Madras High Court
Rev.Dr.Arul Arasu Israel vs The Governing Council Of The on 28 July, 2006
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED: 28/07/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.4812 of 2006 and W.P.M.P.(MD)Nos.1,2,3,4 of 2006 Rev.Dr.Arul Arasu Israel ... Petitioner Vs. 1.The Governing Council of the American College, Represented by the Chairman, The Bishop, The American College, Tallakulam, Madurai-2. 2.Dr.T.Chinnaraj Joseph Jaikumar, Principal and Secretary, The American College, Madurai-2. 3.The American College, Madurai, represented by its, Principal and Secretary 4.The Registrar, Madurai Kamaraj University, Palkalai Nagar, Madurai - 2. 5.The Joint Director of Collegiate Education, Shenoy Nagar, Madurai-2. PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned notice dated 23.05.2006 issued by the third respondent the Principal and Secretary of the American Ciollege mentioning that the Governing Council Meeting held on 22.05.2006 has chosen and appointed Dr.T.Chinnaraj Joseph Jaikumar, Head Department of Religion, Philosophy and Sociology as Principal and Secretary of the American College and quash the same and directing the 1st respondent to appoint the petitioner as the Principal and Secretary of the 3rd respondent college. !For Petitioner ... Mr.K.Vellaiswamy ^For Respondents ... Mr.Issac Mohanlal 1-3 For 4th Respondent ... Mr.S.Chandrasekaran For 5th Respondent ... Mr.K.Bhaskaran, Additional Government Pleader. :ORDER
This writ petition is filed challenging the notice issued by the third respondent dated 23.05.2006 stating that as per the first respondent Governing Counsel of American College, in the meeting held on 22.05.2006, the second respondent Head of Department of Religion, Philosophy and sociology, has been chosen and appointed as a Principal and Secretary and that he will assume office on the first June of 2006.
2. The writ petitioner has joined in the third respondent college as Lecturer in the year 1987 in the Department of Religion, Philosophy and Sociology having his qualification M.A.(Philosophy), M.A.(Psychology) and M.A. (Gandhian Thought), M.Phil, B.D. and Ph.D. He was promoted as Reader in the year 1988 and is working in the said capacity as on date under the third respondent college.
3. The third respondent college is an aided minority Grade-I college governed by the provisions of Tamil Nadu Private Colleges (Regulation) Act and Rules made thereunder except those provisions which are not applicable to the minority institutions. According to the petitioner, the second respondent joined services as Lecturer in the third respondent college in the year 1985 and he got Ph.D only in the year 2006 while the petitioner has got Ph.D in the year 1992 itself and working as Reader for the past eight years from 1998 onwards and therefore, the second respondent is junior to the petitioner in the cadre of Reader. On retirement of previous incumbent as the Principal on 31.05.2006, when the vacancy arose, the first respondent Governing Council in its meeting held on 22.05.2000 has chosen to appoint the second respondent as Principal cum Secretary.
4. According to the petitioner, even though, in the master degree he has got more than 55% of marks, the second respondent is having less than that mark and therefore, he was not qualified for being considered to the post of Principal. Therefore, the very appointment of the second respondent even as Lecturer is illegal. According to the petitioner, since the second respondent was appointed as Lecturer even in the year 1985, is bound by the qualifications prescribed by the Government of Tamil Nadu in the G.O.Ms.No.1052 Education and Science and Technology (G11) Department dated 7.10.1983 wherein the qualification prescribed for the post of lecturer is 55% marks in the Post Graduate degree. The second respondent is having less than that 55% and therefore, he has not qualified and he should not have been considered for the post of Principal and Secretary at all in the third respondent college and that appointment is not valid in law. The petitioner also would submit that by subsequent G.O.Ms.No.345 Higher Education (H1) Department dated 03.10.2005, the qualification and eligibility for the post of Principal has been issued by amending G.O.Ms.No.111 and 55% minimum marks was required in the master degree. Therefore, in view of the subsequent Government order which is also binding on the third respondent, the second respondent has no qualification and his appointment is not only against the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 but also against the Government order issued prescribing qualification for the post of the Principal. As per the revised norms fixed as stated above, the G.O.Ms.No.111 Higher Education (H1) Department dated 24.3.1999 was amended by G.O.Ms.No.345 Higher Education (H1) 03.10.2005 under which for the post of Principal in Grade-I College the following qualification has been prescribed.
"1. A masters degree with at least 55% of marks or its equivalent grade "B" in the seven point scale.
2. Ph.D or equivalent qualification
3. A minimum total experience of 15 years of teaching / research in Universities / Colleges and other institutions of Higher Education".
5. According to the petitioner, the said Government order also specifically states that all the universities are to adopt the above said qualification uniformly while approving the qualification of all Principals in Government aided colleges. Inasmuch as, the said revised norms have come into effect from the date of the Government Order namely, 03.10.2005, the appointment of the second respondent is against the said Government order and is liable to be set aside.
6. On the other hand, the respondents 1 to 3 have filed their counter affidavit.
7. According to the respondents, the writ petition is not maintainable. The third respondent is a minority educational institution having been established in the year 1881, and the same is affiliated to the fourth respondent Madurai Kamaraj University. The college was conferred autonomous status from 1978 by the University and it has been accredited as a college with Five Star status. While it is admitted that the third respondent college is an aided college by the Government, it is stated that the third respondent college is also running unaided courses under self financing pattern. When a vacancy arose in the post of Principal in the third respondent college power vested with the first respondent Governing Counsel. The Governing counsel consisting of eminent persons unanimously appointed a three member committee to select the candidate with
i) Rt.Rev.Dr.A.Christopher Asir - Bishop - Chairman
ii)Dr.Sempon David - Former Director of Medical Education, Govt. of Tamil Nadu
iii)Rev.Father Lawrence Amalraj - Former Principal, Arulanadar College, Madurai (autonomous)
8. The sub committee has considered the candidature of all the eligible persons working in the third respondent college. It is also specifically stated by the third respondent that in addition to the eligible candidates working in the third respondent college outsiders were also invited for consideration with the aim of finding out the best suitable person for the said post. The sub committee after a thorough and elaborate consideration of the candidates has recommended the name of the second respondent in the first ranking. Even though, in the counter affidavit it is stated that the second respondent was having Ph.D degree in Sociology in the year 2002-2005 obtained from Madurai Kamaraj University, M.Phil degree in the year 1984-85 having obtained from Gandhigram Rural Institute (Deemed University), M.A. in Sociology in the year 1981-1983 at S.V.Universty, M.A. Social Work in the year 1973-1975 in Madurai University and B.Sc Physics in the year 1970-1973 in Madurai University, without mentioning the marks obtained by the second respondent in his Post graduate degree, the learned counsel for the respondents 1 to 3 would fairly admit the factual position that the second respondent has not got 55% of marks in his Post graduate degree as prescribed in the above said Government order and he in fact obtained the marks 53.5% and 58.2% in M.A. Sociology and M.A. Social work respectively.
9. That apart, it is the case of the respondents 1 to 3 that the second respondent having worked for more than 25 years as Assistant Professor in various grades and involved in the National Level Projects with administrative experience of more than 9 years as Head of the Department both at Post Graduate and under graduate levels, having been worked as a Member of the college Senate and also obtained training from the University Grants Commission and therefore, was found by the Committee to be the fit person to the post as a Principal of the third respondent college. After the appointment of the second respondent, the first respondent has sent the proposals to the 5th respondent Joint Director of Collegiate Education on 01.06.2006 for giving approval of the appointment of the second respondent for the purpose of disbursement of grant- in-aid towards the salary and also for approving him as a Secretary of the college. The third respondent college has also submitted proposals to the fourth respondent University on 01.06.2006 for approving the qualification of the second respondent.
10. While admitting that the petitioner is working in the third respondent college as Reader from the year 1987 it is stated that the petitioner was not made as Reader from the 1988 but was only placed in the cadre of Reader in the year 1990 and the second respondent is senior to the writ petitioner. Further, the allegation that the second respondent was not qualified for the post of Principal is denied. It is stated that the second respondent is appointed as Lecturer in the year 1985 with full educational qualification and the same was approved by the university as also the Director of Collegiate Education. According to the respondents 1 to 3, the requirement of 55% minimum marks in the Post Graduate degree is intended for the appointment after 1991 whereas the second respondent was appointed as a Lecturer even in the year 1985. The fourth respondent has approved the appointment of the second respondent as Lecturer as early as on 26.11.1986. According to the respondents 1 to 3, the minimum qualification of 55% marks required in the Government order is not applicable to the second respondent who was appointed as Lecturer much earlier in 1985. Further, according to the respondents 1 to 3, the second respondent is fully qualified as per the qualification is prescribed by the University Grants Commission and Madurai Kamaraj University. The said respondents would also specifically state that the State Government has no competence to prescribe any qualification, while qualification prescribed only by the University and University Grants Commission. There is no inherent disqualification on the part of the second respondent. While admitting that the third respondent college is bound by the provisions of Tamil Nadu Private Colleges (Regulation) Act, 1976 to the extent that except those provisions which are not applicable to the minority institutions, it is stated that the appointment of the second respondent is well within the powers contemplated under the said Act.
11. Mr. K.Vellaisamy, learned counsel appearing for the writ petitioner by placing reliance on the Government Order in G.O.Ms.No.111 Higher Education (H1) Department dated 24.03.1999 would submit that the said Government order itself was passed based on the qualification prescribed by the University Grants Commission.
12. The learned counsel also placing reliance on the judgment of this Court rendered in Dr.S.Arulmani Vs. Government of Tamil Nadu rep. by its Secretary and Commissioner, Department of Higher Education, Chennai and others reported in 2006 Writ L.R.390 to substantiate his contention that this Court has held categorically that the qualification prescribed under G.O.Ms.111 dated 24.03.1999 was issued in accordance with the regulations framed by the University Grants Commission and the said Government order which is issued by virtue of the power conferred on the State Government under Article 162 of the Constitution of India is in consonance with the University Grants Commission's regulations, and therefore, it cannot be said that the Government order is not binding upon the colleges. The learned counsel also would state that the categoric pronouncement of this Court in the above said judgment that the State Government passed the Government order has a statutory backing by the Central enactment and the said judgment has put an end to any controversy about the applicability or otherwise of the said Government order to the aided colleges.
13. The learned counsel would also submit that the subsequent Government order namely, G.O.Ms.No.345 Higher Education (H1) Department dated 03.10.2005 while issuing the amendment order to G.O.Ms.No.111 dated 24.03.1999 has reaffirmed the qualification of principals in Grade-I, Grade-II colleges stating that a masters degree with 55% of marks is a condition precedent. The learned counsel also would submit that inasmuch as the impugned order of the first respondent dated 01.06.2006 which run as follows:
"This is to report that the Governing Council of the American College, Madurai, after considering the merits and abilities of all the applicants, selected and appointed Dr.T.Chinnaraj Joseph Jaikumar as the Principal & Secretary of the American College,Madurai, from the forenoon of June 1, 2006 through its resolution No.2/May/2006, in its special meeting held on 22.05.2006".
states clearly that the second respondent was "selected and appointed" which means that the post of Principal is not a promotional post and it is a selection post. He would also submit that inasmuch as the respondents 1 to 3 in the counter affidavit have categorically admitted that not only the eligible candidates available in the third respondent college for the post of Principal but also outsiders were called for the purpose of selecting a better person as a Principal and therefore, it should be construed only as a selection and appointment and not by promotion.
14. When it is the matter of open competition, the condition precedent is the required educational qualification. The word "selection and appointment"
under the impugned order shows that it is a new appointment as submitted by the learned counsel for the petitioner.
15. The learned counsel also would rely upon the communication of the fourth respondent Universtity dated 13.5.1999 by referring to G.O.111 dated 24.03.1999. The fourth respondent university while stipulating the qualification for the post of principals states that a masters degree with 55% of marks is required qualification. The further stipulation that the minimum requirement of 55% of marks need not be insisted upon for the existing incumbents who are already working in the college means those persons who are already appointed as Principals who are continuing in respect of whom, the 55% of marks need not be insisted upon and that stipulation is only for the purpose of preventing such persons who are already working as Principals from being disturbed. The specific word stating that the said marks should be insisted upon to the new entrant shows that for the selection and appointment of person as a Principal as in the present case, all candidates whether considered through the college or outside should be treated as entrants and therefore, the qualification of 55% of marks is a required condition.
16. According to the learned counsel for the petitioner, the validity of the G.O.Ms.No.111 as well as the subsequent G.O.Ms.No.345 has been in fact considered by this Court in the above said judgment rendered in Dr.S.Arulmani Vs. Government of Tamil Nadu rep. by its Secretary and Commissioner, Department of Higher Education, Chennai and others reported in 2006 Writ L.R.390, and held valid.
17. On the other hand, Mr. Issac Mohanlal, learned counsel for the respondents 1 to 3 would vehemently submit that a reference to the G.O.Ms.No.111 or G.O.Ms.No.345 has no relevancy for the reason that even though the Government is giving aid to the third respondent college, the State Government has no authority to prescribe qualification in respect of the teachers to be appointed in the aided colleges which include the post of Principal also. He would submit that even though, the G.O.Ms.No.111 refers about the letter of the University Grants Commission, the notification of the University Grants Commission in respect of appointment and career advancement of teachers in the universities and colleges issued on 04.04.2000 shows that the regulation is mandatory in nature and all the universities are expected to follow. The University Grants Commission regulation which is having statutory force since the same has been framed in accordance with the powers conferred under Section 26(1)(e) and (g) read with Section 14 of the University Grants Commission Act 1956 and therefore, the qualification insisted under the said University Grants Commission regulations will supersede the Government order in G.O.Ms.Nos.111 and 345 passed by virtue of the powers conferred under Article 162 Constitution of India to the State Government.
18. According to the learned counsel, the University Grants Commission regulation which contemplates the qualification for the purpose of Principals and professors in Grade - I college as M.A. degree with at least 55% of marks or its equivalent grade of B in the 7 point scale with letter grades O,A,B,C,D,E & F etc. The notes annexured to the said regulation contemplates the provision that the said minimum requirement of 55% of marks shall not be insisted upon the Principals etc., for the existing incumbents who are also in the university system and therefore, according to the learned counsel, inasmuch as, the second respondent is also in services of the third respondent his qualification having been approved even as early as on 1985 by the competent university, by virtue of the said notes under the said regulation, the second respondent is eligible to be appointed and the same cannot be questioned.
19. According to the learned counsel, while making the analogy in respect of Bharathidasan University stating that the said university has adopted the University Grants Commission regulation in its statutes. Even if the fourth respondent University has not adopted the said regulation in its statute, by virtue of the letter of the fourth respondent university dated 13.05.1999, the minimum requirement of 55% of marks need not be insisted upon for the existing incumbents who are already in college which according to the learned counsel for the respondents 1 to 3 means that the second respondent having been working in the third respondent college, the 55% of marks need not be insisted upon. The learned counsel also would place reliance on the judgment of the Apex Court rendered in reported in 1999 (4) SCC 720 for the proposition that inasmuch as the university is a separate entity, any rules framed by the Government are not applicable unless they are specifically adopted by the University in accordance with the provisions of the statutes of the concerned university.
20. In the present case, according to the learned counsel for the respondents 1 to 3, by applying the dictum laid down by the Hon'ble Supreme Court, the applicability of G.O.Ms.Nos.111 and 345 cannot be automatically presumed to the fourth respondent university, if the fourth respondent university has not adopted the said Government order. He would also rely upon another judgment of this Court in the Association of Managements Private Colleges represented by its General Secretary Vs. the Government of Tamil Nadu represented by its Secretary Department of Education, Chennai -9 and another reported in 2000 (4) CTC 641 for the proposition that the university alone has got power to make regulation regarding the qualification for the post of Principal while construing the various provisions of the Tamil Nadu Private Colleges (Regulation) Act. The learned counsel has also relied upon another judgment of this Court rendered in Suresh Manohar and another Vs. The State of Tamil Nadu represented by its Secretary to Government, Chennai-9 and others reported in 2003 (4) CTC 1 wherein while construing the provisions of the Tamil Nadu Private Colleges (Regulation) Act 1976, this Court has held that the powers of the Government to issue any direction can only be in respect of the matters which are not covered under the provisions of the Tamil Nadu Private Colleges Act, 1976. That was the case wherein, the college committee has been conferred with the power of disciplinary proceedings against the teachers and in that circumstance, the Government rules cannot be made applicable. The learned counsel would also place reliance on the other judgment of this Court in S.Mohamood Basha Vs. Director of Collegiate Education Chennai-6 and others reported in 2002 (3) CTC 336 holding that the rules of the Tamil Nadu State Subordinate Service cannot be recorded as statutory so far as the employees of aided colleges are concerned.
21. The reliance was also placed on the judgment reported in Vinayaka Mission's Kirupananda Variyar Medical College, Main Road, Salem rep. by its Registrar, Sponsored by Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust Vs. The Tamil Nadu Dr. MGR Medical University, rep. by its Registrar, Chennai and another reported in 2005 (2) CTC 772 to support his contention that the Government Order cannot be insisted upon when the statutes of the university prescribed some other method. According to the learned counsel for the respondents 1 to 3, the second respondent being senior to the petitioner as stated in the counter affidavit, the petitioner cannot have any grievance in the appointment of the second respondent as a Principal of the third respondent college.
22. Mr.S.Chandrasekaran, learned counsel for the university namely, fourth respondent would also submit that as per the qualification prescribed by the university which is in accordance with the University Grants Commission regulations, the 55% of marks is required in the post graduate level is not insisted to those persons already in services of the concerned college and therefore, according to the learned counsel for the university/fourth respondent, it cannot be said that the second respondent has no qualification.
23. Mr.K.Vellaisamy, learned counsel for the petitioner would contend by way of reply that even assuming that the 55% of marks requirement need not be insisted in respect of persons are already in service but at the same time, the said 55% of marks from outside candidates who are also equally situated for the purpose of selection and appointment to the post of Principal and therefore, such a differential treatment will be arbitrary and has to be set aside.
24. The learned counsel also would state that while admittedly, three outsiders were called for there is absolutely no rationale behind the apprehension that they should have better qualification than the teachers already working in the third respondent college.
25. I have heard the learned counsels for the petitioner as also for the respondents 1 to 4 apart from the learned Additional government Pleader and perused entire records.
26. In this case, the simple question that has to be considered is as to whether the second respondent appointed as Principal of the third respondent college is having required qualification or not. Admittedly, the third respondent college is a minority aided college governed by the provisions of the Tamil Nadu Private Colleges (Regulation) Act and Rules made thereunder except those provisions which are not applicable to the minority institutions.
27. In respect of qualifications of the teaches and other persons employed in the private colleges, the Tamil Nadu Private Colleges (Regulation) Act, 1976 under Section 15 contemplates, the University to frame rules and regulations. The said section runs as follows:
"15.Qualifications of teachers and other persons employed in private colleges:-
1) The University may make regulations, statutes or ordinances specifying the qualifications required for the appointment of teachers, persons employed in any private college.
2) The Government may make rules specifying the qualifications required for appointment to any post, other than teachers, in any private college."
Therefore, it has to be seen as to whether the fourth respondent which is an affiliating university of the third respondent college, even though, the same has been conferred the autonomous status, has framed any regulations in respect of qualifications, regarding the teachers employed in the colleges affiliated to it.
28. The Madurai Kamaraj University Act of 1965, by virtue of which the fourth respondent has come into existence, while dealing with the powers of the syndicate of the fourth respondent university imposes a power on it to prescribe qualifications of teachers in university colleges, affiliated colleges and approved colleges in consultation with the academic council. Section 20(14) of the Madurai Kamaraj University Act 1965 which runs as follows:
"20(14). to prescribe, in consultation with the Academic Council, the qualifications of teachers in University colleges, affiliated and approved colleges and hostels"
29. It is in accordance with the powers conferred under the said provision, the fourth respondent has in fact prescribed qualifications for the teachers of affiliated colleges including the principal, as seen in the communication of the fourth respondent university dated 13.05.1999 to all the principals of Arts and Science Colleges referring to the minutes of the meeting of Syndicate held on 24.04.1999. The said letter also refer to the G.O.Ms.No.111 date 24.03.1999. The qualification prescribed for the post of principals in the aided colleges as seen in the letter of the fourth respondent dated 13.05.1999 is as follows:
"2.Principal
i) A Masters degree with atleast 55% of marks or its equivalent grade 'B' in the seven point scale, (Grade B Good, Grade point 3.50-4.49, percentage equivalent 55-64).
The minimum requirement of 55% need not be insisted upon for the existing incumbent who are already in the colleges. However, these marks should be insisted upon for the new entrants.
ii) A relaxation of 5% may be provided from 55% to 51% of the marks, at the Masters Level to the S.C./S.T. categories.
iii) A relaxation of 5% may be provided from 55% to 50% of the marks to the Ph.D. degree holders who have passed their Masters degree prior to 19th September 1991.
iv) Ph.D., or equivalent qualification.
v) A minimum total experience of 15 years of teaching/research in Universities/Colleges and other institutions of Higher Education."
30. Since the said qualification prescribed by the fourth respondent university refers to G.O.Ms.No.111 Higher Education (H1 Department) dated 24.03.1999, the said Government order in the Annexure II prescribing the educational qualification for the post of lecturers, senior lecturers and principals of the Government and aided colleges. In respect of the post of Principals in Grade I and II colleges, the said Government order stipulates the qualification as follows:
"2.Principals(Grade-I)
i) A Masters degree with at least 55% of marks of its equivalent grade "B"
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 15 yeas of teaching / research in Universities/ colleges and other institutions of Higher Education. Principals (Grade-II)
i) A Masters degree with at least 55% of marks of its equivalent grade "B" in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 10 years of teaching/research in Universities/ colleges and other institutions of Higher Education. Explanation:
However, the Principals of Government colleges are presently being placed in two grades on the basis of the following criteria. Professor grade Principals are posted to colleges with at least two P.G. courses and a student strength of not less than 1000. Reader grade principals are posted to other colleges. Appointment to the post of Principals is being made from among the holders of posts of Lecturers (Selection grade / Reader) in colleges. The seniority as Selection Grade Lecturer is the criteria, for promotion. This system which is vogue since 1989 will continue in Government colleges".
31. The said Government order was subsequently amended by G.O.Ms.No.345 Higher Education (H1 Department) dated 03.10.2005 however without affecting qualifications prescribed for the post of Principal. The said G.O.Ms.No.345 in respect of the qualification for the post of Principals runs as follows:
"2.Principals(Grade-I)
i) A Masters degree with at least 55% of marks of its equivalent grade "B"
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 15 yeas of teaching / research in Universities/ colleges and other institutions of Higher Education. Principals (Grade-II)
i) A Masters degree with at least 55% of marks of its equivalent grade "B" in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 10 years of teaching/research in Universities/ colleges and other institutions of Higher Education. Explanation:
i) However, the Principals of Government colleges are presently being placed in two grades on the basis of the following criteria. Grade-I Principals are posted to colleges with atleast two P.G. courses and a student strength of not less than 1000 in regular courses of study. Grade-II Principals are posted to other colleges.
ii) Appointment to the post of Principals is being made from among the holders of posts of Lecturers (Selection Grade / Reader) in colleges. The seniority as Selection Grade Lecturer is the criteria for promotion.
iii) For those who have been promoted as Principals from 01.01.1996 to till the date of issue of this order, Ph.D qualification need not be insisted upon.
iv) The decision in respect of implementation of Ph.D qualification for the promotion as Principal in Government/Aided Colleges shall be as follows.
a) In respect of Lecturers appointed prior to 01.01.1996, the Lecturers must qualify Ph.D within 6 years from the date of issue of this order.
b) If the Lecturers appointed prior to 01.01.1996 and those who have less than 6 years of left over service to retire, may also be considered for promotion as Principal as per the existing rules.
c) For those who have more than 6 years of service, they should acquire Ph.D. qualification within 6 years period from the day of issue of this order, failing which he or she will not be considered after 6 years period for the post of Principal.
d) In respect of Lecturers appointed on or after 1.1.1996, the prerequiste qualification of Ph.D for promotion as Principal is mandatory.
e) All Universities in Tamil Nadu may be requested to adopt the above qualifications uniformly while approving qualification of Principals in Government / Government Aided Colleges.
f) These revised norms will come into force with effect from the date of issue of this order."
32. It is relevant to point out that the said Government orders refer about the communication from the University Grants Commission. The University Grants Commission while framing the regulations by virtue of the powers conferred on it under Section 26(1)(e)and(g) read with Section 14 of the University Grants Commission Act, 1956 has prescribed the minimum qualification for the purpose of professors, principals etc., in the universities, colleges, along with foot notes which runs as follows:
"1.0.0 Direct Recruitment 1.1.0 Principal (Professor's Grade)
i) A Masters degree with at least 55% of marks of its equivalent grade "B"
in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 15 yeas of teaching / research in Universities/ colleges and other institutions of Higher Education. 1.2.0 Principals (Reader's Grade)
i) A Masters degree with at least 55% of marks of its equivalent grade "B" in the seven point scale.
ii) Ph.D., or equivalent qualification
iii)A minimum total experience of 10 years of teaching/research in Universities/ colleges and other institutions of Higher Education.
Notes:
1. A relaxation of 5% may be provided from 55% to 50% of the marks at the Master's level for the SC/ST category.
2) A relaxation of 5% may be provided from 55% to 50% of the marks to the Ph.D degree holders who have passed their Master's degree prior to 19th September 1991.
3) B in the 7 point scale with letter grade O,A,B,C,D,E & F shall be regarded as equivalent of 55% whereever the grading system is followed.
4) NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D degree. However, the candidate who have completed M.Phil, degree or have submitted Ph.D thesis in the concerned subject up to 31st December, 1993, are exempted from appearing in the NET examination.
5) The minimum requirement of 55% shall not be insisted upon for Principals, Professors, Readers, Librarians, Deputy Librarians, Directors of Physical Education and Deputy Directors of Physical Education, for the existing incumbents who are already in the university system. however, these marks should be insisted upon for those entering the system from outside and those at the entry point of Lecturers, Assistant Registrars, Assistant Librarians, Assistant Directors of Physical Education.
6) A relaxation of the minimum marks at the PG level from 55% to 50% for appointment as Lecturer may be provided to the candidates who have cleared the JRF examination conducted by UGC/CSIR only, prior to 1989, when the minimum marks required to appear for JRF exam were 50%."
33. It is by referring to G.O.Ms.No.111 dated 24.03.1999 and the said qualification prescribed by the University Grants Commission, this Court in the judgment rendered in Dr.S.Arulmani Vs. the Government of Tamil Nadu represented by its Secretary, and Commissioner, Department of Higher Education, Chennai and others reported in 2006 W L.R 390 has held that there is no contradiction between the G.O.Ms.No.111 passed by the State Government by virtue of the powers conferred under Article 162 Constitution of India and the stipulations of the University Grants Commission regarding the qualification of Principals prescribed by virtue of the powers under Section 26 of the University Grants Commission Act and thus held that the G.O.Ms.No.111 is applicable. This Court in categorical terms has held in Para 40 as follows:
"In view of the finding that G.O.Ms.No.111 dated 24.03.1999 prescribing educational qualification and the constitution of committee was issued only in accordance with the regulations framed by UGC, the impugned order though issued under Article 162 of the Constitution of India, inasmuch as it reproduces the minimum educational qualifications and the constitution of the selection committee as per the Regulations, it cannot be said that it is not binding on the college. Hence, Point No.1 is answered by holding that the said Government Order have statutory backing of the Central Enactment and consequently, is binding on the college."
34. Therefore, a combined reading of the above facts, would show that the qualifications prescribed by the fourth respondent university, University Grants Commission, as well as the Government order in G.O.Ms.No.111 as also the subsequent G.O.Ms.No.345 are all applicable in the present case and there are absolutely no contradiction.
35. In this regard, the contention of the learned counsel for the respondents 1 to 3 Mr.Issac Mohanlal that the University Grants Commission stipulations regarding the qualifications for the post of Principal does not prescribe the 55% of marks in the Post Graduate level in respect of the persons who are already working in the same college but on the other hand such relaxation are not available under G.O.Ms.No.111 and therefore, the said G.O.Ms.No.111 cannot be made applicable, is unsustainable.
36. A reference to the University Grants Commission stipulations regarding the qualification of the Principal as enumerated above shows categorically that the University Grants Commission has also prescribed 55% of marks are equivalent Grade-B in the master degree. A reference to the notes under the University Grants Commission regulations shows that the minimum requirement of 55% marks shall not be insisted upon for principals in respect of the existing incumbent who are already in the university system. This term is applicable only in respect of the persons who are already holding the post of Principal on the date when the stipulation has come into effect in respect of qualification for the post of Principals etc., in order to protect the incumbent occupying the post without the 55% of marks in the Post Graduate level. It cannot be construed as if such qualification is not required even for a person who is to be appointed subsequently as a Principal simply for the reason that such candidate is already working as a teacher in the same college. In this regard, the subsequent lines in the said notes which runs as follows is relevant:
"However this marks should be insisted upon for those entering system from outside and those at the entry point of lecturers, Assistant Registrars, Assistant Librarians, Assistant of Physical education,"
37. However, in this case, it is relevant to point out that admittedly, the third respondent has considered not only the eligible candidates working in the third respondent college for the post of Principal but also outsiders have been called for and therefore, it should be treated as a fresh selection and in such circumstances, in the post of principals there cannot be two yardsticks one lesser qualification for the teachers working in the same college and another more qualification for the persons to compete from outside. Such construction will only result in an unnecessary discrimination among the equally situated people who are competing to the post of Principal. Therefore, I do not agree the contention of the learned counsel for the respondents 1 to 3 that the exemption of 55% of marks should be construed to the teachers working in the third respondent college like the second respondent who has competed to the post of Principal.
38. In fact, the stipulation by the University also uses the same word namely, the minimum requirement of 55% of marks need not be insisted upon for the existing incumbent who are already in the college. However, these marks should be insisting upon for the new entrants. Even though, the learned counsel appearing for the fourth respondent University has been contending that this has been construed by the university in the manner it is contended by the learned counsel for the respondents 1 to 3, for the reasons I have stated above, such contentions is not tenable. I am emboldened to insist by repeating that such construction will only result in discrimination among the equally situated people and there is absolutely no rationale basis whatsoever in connection with the object sought to be achieved, namely to select a better person for the post of Principal.
39. On the other hand, the purpose of not insisting such 55% of marks was only to safeguard the interest of the persons holding the post of Principal and other post on the date when stipulation regarding the qualification came into existence either by University or University Grants Commission. Therefore, I am of the considered view that the qualification prescribed under the said G.o.Ms.No.111 as also in the University Grants Commission notification apart from the University stipulations is very clear that for the post of Principal in Grade-I college, minimum requirement for a candidate is a pass in the Post Graduate with 55% of marks apart from Ph.d and other teaching qualifications. Inasmuch as it is admitted by the respondents 1 to 3 that the second respondent is not having the said 55% of marks in the Post Graduate degree, I have absolutely no hesitation to hold that the second respondent is not qualified as per the qualification prescribed by the University Grants Commission and the Government.
40. By virtue of the decision which I have arrived at there is no necessity to decide about the qualification of the principal under G.O.Ms.No.111 or the subsequent G.O.Ms.No.345 especially in the circumstance that this has been the judicial pronouncement and also it is on fact clear that there is really no contradiction between the Government order prescribing qualification as well as the qualification prescribed by the University namely, the fourth respondent apart from the qualification prescribed the University Grants Commission for the post of the Principal in Grade I College.
41. One another aspect is to be considered in this case is as to whether these stipulations are applicable to the third respondent which is a minority college. It is not even the case of the respondents 1 to 3 that by virtue of the minority status, the third respondent need not follow the qualification prescribed for the purpose of teachers including the principal. Even assuming that such argument is advanced, in my considered view the same is not tenable, for, qualification for the post of teachers cannot be compromised at any cost. Even a minority institution is to follow the qualification prescribed for the post of like Principal, lecturers,etc.,
42. In view of the reasons stated above and looking into any angle, I am of the considered view that the impugned notice issued by the third respondent dated 23.05.2006 is not valid in the eye of law and is quashed and the writ petition stands allowed with a direction to the first respondent to initiate due process for the selection and appointment of the Principal under the third respondent college. No costs. Consequently, connected M.Ps. are closed.
To
1.The Governing Council of the American College, Represented by the Chairman, The Bishop, The American College, Tallakulam, Madurai-2.
2.Dr.T.Chinnaraj Joseph Jaikumar, Principal and Secretary, The American College, Madurai-2.
3.The American College, Madurai, represented by its, Principal and Secretary
4.The Registrar, Madurai Kamaraj University, Palkalai Nagar, Madurai - 2.
5.The Joint Director of Collegiate Education, Shenoy Nagar, Madurai-2.