposal has been sent to the Government by the Director of Technical Education to amend the qualification in the Adhoc Rules according to G.O.(Ms) No.95, Higher Education (C2) Department dated 05.05.2010.
7. It is submitted that in Government Engineering Colleges, the post of Associate Professor is being filled by promotion from the qualified teaching staff in the cadre of Assistant Professor. Since the Adhoc Rules for the post of Associate Professor in Government Engineering Colleges has not been amended as per G.O.(Ms) No.95, Higher Educationl (C2) Department, dated 05.05.2010, while preparing the panel of Associate Professor in Production Engineering for the year 2012-2013, the existing Adhoc Rules issued in G.O.(Ms) No.1533, Education and Public Health Department, dated 10.09.1964 has been followed as per the para 2(ii) (viii) of G.O.(Ms) No.368, Personnel and Administrative Reforms Department dated 18.10.1993.
8. It is submitted that as per G.O.(Ms) No.1533, Education and Public Health Department, dated 10.09.1964 among others a Doctorate Degree or a Master's Degree with the experience for a period of not less than five years after obtaining a Post Graduate Degree is mandatory for the post of Associate Professor. Accordingly, while preparing panel for the year 2012-13, only the fourth respondent, who is the immediate junior to the petitioner, 10 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 has completed the requisite qualification and experience (ie., with five years experience after obtaining the M.E.Degree) for the post of Associate Professor as on 01.03.2012 (i.e., the crucial date for the panel year 2012-13). But, the petitioner neither have completed Ph.D., Degree nor have completed five years of experience after obtaining Master's Degree on the crucial date ie., 01.03.2012. Since the petitioner has completed his M.E., Degree on July 2007, he has completed only 4 years and 8 months. Hence, the name of the fourth respondent has been included in the panel for the year 2012-13 and he has been promoted as Associate Professor vide G.O.(Ms) No.90, Higher Education (11) Department dated 30.05.2013. Accordingly, the fourth respondent has joined in the said post on 12.06.2013. It is also submitted that before fixing the pay of the fourth respondent in the post of Associate Professor, the Principal Accountant General sought clarification from the respondent on the eligibility criteria followed while promoting the fourth respondent as Associate Professor, since he did not possess Ph.D.Degree, which is essential qualification for the post of Associate Professor as per G.O.(Ms) No.95 dated 05.05.2010. After knowing the above said rules, the Principal Accountant General has fixed the pay of the fourth respondent in the post of Associate Professor.”
19. Therefore, the submission of the learned Additional Government Pleader is that, though the AICTE came forward to make amendments in their Regulations in the year 2010 itself making the compulsory educational qualification of U.G.Degree in Engineering discipline as well as P.G.Degree in the 11 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 relevant branch with first class or equivalent and also minimum of five years experience in teaching / research / industry of which 2 years post Ph.D. experience is desirable. Adopting the said regulations of the AICTE in the year 2010 in which amendments seems to have been made by the State Government in the Adhoc Rules and therefore what was the qualification prescribed under the G.O.Ms.No.1533 in the year 1964 was prevailing for all along including in the year 2012 when the promotion of the fourth respondent was considered by taking 01.03.2012 as the crucial date.
20. Learned Additional Government Pleader would further submit that, only in the year 2017 by G.O.Ms.No.78 dated 20.04.2017, amendment has been made in the Adhoc Rules, under which the following amendment has been provided.
AMENDMENTS In the said Rules,
1) For the expression 'Assistant Professor' wherever it occurs, the expression 'Associate Professor' shall be substituted.
2) In rule 3(i), for the expression “Lecturers”, the expression 'Assistant Professors' shall be substituted.
3) In Rule 5, for item (i), (ii) and (iii), the following shall be substituted, namely:-
(i) (a) B.E / B.Tech and M.E / M.Tech in relevant branch with first 12 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 class or equivalent either in B.E./ B.Tech or M.E / M.Tech and Ph.D or equivalent, in appropriate discipline;
(b) Post Ph.D. Publications and guiding Ph.D. Students is highly desirable; and
(ii) Minimum of five years experience in teaching / research / industry experience of which TWO years post Ph.D experience is desirable.
(iii) In case of Architecture, Professional practice of 5 years as certified by the Council of Architecture shall be considered valid.”
21. Therefore, the learned Additional Government Pleader would contend that, since the amendment to the Adhoc Rules has been made only in the year 2017 before or well before which promotion was given in the year 2012-13 to the fourth respondent and subsequently promotion was given to the petitioner to the post of Associate Professor. Therefore, what has been done years back prior to the amendment made to the Rule cannot be unsettled now, as the said promotions have been given to these two people some years back, prior to the amendments made in the Rules. Therefore, such settled position cannot be unsettled now. By making these submissions, the learned Additional Government Pleader submitted that the promotion given to the fourth respondent cannot be questioned by the petitioner for the aforesaid reasons and hence the subsequent promotion given to the petitioner in the year 2015-16 since has been accepted by the petitioner he cannot turn around now and say that he had been given 13 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 promotion belatedly than the fourth respondent and accordingly the contention raised by the petitioner's side cannot be accepted. Therefore, the learned Additional Government Pleader seeks dismissal of this writ petition.
22. Now the controversy is in a very narrow compass. In this case, there is no quarrel that the first promotion was considered only by taking the crucial date as 01.03.2012 for the panel year 2012-13. On that date, the prevailing qualification even according to G.O.Ms.No.1533 was that the incumbent must have UG and PG Degree in the relevant branch with first class in appropriate discipline, Post Ph.D publications and guiding Ph.D Students is highly desirable and minimum of five years experience in teaching, research, industry experience of which two years post Ph.D experience is desirable.
23. Based on these qualifications, the promotion was given to the fourth respondent, but such promotion was denied to the petitioner for the year 2012-
13. But, the fact remains that in 2010 itself, AICTE which was established by the Parliament Act called All India Council for Technical Education Act, 1985 to have an uniform standard of technical education throughout the country.
24. Very many number of judgments have come recognizing the supremacy of the AICTE insofar as the technical education is concerned and in 14 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 this regard what was the minimum eligibility criteria for the academic people who are employed in the technical education institutions covered under the AICTE has been prescribed / framed by the AICTE.
25. In this context, the AICTE Regulations, 2010 was issued on 22.01.2010 which has made it clear that, apart from B.E. Or M.E., Degree in the relevant branch, the persons must also have Ph.D. or equivalent degree in appropriate discipline. Therefore, originally it might have been a desirable qualification to hold Ph.D. However, from 2010 onwards as per AICTE it has become mandatory or essential qualification for any incumbent to seek promotion for the post of Associate Professor to hold Ph.D qualification.
26. That apart, realizing or sensing the same that the apex body like the AICTE has prescribed academic qualification for the post of Assistant Professor or Associate Professor as the case may be to hold the post as such in Engineering or Technical Institutions covered under the AICTE, the State Government thought it fit to make necessary amendments in the Adhoc Rules, which were prevailing from 1964 as per G.O.Ms.No.1533 dated 10.09.1964.
27. Accordingly, G.O.Ms.No.78, Higher Education Department was issued on 20.04.2017 under which necessary amendments subsuming the regulations of 15 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 AICTE by prescribing the qualification for those to hold the post of Associate Professor has been made, under which Ph.D. Degree also became an essential qualification to hold the post of Associate Professor.
28. In this context, even though it was argued by the learned Additional Government Pleader that, this amendment has been made only in the year 2017 ie., by Government order dated 20.04.2017 in G.O.Ms.No.78, it is to be noted that in Para 2 of the said Government Order, it has been made clear with the following words “the amendment hereby made shall be deemed to have been come into force with effect from 05.05.2010”.
29. Therefore, it is a retrospective amendment with effect from 05.05.2010 because the AICTE Regulations dated 22.01.2010 had already been issued. Therefore, in tune with the AICTE Regulations necessary amendment has been given effect to w.e.f. 05.05.2010. Therefore, for all practical purposes, it shall be deemed that the amendment made by G.O.Ms.No.78 dated 20.04.2017 has come into effect from 05.05.2010.
30. If that being so, promotions to both the fourth respondent as well as the petitioner has been given only subsequent to the amendment made or subsequent to the effect of the amendment made in the Adhoc Rules as the 16 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 crucial date was 01.03.2012 for the year 2012-13 in which promotion was given to the fourth respondent. Therefore, if at all any wrong promotion was given without taking into account of the AICTE Regulations, which has been subsequently taken note of by amendment made in G.O.Ms.No.78 as referred to above, correction should have been made by the respondent by giving such promotion only from the date on which the incumbent who had already been promoted acquires the qualification of Ph.D.
31. In this context, the factual matrix is that the fourth respondent completed the Ph.D. Degree only on 22.08.2015. Therefore, from that date only he became eligible to hold the post of Associate Professor as per the AICTE 2010 Regulations as well as the Adhoc Rules, since the same has been amended with effect from 05.05.2010.
32. Whereas, the petitioner completed Ph.D Degree as early as on 19.11.2013. Therefore, from that date he became eligible to hold the post of Associate Professor. However, promotion was given to the petitioner only in the year 2015-16, whereas such promotion was given to the fourth respondent in the year 2012-13 itself. Therefore, the respondents necessarily has to rectify this anomaly in fixing seniority inter se between the petitioner and the fourth respondent, and accordingly that anomaly should have been rectified by the 17 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 respondents when such a request was made by the petitioner through his representations referred to above. Unfortunately, that action has since not been taken by the respondents, the petitioner of course rightly approached this Court by filing the present writ petition seeking for the aforesaid relief.
33. Considering the aforesaid factual matrix as well as the legal position, ie., the Rule position, which was prevailing as on the crucial date ie., 01.03.2012 both under the AICTE Regulations as well as the amended Adhoc Rules, the eligibility to hold the post of Associate Professor since has been prescribed as that, one must have Ph.D Degree and such qualification was acquired by the fourth respondent only on 22.08.2015, whereas the petitioner acquired the said qualification on 19.11.2013, no doubt the petitioner shall be considered to be senior than the fourth respondent. Accordingly, corrective orders fixing the seniority of both the persons shall be made by the respondents.
34. In that view of the matter, this Court is inclined to dispose of this writ petition with the following order.
● That there shall be a direction to the respondents to pass necessary orders fixing the seniority inter se between the petitioner and the fourth respondent, where the petitioner would be entitled to hold the post of Associate Professor 18 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 with effect from 19.11.2013, the date on which he acquired the qualification whereas the fourth respondent became qualified to hold the post only on 22.08.2015, the date on which he acquired the qualification of Ph.D.Degree. ● Nevertheless, since the promotion had been given to the fourth respondent in the year 2012-13 and to the petitioner only in the year 2015-16, from the said post or promotion, if any financial benefits acquired by both the persons, that need not be disturbed. But at the same time, the inter se seniority based on the above shall be recognized.
● Accordingly, the petitioner shall be placed above the fourth respondent in the category of Associate Professor which would be seniority for the purpose of all future promotions and other benefits. Accordingly, such notional promotion shall be given to the petitioner with effect from 19.11.2013 or if the seniority has to be reckoned for which the petitioner shall be placed above the petitioner, such a notional promotion can also be given to the petitioner one day prior to the promotion given to the fourth respondent notionally and accordingly for re-fixing the seniority between them, necessary orders shall be passed by the respondents. ● The needful as indicated above shall be completed within a period of eight weeks from the date of receipt of a copy of this order.
19 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 ● It is made clear that till such time no further service benefits like promotion be made in respect of the post of Professor, wherein the petitioner as well as the fourth respondent are likely to be considered.
35. With the above directions, this writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
14.06.2022 Index : Yes Internet : Yes KST To
1.The Principal Secretary to Government Fort St.George, Chennai 600 009.
2.The Commissioner, Directorate of Technical Education No.53, Sardar Patel Road, Guindy, Chennai 600 025.
3.The Principal, Government College of Technology Thadagam Road, Near Tamil Nadu Agricultural University Coimbatore – 641 013.
4.Mr.Srinivasamurthy, Associate Professor Department of Production Engineering Government College of Technology Thadagam Road, Near Tamil Nadu Agricultural University, Coimbatore-641 013.
20 / 21 https://www.mhc.tn.gov.in/judis W.P.No.10716 of 2018 R. SURESH KUMAR, J.
KST W.P.No. 10716 of 2018 14.06.2022 21 / 21 https://www.mhc.tn.gov.in/judis