Madras High Court
Dr. S. Balasundaram And Anr. vs Dr. S. Mahadevan on 26 July, 1990
Equivalent citations: (1991)451MLJ1
JUDGMENT P.S. Mishra, J.
1. The writ petitioner had approached this Court asking for a writ of quo warranto and failed. His attempt to get the order rejecting his prayer for a writ reviewed also failed. He filed another writ petition with prayer for a writ of certiorari and consequential mandamus and succeeded. The instant appeals have been preferred against the judgment and order of Mohan, J. (as he then was) in the second writ petition.
2. Several posts under the Tamil Nadu Agricultural University/second respondent/appellant in W.A. No. 949 of 1986 were advertised on 8.2.1984 calling for applications from eligible candidates for various posts including the post of Professor and Associate Professor in various faculties. Under Service Regulations framed under the Tamil Nadu Agricultural University Act, by which the University has been created, conditions of service of teachers appointed under it, including the qualifications, etc., and various modes of appointments, are prescribed. For the post of Associate Professor with which we are concerned, the minimum qualifications required are:
(a) A first or high second class degree in the "subject pertaining to the Faculty.
(b) A Ph.D. Degree in the concerned filed of specialization.
(c) Teaching and/or research experience in any College for at least five years.
(d) Experience in research in the concerned field of specialization as evidenced by published papers in scientific journals and books.
(e) A Master's degree holder in the concerned field with not less than five years teaching and/or research experience may also apply.
It appears, however, that the University Grants Commission suggested scales of pay to teaching/research staff and accordingly made recommendations subject to various conditions. The State Government accordingly issued orders by G.O.Ms. No. 1950, Agriculture (A.U.I.) Department, dated 30.11.1977 stating that the eligibility for the revised scales of pay would be subject to the various conditions specified in the Order. There were, however, protests and on representations of the Government College teachers and others, the State Government came out with a modification by G.O.Ms. No. 841, Agriculture (A.U.I) Department, dated 15.5.1978. Under this G.O., it was said:
5. The existing qualification to the various posts under the Tamil Nadu Agricultural University Grants Commission should be followed without any deviation.
There were protests again particularly to the insistence to implement the conditions as to qualifications for the various posts in the University as prescribed by the University Grants Commission. The State Government issued a fresh G.O. vide G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, stating:
5. The Government have examined the representations in the light of the orders issued under Government Orders read above and consider that the following revised qualifications may be prescribed for the posts mentioned hereunder:
Name of the post Qualification (in respect of all
faculties other than Agricultural
Engineering)
... ... ... ... ...
(b) Associate Professor Ph.D. Degree with five years of
experience in teaching/research
in the subjects concerned
... ... ... ... ...
(c) Assistant Professor a) Ph.D. Degree or
b) Master's Degree with three
years experience.
6. The Government also consider that teachers now in service aged 50 years and above on the date of issue of this order will be exempted from acquiring Ph.D., Degree. Others should acquire Ph.D., qualification within five years from the date of issue of this order. During the interim period of five years, if any higher posts are advertised for recruitment, the existing regular candidates of the University may apply for such posts irrespective of their qualifications but selections will be made after taking into account their experience and competence.
7. The Government have also examined about the provision of facilities for acquiring Ph.D., Degree and they consider that where facilities are not available either within the University or outside the University in the country for acquiring Ph.D., in any subject, such qualification need not be insisted upon. It appears that no attempt was made to amend the statutes or service regulations of the University in the light of the recommendations of the University Grants Commission and the Government Orders, but the University, however, took notice of the Government Orders and at a meeting of the Board of the University, decided to recommend to the Government to extend the period prescribed in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979 for acquiring the prescribed qualifications in respect of the teaching staff. The University made its first recommendation to the State Government on 27.12.1982 followed by its another communication dated 13.1.1983. Before ever anything was heard from the Government, the University advertised and accordingly invited applications for various posts including the post of Associate Professor in Parasitology. The advertisement mentioned the minimum qualification vide G.O.Ms. No. 841, Agriculture (A.U.I.) Department, dated 15.5.1978, but added that conditions in G.O.Ms. No. 62, Agriculture, dated 10.1.1979 shall apply to the teachers, who were already working under the University. The respondent/writ petitioner as well as the first respondent in the writ petition applied for appointment to the said post. While the writ petitioner it appears, had the prescribed qualification in accordance with the University Grants Commission's recommendations and the Government Orders, the first respondent in the writ petition qualified under the statutory requirements of the minimum qualification and the relaxation envisaged in G.O.Ms. No. 62, Agriculture, dated 10.1.1979, the period whereof was yet to be extended by the Government beyond the deadline in G.O.Ms. No. 62, Agriculture, dated 10.1.1979. Nevertheless, the first respondent/appellant in W.A. No. 865 of 1986 was selected by the University and appointed as Associate Professor with effect from 30.4.1984. The said appointment was duly ratified at the meeting of the Board of the University held on 28.5.1984. A fresh Government Order on the subject of the period for acquiring the prescribed qualification vide G.O.Ms. No. 841, Agriculture (A.U.I) Department, dated 15.5.1978and reiterated by G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, however, came on 23.8.1984 vide G.O.Ms. No. 1633, Agriculture stating that the period for acquiring the prescribed qualification that is to say Ph.D. in respect of teaching staff, who were below 50 years of age and who had not completed the Ph.D. course till that date as per G.O.Ms. No. 62, Agriculture, dated 10.1.1979, was extended by a further period of 3 years from 10.1.1984. This was further clarified by communication letter R.C.76463/A.U.L/84-1 dated 19.9.1984 that during the extended period of three years inservice candidates of the University could apply for each post as may be advertised for recruitment, irrespective of their not having Ph.D. qualification. The writ petitioner, however, moved this Court by filing two writ petitions viz., (1) W.P. No. 5426 of 1984 for a writ of qua warranto and (2) W.P. No. 9495 of 1984 for certiorarified mandamus to quash G.O.Ms. No. 1633, Agricultural (AA-IV), dated 23.8.1984, aforementioned and to direct the respondent/University and others to consider his claim for appointment as Associate Professor.
3. These writ petitions were placed together before Nainar Sundaram, J. In his detailed judgment, the learned Judge found that the appointment of the first respondent/appellant in W.A. No. 865 of 1986 satisfied the statutory prescriptions and was not in derogation of any statutory mandate and thus it did not warrant any interference by this Court. On G.O.Ms. No. 1633, Agricultural (AA-IV) Department, dated 23.8.1984, the learned Judge stated that there was vague allegation of mala fide which was not enough to convince the court that the Government Order was in fact motivated by mala fides. He also said that it was not possible to hold that the same has been issued just to defeat the claims, if any, of the writ petitioner or to make his writ petition that is to say W.P. No. 9495 of 1982 infructuous. The learned Judge found no force in the contention of the petitioner that the Government Order was bad in law. While dealing with the various Government Orders in W.P. No. 9495 of 1984, the learned Judge held that these Governmen; Orders were not statutory prescriptions and that they were more in the nature of recommendations. The respondent/writ petitioner filed Review Petitions Nos.6288 and 6289 of 1&5 in W.P.Nos.5426 and 9495 of 1984 which were placed before Nainar Sundaram, J. who once again considered the facts and law and said:
The petitioner in the writ petitions and the first respondent herein are inservice candidates. While dismissing the writ petitions, I had taken note of the fact that the first respondent did satisfy the statutory prescription of being a post-graduate for filling up the post in question. The review petitions were admitted on the ground that the prescription relating to a candidate being a post-graduate was subsequently deleted and hence on the relevant date, such a prescription was not in existence....
and also referred to the statement in the counter-affidavit in detail to bring to the fore the averments which had furnished the basis to hold that there was no disqualification in the first respondent/appellant in W.A. No. 865 of 1986. The two paragraphs of the counter-affidavit filed on behalf of the respondent/University/appellant in W.A. No. 949 of 1986 extracted by the learned Judge in his review order read:
Consequent on the introduction of the U.G.C scales of pay, the Board of Management in its 29th meeting held on 1.2.1978 approved the revision of qualifications as detailed in the agenda to bring it on line with the qualifications prescribed by the Government. The result was that a post-graduate degree holder became disentitled to be appointed as a Professor or an Associate Professor. After the introduction of the revised qualifications and the consequent revision made by the Board, several representations were made by the service Associations requesting the Government and the University to enable the inservice candidates of the University to be eligible in the given time to acquire the Ph.D. qualifications and also be eligible to be appointed to various posts with the existing post-graduate qualifications. Taking note of these revisions, the Government passed orders in G.O.Ms. No. 62, Agriculture, dated 10.1.1979 under which the Government while laying down the qualifications for various posts ordered that so far as the inservice candidates are concerned that they would be eligible for recruitments to the various posts irrespective of whether they possess Ph.D. qualifications or not. In other words, the effect of the Government order in G.O.Ms. No. 6, Agriculture was that while the qualifications for outsiders was a Ph.D. the inservice candidates would be eligible if they possess the post-graduate degree.
As stated already the statutory regulations had been revised on 1.2.1978 disabling post-graduate degree holders from being eligible to apply. A proposal was made to approve the qualifications communicated in G.O.Ms. No. 62, Agriculture for recruitments in this University so as to enable the post-graduate inservice candidates who possessed post-graduate degrees to be eligible to be appointed to various posts. The qualification referred to in G.O.Ms. No. 62, Agriculture was approved in modification of the qualifications approved under agenda item No. 9 of 29th meeting of the Board held on February 1, 1978. The Board in its 34th Meeting held on 16.1.1979 approved the qualifications communicated in G.O.Ms. No. 62, Agriculture for recruitment in the University. The effect and the result of the decision of the Board in its 34th meeting is to (amend) remand the statutory regulation enabling the post-graduate holders to be eligible to apply and to be selected for various posts in the University proved they are inservice candidates. To put it in other words while the original statutory regulations enabled all post-graduate degree holders to be eligible for appointment the revised regulations as approved by the Board in its 34th meeting enabled inservice candidates who possess the post-graduate degree to be eligible for appointment.
The learned Judge thus found no merit in the review applications. He, however, observed:
...The dismissal of the writ petitions or the review petitions shall not be taken to have decided any other right of the petitioner, the scope of the main controversy adjudicated herein being limited to the issuance of a writ of quo warranto.
4. Having lost the battle in the writ petitions for a writ of quo warranto and certiorarified mandamus and review applications, it appears that the writ p'etitioner, found in the words of Nainar Sunda-ram, J.
...The dismissal of the writ petitioners or the review petitions shall not be taken to have decided any other right of the petitioner, the scope of the main controversy adjudicated herein being limited to the issuance of a writ of quo warranto.
An opportunity to re-agitate the issue as to the validity of the appointment of the first respondent/appellant and other consequential reliefs and thus obtained finally a writ issued under the orders of Mohan, J. The learned Judge allowed W.P. No. 8226 of 1985 in which the prayer was made to quash the order dated 28.4.1984 by which the first respondent/appellant in W.A. No. 865 of 1986 was appointed as an Associate Professor and to conduct fresh selection for the post in accordance with law and disposed of W.A. No. 7938 of 1985 saying:
As regards the writ of prohibition in W.P. No. 7938 of 1985, it is now for the university to consider the prayer therein in the light of the Judgment made in W.P. No. 8226 of 1985. W.P. No. 7938 of 1985 is ordered accordingly.
As a consequence to the order of Mohan, J. the first respondent/appellant in W.A. No. 865 of 1986 lost his appointment as the Associate Professor and the University came under a command of the Court to consider recovery of the emoluments paid to him during the period he worked as the Associate Professor and to invite fresh applications from inservice candidates for appointment to the post of Associate Professor of Parasitology. It will not be necessary to dilate on all the questions which have been answered by Nainar Sundaram, J. in the judgment in W.P. No. 5426.of 1984 and his findings which have not been questioned by the writ petitioner/first respondent in the instant appeal. The appellants have not questioned either the scope of Article 226 of the Constitution of India or the character of the University as an 'authority' under Article 12 of the Constitution of India and so amenable to the writ jurisdiction of this Court. Some of the findings, however, of Nainar Sundaram, J. which stand in conflict with the findings recorded by Mohan, J. in the impugned judgment and which appear to me to beB relevant, require a mention here.
5. Nainar Sundaram, J. has held that Service Regulation No. 5 read with serial number 8(e) of Appendix I of the Statute of the University, permits a Master's Degree-holder in the concerned field with not less than five years teaching and/or research experience to be appointed to the office of Associate Professor, a qualification of eligibility which the first respondent/appellant in W.A. No. 865 of 1986 fully answered. He has also held that when the Government Orders under which qualifications prescribed in serial number 8(e) of Appendix 1 to the Regulations were omitted, had no statutory force, they could not abbreviate, aberrate and abrogate the statutory prescriptions in the Regulations and that non-mentioning of the conditions in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, in the advertisement inviting applications was an irregularity, but not enough to strike down the appointment of the first respondent/appellant in W.A. No. 865 of 1986. Findings in this regard recorded by Mohan, J., in the impugned judgment, are in contrast of the findings recorded by Nainar Sundaram, J., Mohan, J., has held, after referring to the advertisement of the Uniyersity stating the minimum qualification and referring to the prescription in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, to the effected that the Tamil Nadu Agriculture University Employees would be governed by the rules prescribed in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, as also after referring to paragraph 6 of the G.O., which stated that the Government considered that teachers in service aged 50 years and above on the date of issue of the order, would be exempt from acquiring Ph.D. Degree, but other inservice candidates should acquire Ph.D. qualification within five years from the date of issue of the order, and during the interim period of five years, if any higher posts were advertised for recruitment, the existing regular employee candidates would apply for such posts.
it will be clear that those persons who were in the employment of the Tamil Nadu Agriculture University were given elbow-room" to acquire Ph.D., qualification within five years from the date of the issue of this Government r order, namely G.O.Ms. No. 62, Agricultural Department, dated 10.1.1979. The date of the G.O., being 10.1.1979, it would come to an end by 9.1.1984 itself. Therefore, pausing here for a moment, I am surprised to note that a University, which is an enlightened place of learning, without regard to the terms of the G.O., particularly paragraph 6 thereof, which I have extracted above, must go to the extent of saying that the Agricultural University employees will be governed by this G.O. It should be carefully noted that this G.O., had become a dead letter by then, having lapsed by efflux of time. It should also be equally remembered, that this advertisement of the University does not refer to any rules or regulations made by the University. Therefore, what was held out was the qualifications, as prescribed under a G.G., which were not in force on the date of advertisement, namely 8.2.1984....
He has answered the contention as to the qualification prescribed under the Regulations of the University holding that whatever be the terms of the Government Order, they were adopted in toto by the University as per the proceedings of the Board of the University at its meeting held on 16.1.1979. Proceeding further on the question as to whether, in terms of the advertisement issued by the University, a person who qualified under G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, could also apply, he has held that although the University had requested the Government to extend the concession given in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, for a further period of three years from 10.1.1984, five years period under the said Government Order expired on 10.1.1984. Since the Government Order extending the elbow period came only on 23.8.1984, the University could not recruit any person as Associate Professor in the service of the University during the period between 10.1.1984 and 23.8.1984 unless he had qualifications as per the Government Order that is to say Ph.D. Degree with five years experience in teaching/research in the subject concerned. He has thus concluded contrary to the findings recorded by Nainar Sundaram, J., that the first respondent/appellant in W.A. No. 865 of 1986 did not possess the requisite qualification at the time of the recruitment and his appointment as Associate Professor was void.
6. The Tamil Nadu Agricultural University Act; has provided in Section 35 thereof that subject to the provisions of the Act, the appointment, procedure for selection, pay and allowances and other conditions of service of officers, teachers and other employees of the University shall be as prescribed, Section 38 of the Act which provides for statutory regulations says:
(1) Subject to the provisions of this Act, and the Statutes, the authorities of the University may make regulations to provide for all or any of the following matters, namely:
... ... ... ... ...
(b) the appointment, procedure for selection, and pay and allowances and other conditions of service of officers, teachers and other employees of the University:
Section 23 of the Act, which enumerates the powers and duties of the Academic Council of the University, contains in Clause (h) a provision to make recommendation to the Board regarding the qualifications to be prescribed for teaching and extension staff in the University, thus recognising the authority of the Board of Management of the University to prescribe regulations regarding the qualifications for teaching and extension staff in the University. The Board which is constituted in accordance with the provisions in Section 18 of the Act, has been given overall powers and duties in Section 19 of the Act extending to all and every matter concerning the University's affairs as stated in Clause (o) thereof, to exercise such other powers and perform such other duties not inconsistent with the provisions of the Act or the Statutes as may be necessary for carrying out the purposes of the Act. These provisions read together thus show that a teacher's appointment in the University has to be made in accordance with such service regulations which prescribe the conditions of eligibility and other conditions of service. Reg.5 in Chapter III of the Statutory Regulations of the University says:
(1) The qualification, method of selection and appointing authority in respect of various posts in the University shall be as specified in Appendix 1, The qualifications and procedures for recruitment prescribed in Appendix 1 shall apply to posts in the University after the date to be specified by Government under Section 42 of the Act.
It is not in dispute that Appendix 1 in which the aforementioned qualifications are incorporated has been approved by the State Government and thereafter published laying down that for the post of Associate Professor:
(a) A First or high second class degree in the subject pertaining to the Faculty.
(b) A Ph.D. Degree in the concerned field of specialization;
(c) Teaching and/or research experience in any College for at least five years.
(d) Experience in research in the concerned field of specialization as evidenced by published papers in scientific journals and books.
(e) A Master's degree holder in the concerned field with not less than five years teaching and/ or research experience may also apply.
Learned Counsel for the writ petitioner/first respondent made some attempt before us to contend that even the Regulations never recognised a Master's degree-holder in the concerned field with not less than five years teaching and/or research experience as the qualified person for appointment; the schedule has used nothing to disjoin item (c) thereof from items (a)(b)(c) and (d). He has further contended that even according to the Regulations of the University, a Ph.D. degree in the concerned field of specialization besides teaching and/or research experience is the minimum requirement for appointment as Associate Professor. However, on scrutiny, one may take notice of the fact that while a first or high second class degree in the subject pertaining to the Faculty is a sine quo non, a Ph.D. Degree in the concerned field of specialization with teaching and/or research experience in any College for at least five years or experience in research in the concerned field of specialization as evidenced by published papers in scientific journals and books, are desirable but not mandatory. Otherwise, in Clause (e) it would not have been stated that a Master's degree holder in the concerned field with not less than five years teaching and or/research experience may also apply. The eligibility of a first or high second class Master's degree-holder in the concerned field with not less than five years teaching and/or research experience is clear and unambiguous. Had this been not so, there was no occasion for the State Government to issue Government Orders to exclude "Master degree-holders with the requisite teaching and/or research experience from the field of consideration, and thereafter on receiving representations to issue Government orders saying that those who did not possess Ph.D. Degree but were inservice candidates could apply subject to the condition that they would obtain Ph.D. Degree within specific period of time. Similarly, the University would not have exercised itself to consider at its meeting how to implement the Government Order and to insist on a Ph.D. degree in the concerned field of specialization for a candidate's eligibility for the post of Associate Professor.
7. Nainar Sundaram, J., as already noticed, has held that Government Orders had no statutory force and that there has been no amendment to the statutory regulations and thus, the first respondent/appellant in W.A. No. 865 of 1986 did possess the requisite qualification for the post of Associate Professor. However, since Mohan, J., has held that the University had accepted the Government Order at its Board meeting and these regulations stood amended subject to the Government Order extending the earlier period of five years as stipulated in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, to another three years as requested by the University, which extension came only on 23.8.1984, during the interregnum, the only regulation applicable was the one which prescribed Ph.D. Degree as the minimum qualification, we are required to examine whether there has been any amendment to the statutory regulations in fact or in effect or not. No one has disputed that after receiving the Government Order in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, the University held a Board Meeting and resolved to act accordingly. It is also not disputed that when inservice candidates made representations, the University realised that extension was needed for a further period of three years and therefore the Board at a meeting decided to request the State Government to sanction a further period of three years with effect from 10.1.1984. When the advertisement calling for applications was issued on 8.2.1984, the University included therein a mention to G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, evidently intending to provide an opportunity to inservice candidates, who were not Ph.D. Degree-holders, to apply for the post. It seems, however, when University realised that G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, had mentioned a five years' period, and the period had come to an end, the University immediately took action on 28.5.1984. The University requested the State Government to extend the five years period by another three years with effect from 10.1.1984. The Government responded favourably by issuing G.O.Ms. No. 1633, Agricultural (AA-IV) Department, dated 23.8.1984. If these facts are assimilated, they show clearly that inservice candidates were not affected by G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, and they could apply with their qualification of Post-graduate degree without having Ph.D. Degree. The University acknowledged their eligibility in the advertisement. Since the State Government, however, had intended to limit the relaxation of the Ph.D. Degree for inservice candidates for a period of five years only with effect from 10.1.1979, the University thought it proper to inform the Government that quite a few inservice candidates would become ineligible if a further extension of three years was not given to them. I have already taken notice of the relevant provisions of the Act to show how service regulations can be made, amended or modified, etc., In answer to our question, learned Counsel for the parties have accepted that except that on receipt of the Government Order, the Board of the University met and decided to implement the Government order and later when it was found that a further extension was needed, the Board accordingly resolved to request the State Government to extend the period by another three years, nothing required under the Act was done to amend the Regulations. Nainar Sundaram, J., thus has stated the correct position of law that the Government orders were yet to become statutory regulations. We are not concerned in the instant case with the inter se merit of respondent No. 1/appellant in W.A. No. 865 of 1986 on the one hand and the writ petitioner/ first respondent on the other hand. Since it is not in dispute that first respondent/appellant in W.A. No. 865 of 1986 was fully qualified under the Regulations and even under G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, the only question now left to be considered will be whether G.O.Ms. No. 1633, Agricultural (AA-IV), dated 23.8.1984 which sanctioned extension of the five years period stipulated in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, for another period of three years, will accrue to the benefit of first respondent/appellant in W.A. No. 865 of 1986 or not and even if G.O.Ms. No. 1633, Agricultural (AA-IV) Department, dated 23.8.1984, is ignored, whether his eligibility was in any manner inhibited by G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, or not on account of five years extension period coming to an end. To this, one may add one more contention whether by incorporating in the said advertisement, a mention to G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, the University represented to the inservice candidates including respondent No. 1/appellant in W.A. No. 865 of 1986 that they qualified for the appointment as Associate Professor even though they were yet to obtain Ph.D. Degree.
8. It is well-settled that anything granted by or under a statute cannot be taken away by or under any administrative instruction or executive order. G.O.Ms. No. 62, Agriculture, dated 10.1.1979, which intended to take away the eligibility of those who were otherwise qualified but had no Ph.D. Degree, was no doubt a directive to the University and that is why the Board of the University considered it necessary to sit at a meeting to decide whether to implement it or not. The Board's decision to implement the Government Order, however, was not enough to charge it with a statutory force unless the University framed a regulation for inservice candidates. G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, had suggested no amendment to the regulations fixing the minimum qualification for eligibility for inservice candidates. If there was any such suggestion for inservice candidates, that was to be implemented after the expiry of the period of five years from 10.1.1979. For in service candidates, the authorities of the University were yet to take a decision whether to insist upon the minimum qualification of Ph.D. Degree or not. The University had obviously not done it until 8.2.1984 when the advertisement was issued. The University incorporated in the advertisement a mention of G.O.Ms. No. 62, Agricultural Department, dated 10.1.1979, for inservice candidates and when the Board met, it decided to request the Government to extend the period of five years by another period of three years with effect from 10.1.1984. This action of the Board of the University clearly shows that the Board of the University or for that matter any other authority of the University had not decided to amend the statutory regulations and insist on Ph.D. Degree as the minimum qualification for the inservice candidates. It is clearly a case where the issue as to whether in service candidates without Ph.D. Degree should be allowed to apply for the post of Associate Professor or not was yet to be finally decided both by the University as well as the State Government. The fact that a decision came in G.O.Ms. No. 1633, Agricultural (AA-IV) Department, dated 23.8.1984, in favour of the extension of the period of five years by another period of three years with effect from 10.1.1984 is itself a proof of such intention of the University and the State Government.
9. Since a view has been taken by Mohan, J., that between 10.1.1984 and 23.8.1984 in view of the recommendations of the State Government in G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979, Ph.D. Degree was an essential qualification, I may state that there is no basis to hold that there was any regulation providing for Ph.D. Degree as the essential qualifications to exclude in service candidates, who were Master Degree-holders but without Ph.D. from the field of consideration. G.O.Ms. No. 1633, Agriculture (AA-IV) Department, dated 23.8.1984 came as a sanction to the request of the University to extend the period of five years under G.O.Ms. No. 62, Agriculture, dated 10.1.1979 by another period of three years with effect from 10.1.1984. There is no reason to reject G.O.Ms. No. 1633, Agriculture (AA-IV) Department, dated 23.8.1984. It had been issued for a purpose, the purpose being to extend the period of five years fixed by G.O.Ms. No. 62, Agriculture, dated 10.1.1979, by another period |of three years. The University would have been within its legitimate limits, in not following the Government Order until statutory regulations were amended. The Government Order could not in any manner abbreviate, aberrate or abrogate the service regulations. If the University did not do so, but instead decided to inform the Government so that the Government could decide one way or the other, it acted bona fide and with the intention of keeping the Government informed of the predicament of the in service candidates, who were yet to obtain Ph.D. Degree. The State Government's acceptance of the University's proposal is thus a sanction to the University's Act of proceeding to make appointments in accordance with the service regulations, which were not in conflict with the G.O.Ms. No. 62, Agriculture, dated 10.1.1979. A clarification of the kind in G.O.Ms. No. 1633, Agricultural (AA-IV) Department, dated 23.8.1984, should be read not as an independent document, but as the extension or a part of the G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979. It is always so with respect to every corrigendum whereby certain mistakes or errors are corrected. It is so with respect to such additions which arise on account of administrative exigencies. There is nothing retrospectivity or prospectivity in such action as in G.O.Ms. No. 1633, Agricultural (AA-IV) Department, dated 23.8.1984, since it is just an extension of G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979 beyond the period of five years with effect from 10.1.1984. That being the conclusion, it is not possible to agree with the findings of Mohan, J., that there was no law under which the University could have considered the candidature of a person, who did not have a Ph.D. Degree, but otherwise qualified for the post of Associate Professor. It is also not possible to uphold his finding that since G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979 had fixed a period of five years which period of five years had come to an end on 10.1.1984, the University was obliged to exclude the candidature of the first respondent/appellant in W.A. No. 865 of 1986, who had not obtained a Ph.D. Degree within the period of five years. Nainar Sundaram, J., has correctly held that the first respondent/appellant in W.A. No. 865 of 1986 did possess the requisite qualification and the University had made no error of law in considering his candidature and appointing him as Associate Professor. True, Nainar Sundaram, J., was dealing with a petition in which the writ petitioner/first respondent had asked for a writ of quo warranto. He had asked for quo warranto clearly camouflaging the relief of a writ in the nature oicertiorari and consequential mandamus to quash the appointment order issued by the University in favour of the first respondent/appellant in W.A. No. 865 of 1986 and to direct the University to make a fresh selection in accordance with G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979. Having lost before Nainar Sundaram, J., he had applied for review of the order rejecting his prayer for a writ of quo warranto upon the first respondent/appellant in W.A. No. 865 of 1986. While the review application was dismissed, it was observed as quoted above that the dismissal of the writ petition or the review petition should not be taken to have decided any other right of the petitioner and the scope of the main controversy adjudicated in the writ petition was limited to the issuance of a writ of quo warranto. This observation however cannot mean that the Court has to remove altogether such findings also which were rendered on the consideration of the materials on record. In Statesman (P.) Ltd. v. N.KDeb, , the Supreme Court has said:
...The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law.
In yet another case reported in University of Mysore v. Govinda Rao , the Supreme Court has said:
...Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against, the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with the law or not.
10. Precisely, for the purpose of finding out whether respondent No. 1/appellant in W.A. No. 865 of 1986 had any title to the office of Associate Professor or not, Nainar Sundaram, J., entered into the facts and found that there was no illegality in the appointment of the first respondent/appellant in W.A. No. 865 of 1986 as Associate Professor. Before Mohan, J., the same question saying that a writ of certiorari was sought for once again was raised. In Forward Construction Co. Limited and Ors. v. Prabhat Mandal (Regd.), Andheri and Ors. , the Supreme Court has said that the principles of constructive res judicata apply to writ proceedings as well. A similar view has been expressed by the Supreme Court in T. Govindaraja Mudaliar, etc. v. The State of Tamil Nadu and Ors. , as well as Ambika Prasad Mishra v. State of U.P. and Ors. . Mohan, J., was not unaware that this rule of constructive res judicata will apply to writ proceedings. He has, however, said:
...But in this case, when the files clearly disclose that during the relevant date, neither, G.O.Ms. No. 62, Agriculture Department, dated 10.1.1979 nor G.O.Ms. No. 1633, Agriculture Department, dated 23.8.1984, could apply and nor the amendment carried out to the regulations by the Board could apply. It is a matter of eligibility, which was not the subject matter, and it cannot be contended that this ought to have been put forth. From that point of view, I am unable to see how the principles of constructive res judicata would apply. Even f that apart, on general principle, when glaring instance of injustice is brought to the notice of the Court, the rights of a person cannot be defeated on such rules, which are intended to attain finality of litigation. I say injustice because, admittedly, the petitioner did possess Ph.D. Degree on that date; therefore, to disregard that claim, certainly will be unjust....
11. Was it not the question of eligibility which was considered by Nainar Sundaram, J., when he held that it is not possible to view the appointment as one in contravention of any binding rule of law or any provision having the force of law? Mohan, J., was not sitting in appeal over the judgment of Nainar Sundaram, J. He could not reverse the finding of fact recorded by Nainar Sundaram, J., Mohan, J., was under the impression that the question whether there was relevant statute or G.O., which would enable the first respondent/appellant in W.A. No. 865 of 1986 to put forth his claim was never agitated before Nainar Sundaram, J., a question agitated before him. He has evidently made error about it. The Court's power under Article 226 of the Constitution of India to inquire into the facts on which a writ of certiorari and consequential mandamus is asked for is not different from its jurisdiction to inquire into such facts in a case in which a writ of quo warranto is asked for. A Court may refuse to issue a writ of quo warranto if it is found that the person whose appointment is under challenge could be re-appointed under the law in force at the time of the issuance of the writ or on account of his becoming qualified for such appointment on that day P.L. Lakhanpal v. A.N. Ray A.I.R. 1975 Del. 66. The Court is required to see in each case, should the petitioner be given the relief in the nature of quo warranto or not? But enquiry into the facts either for a writ of quo warranto or for a writ of certiorari or mandamus is one and the same. Even in England where the Courts evolved rules as to various types of writs that they issued, they are consistent on the aspect that irrespective of the nature of writ sought for, the Court's jurisdiction to hold enquiry into the facts is one and the same Rex V. Speyer v. Rex v. Cassel (1916) 1 K.B. 595. This principle has also been recognised by the Supreme Court in the case of State of Haryana v. Haryana Co-operative Transport . A contention which could be raised and made the basis for the challenge of the appointment of the first respondent/appellant in W.A. No. 865 of 1986 and which was available to the writ petitioner at the time of his moving the Court for a writ of quo warranto but not raised, would be deemed to have been decided against the writ petitioner. One may profitably here take notice of Explanation IV to Section 11 of the Code of Civil Procedure. Though the Code of Civil Procedure would not apply as such to a writ proceeding, it must always be remembered that the constructive res judicata is the extension of the res judicata rule recognised under Section 11 of the Code of Civil Procedure. Explanation IV states:
Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Reference may be made to a judgment of this Court reported in Sinna Subba Goundan v. Rangai Goundan (1945) 2 M.L.J. 384 : A.I.R 1946 Mad. 141, wherein in a proceeding under the Provincial Insolvency Act, it was decided that the property in dispute was the self-acquisition of the respondent's father and that the sons had no right and it was further held that even if they had such rights, they should be established by a separate suit. One of the sons thereafter filed a suit. Chandrasekhara Aiyar, J., in the judgment said:
It is contended for the appellant that the view taken by the learned Judge that this order in insolvency concludes the matter by reason of Section 4 of the Insolvency Act is wrong for several reasons; firstly, the jurisdiction of Section 4 was never invoked and there was as a matter of fact no decision on title given by the Court; secondly, that the Court itself stated the claim by the sons should be decided by a separate suit; and thirdly, that it was open to the Court to leave the question open in this manner. That the petition was not filed under Section 4 is obvious as it refers only to Section 5 of the Provincial Insolvency Act and Order 21, Rules 95 and 97 of the Civil Procedure Code. It also seems to be clear that there was no intention to invoke the jurisdiction of the Court under Section 4 or under Section 56(3) of the Provincial Insolvency Act. There is little doubt on the authorities as they stand at present. See Ramaswami Chettiar v. Ramaswami Iyengar 43 M.L.J. 406 : 74 I.C. 404 : A.I.R. 1923 Mad. 147 : I.L.R. 45 Mad. 434 (F.R), referred to and approved in Vadarguzal Achi v. South India Corporation (1944) 2 M.L.J. 52: A.I.R. 1944 Mad. 481 : I.L.R. 1945 Mad. 10, that the Court could have adjudicated on the question of title and it is difficult to hold that there was no such adjudication. The Court, as pointed out already, decided before directing possession to be given to the purchaser, that the properties constituted the self acquisitions of the father. This decision might have been rendered on imperfect materials and might have been based on what was called a prima facie view of the facts; but the decision was still reached, and it is only because it was held that the sons had no interest in the property that their obstruction was ordered to be removed and possession was given to the purchaser. It is true that the Court thought that a separate suit would lie and this question of title may be agitated fully there; but this opinion expressed by the Insolvency Court cannot affect the rights of parties. As has been held more than once, if there is a final and conclusive adjudication by a competent Court of any issue between the parties, a mere direction by that Court that another proceeding might be taken for having the point more adequately considered and decided is of no avail, when we have to consider a plea of res judicata...
A similar view has been expressed in Krishnaswami v. Manikka A.I.R. 1931 Mad. 268. There was thus no escape to the writ petitioner before Mohan, J., from the rule of res judicata.
12. The writ petitioner may be better qualified; may be better suited for the job; may have a superior claim for the post of Associate Professor. This was, however, for the Selection Committee to see whether to select the writ petitioner or the first respondent/appellant in W.A. No. 865 of 1986. If there has been any material available to the writ petitioner to say that selection of the first respondent/appellant in W.A. No. 865 of 1986 for the post of Associate Professor was vitiated, he was free to say so and seek adjudication. He has, however, not raised any such plea.
13. In view of my discussions and conclusions as above, I have no hesitation in holding that the impugned judgment of Mohan, J., is not sustainable and the same is accordingly set aside. The writ petition in W.P. No. 8226 of 1985 is dismissed. The writ appeals are allowed. No costs.