Madras High Court
Maya Manikandan vs State Of Tamil Nadu on 4 March, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2013 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.2546 of 2013 and M.P.No.1 of 2013 Maya Manikandan .. Petitioner Vs. 1.State of Tamil Nadu, rep by the Secretary to Government, Department of Law, Fort St. George, Chennai-600 009. 2.The Director of Legal Studies, Purasawalkam High Road, Chennai-600 010. 3.The Registrar, The Tamil Nadu Dr.Ambedkar Law University, Dr.D.G.S.Dinakaran Salai, Chennai-600 028. 4.The Secretary, Bar Council of India, Rose Avenue, New Delhi. 5.The Secretary, Bar Council of Tamil Nadu, Madras High Court Buildings, Chennai-600 104. 6.The Secretary, University Grants Commission, Bhadur Shar Zafar Marg, New Delhi-110 002. 7.S.Narayana Perumal, The Principal, Dr.Ambedkar Law College, Chennai-600 104. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of quo warranto directing the 7th respondent to show cause by what authority he claims to hold the post of the Principal, Dr.Ambedkar Law College, Chennai and consequently remove the 7th respondent from the post. For Petitioner : Mr.C.K.M.Appaji For Respondents : Mr.V.Subbiah, Spl.G.P. For RR1 and 2 Mr.T.D.Vasu for R-3 Mr.S.R.Rajagopal for R-4 Mr.S.Y.Masood for R-5 Mr.P.R.Gopinathan for R-6 Mr.A.Thiagarajan, SC for M/s.S.Rameshkumar for R-7 - - - - ORDER
The petitioner claiming to be a practicing Advocate at Virudhachalam, has filed the present writ petition seeking for the issuance of writ of quo warranto asking the 7th respondent to show cause as to what authority he is holding the post of the Principal, Dr.Ambedkar Law College, Chennai.
2.When the matter came up on 01.02.2013, this court directed the learned Special Government Pleader to get instructions from respondents 1 and 2 and in respect of others, private notice was directed to be served. Accordingly, notices have been served. On behalf of the first respondent State, a counter affidavit, dated Nil (February, 2013) has been filed. The said affidavit was also filed on behalf of the second respondent. The 7th respondent has also independently filed a counter affidavit, dated 22.02.2013.
3.Heard the arguments of Mr.C.K.M.Appaji, learned counsel for the petitioner, Mr.V.Subbiah, learned Special Government Pleader appearing for respondents 1 and 2, Mr.T.D.Vasu, learned counsel for the third respondent Tamil Nadu Dr.Ambedkar Law University, Mr.S.R.Rajagopal, learned counsel for the 4th respondent Bar Council of India, Mr.S.Y.Masood, learned counsel for the 5th respondent, Bar Council of Tamil Nadu, Mr.P.R.Gopinathan, learned counsel for the 6th respondent University Grants Commission and Mr.A.Thiagarajan, learned Senior counsel leading Mr.S.Rameshkumar, learned counsel for the 7th respondent.
4.The substance of the allegation made by the petitioner was that the 7th respondent was appointed as a Lecturer in Law (Senior Grade) on contract basis in the Government Law College during the year 1988-1990. His service was regularised by G.O.Ms.No.9, Law Department, dated 18.01.2001 with effect from 26.03.1993. He was promoted as an Associate Professor (Law) by G.O.Ms.No.90, dated 14.05.2008 with effect from 25.3.1998. By G.O.Ms.No.241, Law Department, dated 17.6.2011, the 7th respondent was promoted as Principal of the Government Law College at Madurai. At present, he is working as the Principal of Dr.Ambedkar Government Law College, Chennai. The 7th respondent had not fulfilled the eligibility criteria prescribed by the University Grants Commission to hold the post of the Principal of the Law College. He has no requisite teaching experience and has no qualified marks in P.G. level. He was also not possessing Ph.D at the time of his promotion as the Principal of the Law college. Suspecting his lack of qualification, the petitioner made an enquiry by resorting to the provisions under the Right to Information Act. The petitioner was informed that the 7th respondent did not possess Ph.D on the date of his promotion, i.e., 17.06.2011. He had only secured 52.88 % of marks in the M.L. Degree and had worked only for 12 years as Associate Professor as against the minimum experience of 15 years prescribed by the UGC. Therefore, he was usurped to the post and was not eligible to hold the post of the Principal.
5.In the counter affidavit filed by the first and second respondents, these allegations were refuted. It was stated by the first respondent that the petitioner was initially appointed as a Junior Professor, now redesignated as Lecturer (Senior Scale) on contract basis. Thereafter, his services were regularized with effect from 26.3.1993. The 7th respondent was sanctioned Career Advancement as Lecturer (Selection Grade) with effect from 25.3.1998. He was promoted as the Principal by G.O.Ms.No.241, dated 17.6.2011 and posted to the Government Law College, Madurai. He joined as the Principal of the Government Law College, Madurai on 30.6.2011. Subsequently, he was transferred to Dr.Ambedkar Government Law College, Chennai and joined as the Principal of the said Law college on 11.4.2012. Adhoc rules for the post of the Principal of the Government Law Colleges were issued by G.O.Ms.No.2043, Education, Science and Technology Department, dated 22.10.1983. As per the said adhoc rules, the post of the Principal can be made by promotion from category 1 or class II (Profesors) of the said service. If no qualified and suitable candidate is available for appointment, then it was made by direct recruitment.
6.As per the said adhoc rules, a person who was eligible for promotion should have obtained either first or a second class ML Degree, provided that in the case of candidates possessing the second class ML degree, they should have obtained not less than 50% of marks in the ML degree examination. It was further provided that the possession of 50% of marks was not insisted in the case of persons holding the post of Professor on regular basis on 31.3.1981. It was further stated that if no suitable candidates even with second class degree are available for promotion, then the candidates who have obtained ML degree with a pass class shall be considered. The person must have experience as Professor in the Law college for a period of not less then three years. The adhoc rules were amended in relation to promotion to the post of the Principal by providing that it can be done by promotion from the categories of Lecturer (Selection Grade) and Lecturer (Selection Grade) of the Pre-law courses in a single common seniority list. The requirement of 55 % of marks in the M.L. degree was reduced to 50% in case of SC and ST. It was further stated that if a person holds Ph.D degree in Law and passed M.L. degree examination prior to 19.09.1991 can have 50% of marks in the M.L. Degree. The holders of the posts of Lecturer (Selection Grade) on 24.03.1999 shall possess not less than 50% of marks in the M.L. Degree and the experience required by the Lecturer (Selection Grade) was for a period of not less than 3 years.
7.It was further stated that one Balaji Naidu who was promoted as Principal in the same G.O.Ms.No.241, Law Department, dated 17.6.2011 along with the 7th respondent was initially holding the post of Principal of Dr.Ambedkar Government Law College, Chennai. But this court by its order dated 23.2.2012 set aside the promotion of Balaji Naidu on the ground that he did not possess the qualification prescribed by the UGC which was adopted by the Tamil Nadu Dr.Ambedkar Law University and accepted by the Bar Council of India in the rules relating to the Legal Education, 2008. In compliance of the said order, the said Balaji Naidu ws reverted from the post of Principal. Subsequently, another writ petition was also filed challenging the promotion of one Pitchai as Principal of the Government Law College, Chengalpattu and that his appointment was set aside by the order of this court. But insofar as the 7th respondent was concerned, he was having Ph.D degree and therefore, his having 50% of marks in the M.L degree is sufficient. Similarly, the 7th respondent also possessed qualification prescribed for the post of Principal under the UGC Regulations, 2010. He has got 24 years of teaching experience. Under the UGC Regulations, 2010, an Associate Professor with total teaching experience of 15 years is eligible for promotion as Principal. The 7th respondent had also submitted his Ph.D. Thesis before assuming charge as Principal. He had appeared in the public viva-voce examination for Ph.D. Degree on 28.02.2012. Based on the recommendation of the Board of Examiners, who conducted the public viva-voce examination, the Registrar of the Tamil Nadu Dr.Ambedkar Law University had issued a notification on 13.3.2012 declaring that the 7th respondent was qualified for Ph.D. Degree in Law. Therefore, on the date when he assumed charge, i.e., on 11.4.2012, the 7th respondent was having Ph.D. Degree in law. Similar stand was taken by the 7th respondent in his counter affidavit.
8.Mr.C.K.M.Appaji, learned counsel appearing for the petitioner placed reliance upon a judgment of this court in D.Ganesan Vs. State of Tamil Nadu reported in 2012 (2) CTC 177, wherein appointment of Balaji Naidu was under challenge. He also referred to a judgment of the Supreme Court in Ashok Kumar Sharma and others Vs. Chander Shekhar and another reported in (1997) 4 SCC 18 and contended that eligibility of candidate will have to be judged with reference to the date of notification. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all.
9.Realizing the weakness of his case, Mr.C.K.M.Appaji had stated that promotion of the 7th respondent as the Principal of the Madurai Government Law College by G.O.Ms.No.241, Law Department, dated 17.6.2011 itself was illegal as on that date the UGC Regulations have come into force. Admittedly, the 7th respondent did not have Ph.D degree on the said date. Even as per the counter filed by the respondent State, the viva-voce examination was held on 28.02.2012. Therefore, his promotion as the Madurai Government Law college and thereafter transferring him to Chennai as the Principal cannot be accepted.
10.In the present case, this court is not concerned with the initial appointment of the 7th respondent as the Principal and whether on that date, he had the qualification to hold the post of Principal or not. In fact, the petitioner claiming to be the Practicing Lawyer has given correctly the career graph of the 7th respondent, in which case if he is aware of the shortfall, he ought to have challenged the same at the time when the 7th respondent was promoted as the Principal of the Madurai Government Law College. Even at that time, he was promoted only in terms of the adhoc rules framed by the State Government under Article 309 of the Constitution. That rule is not under challenge either at that time or presently. In the present case, the petitioner is only a practicing Advocate and not a contender for the post held by the 7th respondent. The present writ petition is not a writ in the nature of certiorari, but definitely one of quo warranto.
11.In such circumstances, what the court should do came to be considered by the Supreme Court in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat reported in (2003) 4 SCC 712 and the concurring opinion given by S.B.Sinha, J., in paragraphs 21 to 23 reads as follows :
"S.B. SINHA, J. (concurring) Although I agree with the conclusions arrived at by my learned Brother, having regard to the importance of the question involved, I would like to assign additional reasons therefor.
22.The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India3, SCC para 74.)
23.A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana4.)"
12.Similarly, the Supreme Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Assn., reported in (2006) 11 SCC 731 (2) in paragraph 51 held as follows :
"51.It is settled law by a catena of decisions that the court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India12 was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered......"
13.In this case, the court is satisfied that the 7th respondent is not suffering from any lack of qualification and that the allegations made to the contrary are hereby rejected. There is yet another ground under which the petitioner can be denied relief is delay in coming to this court. When series of writ petitions were filed challenging the promotion given by G.O.Ms.No.241, Law Department, dated 17.6.2011 for several Principals of Law colleges, the petitioner has not chosen to challenge the 7th respondent's promotion as the Principal of the Government Law College, Madurai. He has now come forward only to challenge the present posting, which was done by way of transfer. Therefore, the petitioner is seriously guilty of delay in wreaking up the issue which was already two years old.
14.As to whether on the ground of delay, the relief in the nature of quo warranto can be denied came to be considered by the Supreme Court in Royal Orchid Hotels Limited v. G. Jayarama Reddy reported in (2011) 10 SCC 608 and in paragraph 25, the Supreme Court had observed as follows :
"25.Although the Framers of the Constitution have not prescribed any period of limitation for filing a petition under Article 226 of the Constitution of India and the power conferred upon the High Court to issue to any person or authority including any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari is not hedged with any condition or constraint, in the last 61 years the superior courts have evolved several rules of self-imposed restraint including the one that the High Court may not enquire into belated or stale claim and deny relief to the petitioner if he is found guilty of laches. The principle underlying this rule is that the one who is not vigilant and does not seek intervention of the Court within reasonable time from the date of accrual of cause of action or alleged violation of the constitutional, legal or other right is not entitled to relief under Article 226 of the Constitution. Another reason for the High Courts refusal to entertain belated claim is that during the intervening period rights of third parties may have crystallised and it will be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and there is no cogent explanation for the delay. We may hasten to add that no hard-and-fast rule can be laid down and no straightjacket formula can be evolved for deciding the question of delay/laches and each case has to be decided on its own facts."
15.In this case, the petitioner has not given any reason as to why he never chosen to challenge the promotion of the 7th respondent as the Principal of the Government Law College, Madurai. Even otherwise, at the relevant time, the adhoc rule provided for promotion with the qualification held by the 7th respondent. Therefore, at this stage this court is not inclined to go behind the appointment of the 7th respondent. The present contention that the 7th respondent is lacking in qualification to hold the post of the Principal is clearly misconceived and cannot be countenanced by this court. Hence the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.
vvk To
1.The Secretary to Government, State of Tamil Nadu, Department of Law, Fort St. George, Chennai-600 009.
2.The Director of Legal Studies, Purasawalkam High Road, Chennai-600 010.
3.The Registrar, The Tamil Nadu Dr.Ambedkar Law University, Dr.D.G.S.Dinakaran Salai, Chennai-600 028.
4.The Secretary, Bar Council of India, Rose Avenue, New Delhi.
5.The Secretary, Bar Council of Tamil Nadu, Madras High Court Buildings, Chennai-600 104.
6.The Secretary, University Grants Commission, Bhadur Shar Zafar Marg, New Delhi 110 002