Madras High Court
Pondicherry University Teachers' ... vs Union Of India (Uoi), Rep. By Its ... on 28 March, 2002
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. These two writ petitions which were heard together, raise common questions of fact and law and are being disposed of by the present common judgment.
2. Pondicherry University has been established by the Pondicherry University Act, 1985 (hereinafter called the Act).
W.P.NO.22503 of 2001 has been filed by the Pondicherry University Teachers Association and connected writ petition has been filed by the Director of Centre from Pollution Control and Energy Technology under the Pondicherry University. In both the writ petitions, it has been prayed for restraining the respondents, particularly the Pondicherry University, the Vice Chancellor and the Registrar of the said University from convening and conducting the Executive Council meeting scheduled to be held on 20.11.2001 and for quashing the proceedings PU/07-EC/2001/169 dated 2.11.2001 and for a direction forbearing the respondents from conducting any other meeting of the Executive Council until the Executive Council is constituted in accordance with the provisions contained in the Act and the Statute.
3. Section 21(1) of the Act provides that the Executive Council shall be the principal executive body of the University.
Section 21(2) provides that the constitution of the Executive Council the term of office of its members and its powers and duties shall be prescribed by the Statutes.
Section 26(1) provides that the first Statutes are those set out in the Schedule.
Statute 11 as contained in the Schedule relates to constitution of the Executive Council and being relevant is extracted hereunder :-
"11. (1) The Executive Council shall consist of the following members, namely :-
(i) Vice-Chancellor;
(ii) One Director by rotation according to seniority to be nominated by the Vice-Chancellor;
(iii) Two Deans of schools by rotation according to seniority to be appointed by the Vice-Chancellor;
(iv) One Head of the Department of the University who is not a Dean, to be nominated by the Vice-Chancellor by rotation according to seniority;
(v) One professor, who is not a Dean or Head by rotation according to seniority to be appointed by the Vice-Chancellor;
(vi) One Reader who is not a Head by rotation according to seniority, to be appointed by the Vice-Chancellor;
(vii) One Lecturer, by totation according to seniority, to be appointed by the Vice-Chancellor;
(viii) Three persons from amongst the Principals/Directors of the Colleges/Institutions admitted to the privileges of the University to be nominated by the Vice-Chancellor by rotation;
(ix) Four persons of distinctions in academic and/or public life to be nominated by the Visitor. (2) All members of the Executive Council, other than the ex-officio members, shall hold office for a period of three years from the date of their nomination. (3) One-third of the total members of the Executive Counci shall form quorum for a meeting of the Executive Council."
4. It has been alleged that the Vice Chancellor has deliberately omitted to nominate persons, who are eligible to the Executive Council, and has illegally nominated other persons who are not eligible. It has been asserted that the Vice Chancellor has failed to nominate one Director and two Deans of Schools as contemplated under Statute 11(1),(ii) and (iii). It has been further asserted that nomination of one Head of the Department, one Professor, one Reader and one Lecturer as contemplated in Statute 11 (1`),(iv),(v), (vi) and (vii) respectively are illegal and contrary to the provisions contained in the statute.
5. The persons whose nominations are being challenged as illegal have been subsequently impleaded on the basis of their own applications. A counter affidavit has been filed on behalf of the respondents 2,3 and 4, namely the University and its Vice Chancellor and the Registrar. Subsequently the impleaded parties have adopted the counter affidavit filed on behalf of the University.
6. In the counter affidavit filed on behalf of the University, locus standi of the petitioner Association to maintain the writ petition has been challenged. The question relating to existence of alternative remedy has also been raised. Besides, the averments made in the writ petitions relating to alleged illegal nominations and failure to nominate have been combated.
7. So far as the question of locus standi in respect of the petitioner Association in W.P.NO.22503 of 2001 is concerned, materials are produced to indicate that it has been registered under the Societies Registration Act. As an association of the teachers, it is obvious that the petitioner in W.P.NO.22503 of 2001 is interested in proper management and the affairs of the University. As such it cannot be said that it is not having any locus standi to take up the question relating to alleged illegal constitution of the Executive Council. Moreover, the person who claims to have been illegally overlooked from being nominated as a member of the Executive Council has filed the connected W.P.NO.22504 OF 2001. In such view of the matter, the question relating to locus standi falls to the ground.
8. Coming to the other preliminary point relating to existence of alternative remedy, it is true that under Section 35 of the Act, the dispute regarding constitution of any University Authority can be referred to the Visitor. In the present case, it is not disputed that some representations had been made by some of the persons affected. However, the University has not referred the dispute to the decision of the Visitor and on the other hand it has indicated that the matter was pending before the High Court in the shape of the present writ petitions. Since the University itself has not referred the dispute to the Visitor on the ground that two writ petitions are pending, it does not lie in the mouth of the University to raise the question relating to alternative remedy. Moreover, since the question raised relate to interpretation of various provisions of the Act and the Statute and no disputed question of fact is involved, it would not be proper, after having entertained the writ petitions, to drive the petitioner away from the portals of this Court to pursue the alternative remedy elsewhere. The preliminary objection raised by the respondents is therefore not sustainable.
9. Now the deck is clear to consider the merits of the questions raised. However, before considering the above submission, it is necessary to notice some of the other relevant provisions in the Act and the Statute. Section 2(h) indicates that unless the context is otherwise required, the Director means any of the Director referred to in clauses (3), (4) and (5) of Section 11. Section 11(3),(4) and (5) contemplates that Director of Studies, Educational Information and Rural and Reconstitution, Director of Cultural Relations and Director of Physical Education Sports,National Service and Students welfare, shall be the officers of the University interalia. Similarly 11(6) contemplates Deans of Schools shall be the officials of the University. Section 2(r) provides " Teachers of the University mean, professors, readers, lecturers and such other persons as may be appointed for imparting instructions or conducting research in the University or in any college or institution maintained by the University and designated as teachers by the Ordinances." Section 2(g) contemplates "Department" means a Department of Studies and includes a Centre of Studies. Section 2(p) lays down" School means a School of study of University".
10. The first grievance of the petitioners relates to non-nomination of members as contemplated under Statute 11(1)(ii) and (iii) which have already been quoted. As per Statute 11(1)(ii), the Vice Chancellor is required to nominate one Director by rotation according to seniority. Similarly under 11(1)(iii), the Vice Chancellor is required to nominate two Deans by rotation according to seniority. It has been rightly submitted on behalf of the respondents that no such Director or Deans were available as the persons were occupying offices as either "in charge Director" or "in charge Deans", but not full fledged Director or full fledged Deans. In course of hearing of the writ petitions, however, it has been submitted on behalf of the respondents by the learned Advocate General that the Agenda relating too appointment of full fledged Director and full fledged Deans was included and names have been suggested, but the matter could not be finalised due to the interim order passed by this Court. On the basis of such submission, the interim order has been modified subsequently clarifying that it would be open to the concerned authority to take steps to fill up the post of Director and Deans. In view of the above, it is unnecessary to delve into the matter any further as it is expected that the University would be taking due and proper steps within a reasonable period.
11. The petitioners have contended that the persons nominated by the Vice Chancellor under the categories enumerated under Statute 11(iv) to (vii) were not eligible and the persons who were eligible being senior in the category indicated, have been illegally over-looked.
12. A bare reading of Statute 11 which has been extracted earlier makes it clear that the Vice Chancellor does not have any discretion in the matter relating to nominating persons under categories indicated in Statute 11(iv) to (vii). The Vice Chancellor is only to ensure that senior most available person in the category indicated is nominated by rotation. In other words, if a person is already nominated in a particular category, after the expiry of the term, he would not be eligible for re-nomination in the same category until all others in the same category are nominated by turn as the nomination is to be done by rotation according to seniority.
13. As already noticed, statute 11(iv) envisages nomination of one Head of Department according to seniority by rotation,. As per provision contained in a Professor or a Reader can be appointed as Head of Department. It has been asserted that so far as this category is concerned, the respondents have nominated Dr.E. Vijayan, Professor and Head of Department of Biological Science, who joined in the post on 3.10.1988. It has been submitted that Professor Abbassi, the petitioner in W.P.NO.22504 of 2001 has joined as Professor on 22.3.1987, admittedly senior to Professor Vijayan, should have been nominated instead of Professor Vijayan in the category relating to Head of Department.
In the counter affidavit it has been contended that Dr.S.A. Abbassi is functioning as Director of Centre for Pollution Control and Energy Technology, which is merely a centre functioning under the School of Ecology and being a smaller constitutent forming part of a Department cannot be considered as equivalent to the Head of the Department. It has been indicated that Department is a parent body and Head of Department cannot be equated to a Centre which is a body functioning under the Department.
14. The aforesaid stand taken in the counter and advocated rather ingenuously by the learned Advocate General does not hold water. Section 2(g) which has already been noticed, makes it clear that "Department includes a Centre of Studies". There is no dispute that Dr.S.A. Abbasi as the Director of the Centre for Pollution Control and Energy Technology is functioning as its Head. Since the Department includes Centre of Studies, the Head of the Centre of Studies must also be considered as Head of the Department. Nomination to the Executive Council as a Head is according to seniority and not according to importance of the Department. The reasons indicated by the respondents 2,3 and 4 in the counter for ignoring the question of nominating Dr.S.A. Abbasi are not at all acceptable.
15. The next challenge relates to the nomination of respondent No.6 in the category relating to Professor who is not a Dean or Head as contemplated in Statute 11(1)(v). It has been contended that in such category instead of nominating respondent No.6, Dr. M. Ramdass should have been nominated, as he is senior to respondent No.6.
16. In the counter affidavit, it has been indicated that Dr.M. Ramdass had once been nominated as Member of the Executive Council from 14.07.1989 to 13.07.1992 in his capacity as the Head of the Department and since the nomination is to be done on rotation according to seniority, he could not be considered for nomination again until the rotation is completed in full circle.
17. The aforesaid stand in the counter affidavit cannot be accepted. There is no requirement either in the Act or in the Statute that a person once nominated in a particular capacity cannot be nominated again in another capacity. A perusal of the Statute 11 makes it clear that the nomination is to be made in a particular category by rotation according to the seniority, obviously, in that category. If a person is nominated by virtue of his seniority in one category, in the absence of any stipulation that he cannot be nominated again in other capacity, such a person is to be nominated in any other category if the occasion so arises. It is true that Dr. M. Ramadass had been nominated in the category of Statute 11(1)(iv) as the Head of the Department, but that would not stand in a way of Dr. M. Ramadass being nominated in another category if he happens to be the senior most in another category when the occasion so arises. Therefore, if Dr. M. Ramadass, by virtue of his seniority as a Professor, is entitled to be nominated from the category of "Professor, who is not a Dean or Head", such nomination cannot be denied merely because he had been nominated earlier in some other capacity. The question for consideration is whether Dr. M. Ramadass had been nominated earlier in his capacity as Professor who is not a Head. The nomination of respondent No.6 therefore appears to be against Statute 11(1)(v).
18. The next contention relates to nomination of respondent No.7 in the category under Statute 11(1)(vi), namely, one Reader who is not a Head. In this context, it has been contended on behalf of the petitioner that Dr.K.A. Gunasekaran, who is a Reader, being senior to respondent No.7 should have been nominated. This submission is combated by the respondents by indicating that Dr. K.A. Gaunasekaran is presently functioning as Head In-charge of the School of Performing Arts and as such, he is ineligible to be nominated under category of Statute 11(1)(vi).
19. The learned counsel for the petitioner submitted that Dr. K.A. Gunasekaran is merely an In-charge Head and as such he could not be excluded from consideration under Statute 11(1)(vi). It is rather strange that the University is applying the policy of "Horses for the Courses". On one hand it is contended by the University that a Director In-charge or a Dean In-charge not being a full-fledged Director or Dean cannot be considered for nomination under Statute 11(1)(ii) and (iii) and yet it disqualifies a person for being nominated under Statute 11(1)(vi) as a Reader on the ground that such person is Head In-charge. The University seems oblivious of the axiom that what is sauce for goose should also be considered as sauce for the gander. If an "acting Director" or "acting Dean' is not eligible, it is not understood as to how a Reader would be ineligible to be considered in the category of Reader merely because he is an "acting Head".
20. A perusal of the provision of the Statute indicates that Head of the Department can be appointed by the appropriate authority for a period of three years and such person can be reappointed. However, neither the Act nor the Statute contemplates appointment of any Head In-charge or the acting Head. In contra distinction to the aforesaid, it is noticed that Section 2(m) of the Act itself provides that "Principal" includes where there is no Principal, the person for the time being duly appointed to act as Principal, and, in the absence of the Principal or Acting Principal, a Vice Principal duly appointed as such. However, there is no such corresponding provision relating to Director or Dean or Head of the Department. Therefore, non-consideration of Dr.K.A. Gunasekaran in the category of Reader merely because he is the Head In-charge, appears to be unjustified.
21. The next submission is relating to nomination under Statute 11(1)(vii), namely, Lecturer. It is contended by the petitioner that respondent No.8 who has been nominated is not the senior-most available Lecturer. It has been submitted that one Dr. S.S.Sundaravel. who had been earlier nominated for a part of the term from from 11.05.2000 to 30.10.2001 in the place of the previous incumbent, who had to relinquish the membership of the Council as a Lecturer on account of his being promoted as a Reader, should have been nominated for a further period of three years.
22. The respondents in the counter affidavit have indicated that since Dr.S.S.Sundaravel had already been nominated once, even though for a part of the term and not for a full term, he cannot be nominated again, as nomination has to be done by adopting the principle of rotation.
23. Section 37 of the Act contemplates that the person appointed, elected or co-opted to a casual vacancy shall be a member of such authority or body for the residue of the term for which the person whose place he fills would have been a member. In other words, a person is elected or nominated to fill up a casual vacancy does not hold the office for the normal full term, but for the residue period. Statute 11(2) contemplates all members of the Executive Council, other than the ex-officio members shall hold office for a period of three years from the date of their nomination. It is obvious that in view of the provision contained in section 37 of the Act, any member of the Executive Council who is nominated to fill up a casual vacancy cannot continue for full term of three years, but can continue only for the remainder of the term. However, a person who is nominated to fill up the casual vacancy cannot be held to be disqualified for being nominated for a normal term under Statute 11(1). In fact, it appears that on earlier occasion Dr. S.A. Abbasi who was nominated to the Executive Council for the remainder of the term on account of resignation of Professor Dr.S.B.Chapekar under the category of Professor, was again nominated to the Executive Council for a regular term of three years after having served for the remainder of the term of Dr.S.B. Chapekar. It has been contended by the University that it was open to Dr. S.S. Sundaravel to refuse the nomination against the casual vacancy. However, in view of the fact that the University had earlier re-nominated such person who had already held a part of the term by filling up of a casual vacancy, such submission does not appear to be justified. As a matter of fact, in the counter affidavit itself, it has been indicated that nomination to the Executive Council are being made every three years obviously keeping in view of the provisions contained under Statute 11(2). The reference to nomination by rotation as contained under Statute 11(1) (ii) to (vii) would obviously mean rotation in accordance with the completion of normal tenure of three years as contemplated under Statute 11(2) and if a person has been nominated to fill up a casual vacancy in accordance with Section 37 of the Act, he would not be disqualified for being nominated for a full term subsequently. No reasons have been given by the University as to why previous practice as reflected in the nomination of Profession S.A. Abbasi had not been followed in the present case.
24. It is contended that some of the persons who have been omitted from being considered have not challenged the nominations and as such their cause can not be espoused by the petitioner association. There is no dispute that the Executive Council has a special role to play in the administration of the University and the Professors and members of the teaching staff as well as their association have a right to expect that the Executive Council should be duly nominated. Moreover, it cannot be said that the persons affected have accepted the nomination of others. It is apparent from the typed set of papers filed by the respondents 2 to 4 themselves, that the persons concerned have filed representations airing their ire. Since the Association, a representative body, has filed the writ petition espousing the cause of aggrieved persons, the technical objection raised by the respondents cannot be countenanced.
25. The aforesaid analysis makes it clear that the nomination of respondents 5 to 8 are not justified. Accordingly, such nominations are quashed and steps should be taken by end of April, 2002 to make fresh nominations in accordance with Statutes 11(1)(iv) to (vii) in accordance with the principles indicated above. It is made clear that Professor Dr. S.A. Abbasi, Dr. M. Ramadass, Dr. K.A. Gunasekaran and Dr. S.S.Sundaravel are eligible in the respective categories coming under Statute 11(1)(iv), (v), (vi) and (vii) and if there is no other eligible person senior to them in their respective category, they should be nominated. In view of the statement of the learned Advocate General that nomination in the categories under Statute 11(1)(ii) and (iii) is to be made very soon, no specific direction is required in respect of those categories. The resolutions of the Executive Council adopted before or during the pendency of the writ petitions may be given effect to unless otherwise directed by the reconstituted Executive Council. Subject to the aforesaid observation, both the writ petitions are allowed to the extent indicated. No costs.
Sd/-
28.03.2002.
After pronouncing the judgment, it is stated by the learned counsel for the University that the selection relating to certain posts under the 9th plan to receive the approval of the Executive Council ends on 31.3.2002. The Executive Council, which has been presently constituted is free to deal with the matter.
Since the matters were pending before the High Court, it goes without saying that the concerned Ministry would not stand on the technicalities and should not treat the 9th plan posts as lapsed.