Madras High Court
Mrs. Jeevarathinam vs Government Of Tamil Nadu on 22 July, 2008
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 22..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 3028, 3401, 4044, 4795 and 8723 of 2007 and M.P. Nos. 1 to 3 and 6 of 2007 in W.P. No. 3028 of 2007, M.P. No. 1 of 2007 in W.P. No. 3401 of 2007, M.P. Nos. 1 and 2 of 2007 in W.P. No. 4044 of 2007, M.P. No. 2 of 2007 in W.P. No. 4795 of 2007 and M.P. No.1 of 2007 in W.P. No.8723 of 2007 W.P. No. 3028 of 2007:- Mrs. Jeevarathinam .. Petitioner vs. 1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George, Chennai 2. The Secretary to Government P&AR Department Government of Tamil Nadu Fort St. George Chennai 3. Teachers Recruitment Board Government of Tamil Nadu Rep.by its Chairman E.V.K. Sampath Maligai DPI Compound College Road, Chennai 4. Sakthivel 5. Manjula 6. Bhuvaneshwari 7. Thagaramani 8. Gowriramesh 9. R. Kokila 10. K.Latha 11. N. Ramapiran Ranhjithsingh .. Respondents (RR 10 and 11 impleaded vide order dated 11.4.2007 in M.P. Nos. 4 and 5 of 2007) Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to the advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 called for direct recruitment of Lecturers (Senior Scale) for Government Law Colleges (2006-07), prospectus and the consequential order of the third respondent vide Rc.No. 2630/B6/2006 dated 09.01.2007 and quash the same and direct the respondents to reissue the advertisement and prospectus in accordance with law. W.P. No. 3401 of 2007:- S.Murugesan .. Petitioner vs. 1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai 2. The Secretary to Government P&AR Department Government of Tamil Nadu Fort St. George Chennai 3. Teachers Recruitment Board Government of Tamil Nadu Rep.by its Chairman E.V.K. Sampath Maligai DPI Compound College Road Chennai 4. Bhuvaneshwari 5. Jayashree 6. R. Kalpana 7. S. Duga Lakshmi .. Respondents (R 7 impleaded vide order dated 11.3.2008 in M.P. No. 1 of 2008) Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Mandamus forbearing the respondents 1 to 3 from in any way selecting or appointing the respondents 4 to 6 for the post of Lecturers (Senior Scale) to the faculty and the recruitment on the basis of faculty for Government Law Colleges pursuant to the advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 and consequently direct the respondents 1 to 3 to select and appoint the petitioner as Lecturer (Senior Scale) in the Government Law Colleges. W.P. No. 4044 of 2007:- D. Kannan .. Petitioner vs. 1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai 2. The Chairman Teachers Recruitment Board E.V.K. Sampath Maligai DPI Compound College Road Chennai 3. The Member Secretary Teachers Recruitment Board E.V.K. Sampath Maligai DPI Compound College Road Chennai 4. D. Bhuvaneshwari 5. P. Sakthivel 6. S. Manjula 7. K.Latha 8. N. Ramapiran Ranhjithsingh .. Respondents (RR 7 and 8 impleaded vide order dated 11.4.2007 in M.P. Nos. 3 and 4 of 2007) Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to the advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 called for direct recruitment of Lecturers (Senior Scale) for Government Law Colleges (2006-07), prospectus and quash the selection by the Teachers Recruitment Board and direct the Teaches Recruitment Board to implement UGC noms and G.O. Ms. No. 105 dated 20.6.2000 by recalling of the fresh advertisement for direct recruitment for Lecturers (senior scale) for Govt. Law College (2006-2007). W.P. No. 4795 of 2007:- D. Purushothaman .. Petitioner vs. 1. Teachers Recruitment Board Government of Tamil Nadu Rep.by its Chairman E.V.K. Sampath Maligai DPI Compound College Road Chennai 2. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai 3. K.Latha 4. N. Ramapiran Ranhjithsingh .. Respondents (RR 4 and 5 impleaded vide order dated 11.4.2007 in M.P. Nos. 3 and 4 of 2007) Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records pertaining to the impugned notification issued by the first respondent in Advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 published in the New Indian Express and quash the same and direct the respondents to follow the qualification prescribed by the University Grants Commission as educational qualification for filling up the post of Lecturer in the Government Law Colleges. W.P. No. 8723 of 2007:- D. Binu mole .. Petitioner vs. 1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai 2. The Chairman Teachers Recruitment Board E.V.K. Sampath Maligai DPI Compound College Road Chennai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to the advertisement dated 09.12.2006 vide Advt. No. 5/2006-07 called for direct recruitment of Lecturers (Senior Scale) for Government Law Colleges (2006-07), prospectus and quash the selection by the Teachers Recruitment Board and direct the Teaches Recruitment Board to implement UGC noms and G.O. Ms. No. 105 dated 20.6.2000 by recalling of the fresh advertisement for direct recruitment for Lecturers (senior scale) for Govt. Law College (2006-2007). For Petitioners : Mr. R. Shivakumar in W.P. Nos. 3028 and 3401 / 2007 For Official respondents : Mr. G. Sankaran, Spl. GP Assisted by Mrs. C.K. Vishnupriya, AGP For RR4 6 in : Mr. L. Chandrakumar W.P. Nos. 3028 & 4044 of 2007 For R7 in W.P. No. 3401 of 2007 For RR 10 & 11 : Mr. AR.L. Sundaresan, SC in W.P. No. 3028/2007, for M/s AL. Ganthimathi For RR7 & 8 in W.P. No. 4044 of 2007 & For RR3 & 4 in W.P. No. 4795 of 2007 For R6 : Mr. M. Sriram in W.P. No. 3401 of 2007 For Petitioners : Mr. K. Kumar, SC in W.P. Nos. 4044/2007 & for Mr. G. Muthukumar 8723 of 2007 For Petitioner : Ms. S.T.P. Kuilmozhi in W.P. Nos. 4795/2007 C O M M O N O R D E R
These matters were directed to be posted before this Court for final disposal by the orders of the Hon'ble Chief Justice dated 10.7.2008.
2. Heard the arguments of the learned counsel for the parties and perused the records.
3. The short question that arises for consideration in these writ petitions is whether the State of Tamil Nadu was correct in omitting to notify that the candidates who had applied for the post of Lecturer (Senior Scale) must have their Post Graduate Degree in the relevant subject.
4. The answer to this question will have a great bearing on the future legal education in the State of Tamil Nadu.
5. The Law Commission headed by the doyen of the Indian Bar Shri M.C. Setalvad in the report on "Reform of Judicial Administration" described the situation then prevailing as 'chaotic' and the law graduates churned out as 'half baked lawyers who do not know even the elements of law' and went on to describe them as 'drones' and 'parasites' let loose on society.
6. Speaking at the All India Conference of Lawyers on Legal Education and Training held at New Delhi on 18.11.1994, the then Chief Justice of India A.M. Ahmadi, after referring to the Report of the Law Commission, observed as follows:-
"If the standard of legal education in law schools is poor and if enrolment of such 'half-baked' untrained graduates is automatic, as is the position today, the burden has to be borne by the judiciary at all levels since they are, to use the expression of Shri Setalved, 'let loose' on the Judiciary. The unbecoming scenes which are witnessed in courts are largely on account of lack of proper training in law and ethical values and the desire to make a fast buck. The justice delivery system depends on the quality of the Bar and, therefore, the Judiciary is vitally interested in the improvement of legal education in the country. I am, therefore, of the opinion that the Bar, the Judiciary and the UGC must join hands to raise the standard of legal education in the country."
7. Even before the address made by the then Chief Justice, he was part of a committee of three Judges to submit a Report on Legal Education and Entry into Legal Profession. The said Committee was formed pursuant to the resolution of the Chief Justices' Conference held in December 1993. The Committee elicited opinion of the various Chief Justices. While responding to the questionnaire sent by the Committee, some Chief Justices from various High Courts pointed out that the standard of teaching had gone down and there are no proper libraries and the subjects prescribed in the syllabus were out-dated and that sometimes teachers were assigned subjects in which they had no knowledge of specialisation. [See Indian Bar Review Vol. XXII (4) 1995].
8. Subsequently, the Conference of the Law Secretaries and Law Ministers' working group on Legal Education was held in Bhubaneshwar during September 1995. The Law Ministers attending the conference expressed their concern and the deteriorating standards in legal education. They were of the opinion that successful strategy for improving legal education must take into account several elements listed out by them and one of the elements listed by them is found in their recommendations as Serial No. xv, which is follows:-
"Post-graduate courses in law should not be allowed to be taught either in morning / evening colleges or through correspondence courses. Such courses should not be allowed in institutions which did not have libraries that proposed latest books and periodicals in law and competent teachers and staff."
The proposals made by the Bhubaneshwar Conference came to be accepted by the Bar Council of India at its meeting held on 04.11.1995.
9. Lamenting on the existing state of legal education, the then Chairman of the Bar Council of India, in his introductory note to the Special Number on Legal Education of the Indian Bar Review, wrote as follows:-
"The Bar Council is now taking steps to weed out sub-standard institutions after identifying them either on the basis of inspection report or on receipt of authentic information about the poor quality of legal education imparted there. The Council has recently amended its rules with a view to improving the quality of legal education in the law colleges by specifying the total number of working hours, proportion of whole-time teachers, the qualifications of teachers, funds to be set apart for construction of building and improvement of library."
10. In this context, the University Grants Commission (UGC) revised the qualifications for the post of Lecturers including Law Lecturers by its direction dated 19.9.1991.
Lecturer
(a) Arts, Sciences, Social Sciences, Commerce, Education, Physical Education, Foreign Languages and Law:
Good academic record with at least 55% marks or an equivalent grade at Masters degree level in the relevant subject from an Indian university or an equivalent degree from a foreign university. Candidates besides fulfilling the above qualifications should have cleared the eligibility test for Lecturers conducted by UGC, CSIR or similar test accredited by the UGC.
11. Subsequently, the UGC issued the Regulations known as University Grants Commission (Minimum Qualifications required for the appointment and Career Advancement of teachers in Universities and institutions affiliated to it) Regulations, 2000 reiterated the same qualification and issued a fresh Notification dated 04.4.2000.
12. As to the binding nature of such a direction in relations to Law Colleges came to be considered by the Supreme Court in State of Maharashtra v. Shashikant S. Pujari [2006 (13) SCC 175]. In this regard, paragraphs 23 to 25 of the said judgment may be usefully extracted below:-
Para 23: "The question with regard to retrospective effect of the said resolution will have to be answered having regard to the fact situation obtaining herein. If prior to October 1991, the respondent was validly appointed, he could justifiably contend that the 1991 Regulations could not have been given a retrospective effect. With a view to examine the said question, we may notice the following provisions of the Act. Para 24: Section 14 of the Act reads as under:
14. Consequences of failure of universities to comply with recommendations of the Commission.If any university grants affiliation in respect of any course of study to any college referred to in sub-section (5) of Section 12-A in contravention of the provision of that sub-section or fails within a reasonable time to comply with any recommendation made by the Commission under Section 12 or Section 13, or contravenes the provisions of any rule made under clause (f) or clause (g) of sub-section (2) of Section 25, or of any regulation made under clause (e) or (f) or clause (g) of Section 26, the Commission, after taking into consideration the cause, if any, shown by the university or such failure or contravention, may withhold from the university the grants proposed to be made out of the fund of the Commission. Para 25: Section 26(1)(e) reads as under:
26. Power to make regulations.(1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder, * * *
(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the university having regard to the branch of education in which he is expected to give instructions; [Emphasis added]
13. Further, in a subsequent judgment, the Supreme Court in Veer Kunwar Singh University Ad hoc Teachers Association and others v. The Bihar State University (C.C.) Service Commission and others [2007 (4) Supreme 376] in paragraph 35 held as follows:-
Para 35: "Creation of sanctioned posts is a sine qua non for recruitment to the post of lecturers. Adherence to the statutory provisions therefor is imperative in character. No doubt the qualification for holding the post of lecturer has since been changed in terms of the ordinance promulgated in the year 1993, but then the same was done as per the directions of the University Grants Commission. The colleges whether constituent or recognized must have lecturers who are qualified to hold the post. Qualification to hold the post of lecturer is fixed by the University Grants Commission. A University can ignore the directions of the University Grants Commission in this behalf only at its own peril and risk of derecognition. Neither it is permissible for a University to contravene the directions of the University Grant Commission nor, in our opinion, is it permissible for a court of law to issue a direction contrary thereto...." [Emphasis added]
14. In the present case, the State of Tamil Nadu, which is running several Law Colleges in the State and which are affiliated to Tamil Nadu Dr. Ambedkar Law University had originally framed Special Rules under Article 309 of the Constitution and constituted a service known as the Tamil Nadu Legal Educational Service. The said service comprised of a Director of Legal Studies, Professors and Junior Professors. At that time, the Junior Professors were categorised as Category II and the qualification prescribed for the said post was an M.L. Degree of the Madras University or a Degree of equivalent standard. Neither any minimum marks nor subject specialisation had been mentioned therein.
15. Subsequently, when the UGC recommended pay scales for Colleges and University Teachers pursuant to the recommendations of Mehrotra committee, the State Government, after consulting all stake-holders including the Director of Legal Studies, issued G.O. Ms. No. 1785 Education Department dated 05.12.1988. In that G.O., when dealing with the Legal Studies Department, it reclassified the post of Junior Professor as Lecturer (Senior Scale) and in paragraph 4.10,it was indicated as under:-
"(x) The minimum qualification required for appointment to the posts of Lecturers will be those prescribed by the U.G.C. from to time. Generally, the minimum qualifications for appointment to the post of Lecturers in the scale of pay Rs.2,200-4,000 shall be Master's Degree in the relevant subject with at least 55 per cent marks or its equivalent grade and good academic record."
16. Thereafter, pursuant to the Rastogi Committee Report, the UGC further recommended revision of scales of pay and the same was accepted by the Government of India. The State Government accepting the said report, revised the scale of pay of the teachers working in the Government and aided colleges and issued G.O. Ms. No. 111, Higher Education Department dated 24.3.1999. Consequent on the said revision, the scale of pay of the Lecturer (Senior Scale) was revised as follows:-
S. No. Category Existing Scales of Pay Revised Scales of Pay 1 Lecturer 3000-100-3500-125-5000 10000-325-15200
17. With reference to the recruitment of teachers and the qualifications, the said G.O. ordered as follows:-
"RECRUITMENT AND QUALIFICATIONS:-
Direct recruitment to the posts of Lecturers in Government Colleges shall be on the basis of merit through All India Advertisement and Selection by the duly constituted Selection Committee to be set up under statutes.
Explanation:-
For the above purpose, the duly constituted State Teachers Recruitment Board will be the agency to undertake the selection of candidates through prescribed procedures and to prepare a panel of candidates. At the time of recruitment, other things being equal, preference will be given to candidates who possess adequate knowledge in Tamil.
(i) The minimum qualification required for appointment to the posts of Lecturers will be those prescribed by the University Grants Commission from time to time. The educational qualification for the posts of Lecturers, Readers and Principals in colleges are given in Annexue II."
[Emphasis added]
18. However, taking advantage of the above order, even though the first portion mentioned in the Explanation about minimum qualification for appointment to the post of Lecturer was as prescribed by the UGC, the annexure II appended to the G.O. merely mentioned the minimum requirement for the post of Lecturer with a good academic record with 55% marks at the Master level and the possession of National Eligibility Test (NET). The Government framed Special Rules by G.O. Ms. No. 263 Law Department dated 20.12.2005. By the said G.O., the earlier Special Rule was amended and the post of Junior Professors was rechristened as Lecturer (Senior Scale) in tune with the UGC recommendations. Though the Government Order in G.O. Ms. No. 111 Higher Education Department dated 24.3.1999 dealt with in annexure II the qualification for the post of Lecturer and not for the post of Lecturer (Senior Scale), the Government, in the present G.O. Ms. No. 263 Law Department dated 20.12.2003 prescribed the qualification for the post of Lecturer (Senior Scale), a Master's Degree in Law with not less than 55% of marks with good academic record. They thought that there is a distinction between the G.O. Ms. No. 1785 Education Department dated 05.12.1988 wherein the relevant subject at the Post-Graduate level was referred to and in G.O. Ms. No. 111, Higher education dated 20.12.2003, the word 'relevant subject' was not found. In these two orders of the Government, there is no reference to the UGC directives issued on 04.4.2000 prescribing qualification for the post of Lecturers to be recruited in Law Colleges. This attempt by the State Government will not only result in watering down the stand and of legal education at higher level but also will be in direct conflict with the directives of the UGC.
19. Armed with this amendment to the Service Rules, the State Government notified the Teaches Recruitment Board [for short, 'TRB'] (third respondent herein), by a letter dated 18.8.2006 and directed them to take steps to recruit 16 posts of Lecturers (Senior Scale) in Government Colleges subject-wise. They were also directed to follow the communal roster issued by the State Government and also with reference to qualification to follow G.O. Ms. No. 263 Law Department dated 20.12.2005. In accordance with the requisition made by the State Government, the TRB notified the selection process in the newspapers by Advertisement No. 5/2006-07 dated 09.12.2006. The notification provided the estimated vacancies, which reads as follows:-
Sl. No. Sub Code Subject GT G W BC G W MBC G W SC G W ST G W Total G W All 1 H01 LABOUR AND ADMINISTRATIVE LAW 1 1 1 1 2 2 H02 LAW OF CONTRACTS 1 1 1 1 1 3 2 5 3 H03 PROPERTY LAW 1 1 1 1 3 1 4 4 H04 CRIME AND TORTS 1 1 1 1 1 4 1 5 Total 3 2 3 1 2 1 3 1 11 5 16 Abbreviation GT: General Turn BC: Backward Class MBC: Most Backward Class SC: Scheduled Caste ST: Scheduled Tribe W: Women
20. After advertising for the posts on subject-wise and also granting them subject code and in the Annexure to the application, the TRB also provided syllabus for the competitive examination for the recruitment of Lecturer (Senior Scale). In the application form, in column No. 1, the candidates were directed to fill up the subject code and also to indicate the subject for which the candidate had applied for.
21. Pursuant to the advertisement, 86 applications were received before the last date fixed by the TRB which was 29.12.2006. After scrutiny of applications, 31 persons were called for to write the written examination, which was held on 21.01.2007 (which was a Sunday) and the result for the written examination was published on Tuesday, ie., 23.01.2007. Out of the 31 candidates, who wrote the written examination, 22 candidates were called for the interviews, which were held from 13.02.2007 to 15.02.2007. While calling the candidates for the interview, the subjects under which the candidates had applied and wrote the written examination were not called for. In many cases, persons who got M.L. Degree in Constitutional Law were called for interview to the post of Lecturers in Labour Law and Administrative Law, Law of Contracts, Property Law and Crime and Torts. Finding that the petitioners were not called for the interview and also candidates who never applied for the particular post of Lecturer and who did not possess the P.G. Qualification in the relevant subject were called for the interview for such posts, the petitioners started moving this Court challenging the action of the TRB.
22. In W.P. No. 3401 of 2007, this Court granted an interim injunction for one week on 01.02.2007. Thereafter, after hearing both sides, by an order dated 12.02.2007, this Court passed the following order:-
"Though this Court had given sufficient time for the respondents to file counter affidavit, the same has not been filed and the learned Special Govt. Pleader seeks 3 days time to file counter in all the writ petitions. As the selection process has already commenced, and actual interview is scheduled to be held tomorrow (i.e., 13.2.2007) keeping the interest of the petitioners and also the candidates, who are called for interview, in mind, it is directed that the interview shall go on. But, the respondents shall not either finalise the names candidates selected or issue appointment orders without specific orders from this court."
23. In view of the above interim order, though the selection process was completed, but no appointment orders have been issued and in view of the urgency of the situation, the matters were directed to be posted for final disposal.
24. Before going into the main controversy with reference to the Service Rules and the consequent advertisement made being opposed to the UGC norms, two other issues were raised by the learned counsel for the petitioners and they will have to answered.
25. The petitioner in W.P. No. 4795 of 2007 (D.Purushothaman), having Ph.D. Qualification, contended that the prescription of passing the NET was unnecessary, should not be insisted upon.
26. In this context, it is necessary to refer to the judgment of the judgment of the Supreme Court in Brahmo Samaj Education Society and others v. State of West Bengal and others [2004 (6) SCC 224]. The following passage found in paragraph 7 of the judgment may be usefully reproduced:-
Para 7: ".... The State can very well provide the basic qualification for teachers. Under the University Grants Commission Act, 1956, the University Grants Commission (UGC) had laid down qualifications to a teaching post in a university by passing Regulations. As per these Regulations UGC conducts National Eligibility Test (NET) for determining teaching eligibility of candidates. UGC has also authorised accredited States to conduct State-Level Eligibility Test (SLET). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification for a teacher...." Hence, the contention raised that the requirement of NET / SLET should not be made mandatory should be rejected.
27. The petitioners in W.P. Nos. 4044 of 2007 and 8723 of 2007 raised another contention that the roster point prescribed for various posts is not proper and it should be rearranged.
28. In this context, it is necessary to refer to the counter affidavit dated 15.02.2007 wherein it was explained that the reservation was based upon the application of 100 point roster for all the 16 posts at one stretch and it was said to be in accordance with G.O. Ms. No. 105 P&AR Department dated 20.6.2000. The respondents having adhered to the communal roster and had following the 100 point roster, no exception can be taken by the petitioners. Hence, that contention also must fail.
29. This leaves out the contention that the State Government has power to prescribe a qualification in terms of the Service Rules framed under Article 309 of the Constitution and the said decision was taken in the interest of students. The following averments were made in pages 10 and 11 of the counter affidavit, which may be extracted below:-
".... As per the Special Rules applicable to the Tamil Nadu Legal Educational Service, the qualification required for the said post is the Master's Degree in Law. The Special Rule does not specify or require subject wise cadre in the Legal Educational Service except the class and category referred to present recruitment i.e., Lecturer (Senior Scale) (formerly known as Junior Professor and re-designated as Lecturer (Senior Scale) in G.O. Ms. No. 1735, Education Department dated 5.12.88). Therefore, what has not been provided in the Special Rules need not be applied and, therefore, for the convenient deployment of teachers in the required subjects as there was dearth of candidates, an adjustment in allocation of candidates was followed in the instant case in the interest of the students. Therefore, the petitioners cannot rightly demand that the candidates in the concerned subjects alone should be permitted to take examination for the relevant vacancies."
[Emphasis added]
30. On the strength of the averments made by the State, Mr. G. Sankaran, learned Special Government Pleader, made the following submissions:-
(a) The petitioners, having participated in the selection process, cannot challenge the very selection notification.
(b) The petitioners' attack against the notification is misconceived as it is based upon the Special Rules made for the service and it does not violate G.O. 111 Higher Education Department dated 24.3.1999.
(c) Alternatively, a submission was made that in the event of this Court considering the selection notification was contrary to UGC Regulations, then the existing selection having reached its finality need not be disturbed and the judgment must be made to take effect prospectively for future selections.
31. Mr. AR.L. Sundaresan, learned Senior Counsel appearing for some of the private respondents submitted that the term 'relevant subject' should be allowed to be defined by the University since many of the new Degrees are having modern nomenclatures. He cited an example of a student having M.L. Degree in Business Law should be allowed to apply for the post of Lecturer in Contracts.
32. Mr. L. Chandrakumar, learned counsel for some of the private respondents contended that even holding the worst against the official respondents, the petitioners cannot be allowed to challenge the selection as they had failed to qualify even to call for the interviews.
33. With regard to the contention that the petitioners cannot be allowed to challenge the selection notification, it must be stated that there cannot be estoppel against a statute. Even if any person is appointed contrary to the UGC norms / Regulations, such a person will be held to be an usurper to a public office. It has been held by the Supreme Court that any appointment in violation of the constitutional scheme of Article 14 will be wholly illegal and without jurisdiction. As found in the Veer Kunwar Singh University Adhoc Teachers' Association case (cited supra), a body ignoring the directions of the UGC will be doing only at its own peril and risk of de-recognition and the Courts should not give directions contrary to UGC Regulations.
34. Further, the State Government's stand that the Special Rules framed by them was in accordance with G.O. No. 111 Higher Education Department dated 24.3.1999 was erroneous. As can be seen from the extracted portion above, the Government itself had earlier directed the qualification prescribed by UGC from time to time to be adhered in the matter of selection of Lecturers. The said G.O. in annexure II only prescribes qualification for the post of Lecturers and not for Lecturers (Senior Scale). As per the said G.O., the Lecturer (Senior Scale) will be given to those Lecturers who have the requisite experience under the career advancement scheme. In fact, under the UGC Scheme, as accepted by the Government, there is no direct recruitment for the post of Lecturer (Senior Scale) and such status is given under the accelerated promotion after six yeas of service as a Lecturer. The State Government cannot divorce from the said G.O. the UGC Regulations dated 04.4.2000 and mutilate it by issuing a Special Rule omitting the words 'relevant subject in the Post-Graduate qualification' which is a must for any recruitment in Colleges. In fact, in the advertisement itself, posts were segregated on the basis of subject-wise Lecturership and examinations were conducted on the basis of the relevant subject to the post for which advertisements have been made. When even at the Senior Secondary School level, posts of P.G. Teachers are filled up on the basis of subject-wise, it is unthinkable that for the Post-Graduate level of Legal Education, irrespective of the subject, the teachers can be asked to teach Master's level without any specialisation. In paragraph 2 of the counter affidavit filed by the State, it is averred as follows:
".... These Lecturers who are sought to be recruited presently shall be deployed for handling classes for Master's degree in Law and also for the Bachelor degree...."
35. There is no averment in the counter affidavit filed by the State as to why the UGC Regulations dated 04.4.2000 was not adhered to. Even the Tamil Nadu Dr. Ambedkar Law University, to which the Government Law Colleges are affiliated, has been following the qualifications prescribed by the UGC for the post of Lecturers as can be found in the advertisement dated 10.11.2006 a copy of which is enclosed in the typed set.
36. The learned Special Government Pleader contended that Special Rules were framed under Article 309 of the Constitution and hence, it has got autonomy to prescribe the qualifications as noted above. In this context, it is necessary to refer to the judgment of the Supreme Court in Preeti Srivastava (Dr.) vs. State of M.P. [1999 (7) SCC 120] Para 36: "It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education...."
Para 52: "Mr Salve, learned counsel appearing for the Medical Council of India has, therefore, rightly submitted that under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of postgraduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed regulations which govern postgraduate medical education. These regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India for postgraduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List I."
[Emphasis added]
37. Very recently, a Division Bench of this Court vide its decision in Secretary, Kamaraj College, Tuticorin v. D.S. Arulmani and others [2008 (2) M.L.J. 593] dealt with the application of G.O. Ms. No. 111 Higher Education Department dated 24.3.1999 vis-a-vis the Private Colleges Act and held that a legislation made by the State cannot override the said G.O. and UGC Regulations are binding on the affiliated Colleges in the matter of selection to the posts of Lecturers.
38. In the light of the above, the argument of the learned Special Government Pleader must be necessarily rejected. The alternative prayer, viz., that the judgment of this Court must be made to have prospective effect cannot be accepted as under Article 226 of the Constitution, this Court lacks any such power to postpone the effect of its judgment. If a law made by the State is held to be unconstitutional, it is unconstitutional even from the day on which it is made. Therefore, such a request made on behalf of the State cannot be conceded.
39. The other argument made by the private respondents also does not merit consideration in the light of the legal precedents referred to above.
40. However, it is made clear that if there is any claim that the postgraduate degree obtained by a candidate is equivalent to the subject for which advertisement has been made and whether it was a relevant subject relating to the Post-Graduate Degree is a matter which the University, being an academic body, will have to decide such issues. The State can apply to the Law University before making advertisement and find out as to the degrees which have relevant subjects to the post for which is sought to be filled up and notify the same. This Court is not competent to pronounce on such matters.
41. Hence, the Notification in G.O. Ms. No. 263 Law Department dated 20.02.2005 prescribing the qualification for the post of Lecturer (Senior Scale) as well as the requisition dated 18.8.2006 made by the State to the TRB to recruit teachers with such qualifications are declared to be ultra vires to the UGC Regulations dated 04.4.2000 and unconstitutional and any consequential selections made will have no validity in the eye of law. The respondent State is directed to amend the Special Rules in accordance with the UGC Regulations and thereafter, request the TRB to recruit candidates for the post of Lecturers in accordance with law.
42. The State is well advised to see the reason behind the laws and not the shadows as its laws. Such distinction was beautifully brought out by Khalil Gibran in one of his poems which is worth quoting:-
"When two people stand in a sunlight With their backs to the Sun They see only their shadows, if Shadows are their laws, They see only law but never the reason behind the law ie., the Sun who is the reason behind the shadows."
43. In the light of the above, all the writ petitions are disposed of to the extent indicated above. However, there will be no order as to costs. Connected Miscellaneous Petitions will stand closed. 22..7..2008 Index : Yes Internet : Yes gri To
1. Government of Tamil Nadu Rep. by Secretary to Government Law Department Fort St. George Chennai
2. The Secretary to Government P&AR Department Government of Tamil Nadu Fort St. George Chennai
3. The Chairman Teachers Recruitment Board E.V.K. Sampath Maligai DPI Compound College Road Chennai K.CHANDRU, J.
gri Common Order in W.P. No. 3028 of 2007 Delivered on
22..7..2008