Madras High Court
Dr. Ganapathi Malarvizhi vs The State Of Tamil Nadu
Author: V.Parthiban
Bench: V.Parthiban
W.P.Nos.30069 of 2019 etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on 21.12.2020
Order delivered on 19.03.2021
CORAM
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.Nos.30069, 21594, 21598, 30067,
30071, 30073 & 26211 of 2019
and
W.P.Nos.5255, 6485, 5258, 13539,
13542 & 5252 of 2020
and
W.M.P.Nos.30014, 30015, 30016, 30013, 30009, 30010,
30008 & 30006 of 2019
and
W.M.P.Nos.16778, 6205, 16782, 16783, 6210,
237, 16780, 326, 486, 6208, 6212, 6214,
4559, 7681,7682, 16780, 567 & 6211 of 2020
W.P.No.30069 of 2019
Dr. Ganapathi Malarvizhi
Associate Professor,
Division of Transportation Engineering,
Department of Civil Engineering
College of Engineering, Guindy,
Anna University,
Chenni – 600 025. ..Petitioner
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W.P.Nos.30069 of 2019 etc.
Vs
1. The State of Tamil Nadu,
Rep. by its Secretary,
Department of Higher Education,
Fort St.George,
Chennai – 600 009.
2. The Director of Technical Education,
DOTE Campus,
Chennai – 600 025.
3. The Anna University,
Rep. By its Registrar,
Guindy,
Chennai – 600 025.
4. All India Council for Technical Education,
Represented by its Chairman,
7th Floor, Chanderlok Building,
Janpath, New Delhi-100 011 ... Respondents
Prayer in W.P.No.30069 of 2019
Writ Petition filed under Article 226 of the Constitution of India
praying Writ of Certiorarified Mandamus calling for the records relating to
impugned Syndicate Resolutions of the 3rd respondent University
Nos.249.13 dated 03.09.2018 and 250.7 dated 09.11.2018 and quash the
same insofar as it relates to the petitioner herein and further direct the 3rd
respondent university to give promotion to the petitioner forthwith as
Associate Professor w.e.f. 11.12.2013 and Professor w.e.f. 11.12.2016 in
terms of the University Notifications dated 29.06.2017 and 18.07.2017 with
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all attendant benefits including seniority and arrears of salary and
allowances.
For Petitioners in
WP Nos.30069, 30067, 30071
& 30073/2019, 5255, 5252, 6485,
5258, 13539 & 13542/2020 :Mr. Isaac Mohanlal
Senior Counsel
for M/s. Isaac Chambers
For Petitioners in
W.P.Nos.21594, 21598 & 26211/2019 : Mr.AR.L.Sundaresan,
Senior Counsel
for AR.M.Arunachalam
For Respondents 1 & 2
in all the W.Ps : Mr.V.Kathirvelu,
Special Government Pleader
rd
For 3 respondents in
W.P.Nos.5255, 6485, 5258/2020
& 30071 & 30073/2019 : Mrs.Narmada Sampath
Additional Advocate General
assisted by
Mr.M.Vijay Kumar
Standing Counsel
rd
For 3 respondents in
W.P.Nos. 5252, 30069, 21594, 21598,
30067 & 26211 of 2019 &
W.Ps. 13539, & 13542 of 2020 : Mrs.Narmada Sampath
Additional Advocate General
assisted by
Mr.L.P.Shanmugasundram
Special Government Pleader.
For 4th respondent in all W.Ps. : Mr.B.Rabu Manohar
Standing Counsel
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COMMON ORDER
The matter is taken up through web hearing.
In all these writ petitions, the petitioners raised common grounds of challenge with identical and common grievances against the action of the 3rd respondent University and therefore, the writ petitions are disposed of by a common order as under.
2. There are two categories of writ petitioners in this batch, one aspiring to be promoted from the post of Assistant Professor to the post of Associate Professor and the other from the post of Associate Professor to the post of Professor. All the writ petitioners are the faculty of the 3 rd respondent, the Anna University.
3. Their common grievance in these writ petitions is that with regard to promotion from the post of Assistant Professor to Associate Professor and from the post of Associate Professor to Professor, the University invited applications from the eligible faculty members for consideration of their claim under Career Advancement Scheme hereinafter referred to CAS. According to these petitioners, they had been invited applications vide Page No.4/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. communication dated 29.06.2017 and 18.07.2017. The petitioners herein, being fully eligible for consideration in terms of the Career Advancement Scheme (CAS) for promotion from the post of Assistant Professor to Associate Professor or from the post of Associate Professor to Professor, as the case may be, applied for consideration of their candidatures on 18.07.2017 through Online. Thereafter, the petitioners were called for presentation and interview, which was scheduled on 02.08.2018 vide communication dated 25.07.2018. The petitioners herein participated in the presentation and interview on the scheduled date. According to the petitioners, after presentation and interview, there was no communication from the University authorities and therefore, representations had been submitted by them in November and December, 2018 and also in February, 2019 as to the outcome of the selection. However, in the meanwhile, the petitioners claim to have come across two Resolutions passed by the University Syndicate that new conditions had been introduced for promotion from the post of Assistant Professor to Associate Professor (Stage 3 to Stage
4) and from the post of Associate Professor to Professor (Stage 4 to Stage 5). Page No.5/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. The contents of the Resolutions passed by the Syndicate and adoption of its Minutes dated 03.09.2018 and 09.11.2018 are referred to infra.
4. The petitioners are hereby aggrieved by the introduction of additional qualification as extracted above after completion of selection process for their promotion under the CAS. According to the petitioners, the University cannot introduce additional qualification or eligibility criterion contrary to what was in existence at the time of their participation in the selection and completion of the selection in entirety. In a nutshell, the sum and substance of the objection is Rules of the game cannot be changed after the game was over.
5. On behalf of the petitioners, Mr.Issac Mohanlal and Mr.AR.L.Sundaresan, learned senior counsels appeared, who were assisted by the respective instructing counsels. On behalf of the University Ms.Narmadha Sampath, learned Additional Advocate General appeared, duly instructed by the respective Standing counsels, Page No.6/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. Mr.L.P.Shanmugasundaram and Mr.M.Vijayakumar.
6. Mr.Issac Mohanlal, learned Senior Counsel appearing for the majority of the writ petitioners, at the outset, would submit that the University is estopped from changing the criteria after the selection was over detrimental to the promotional prospects of the candidates concerned. According to the learned Senior Counsel, the last date for submission of application for the subject selection was 31.07.2017. Thereafter, presentation and interview was conducted on 02.08.2018. Thus, the process of selection was completed by August, 2018. But unfortunately, without taking a final call by declaring the results of the selection, the University subsequently passed a resolutions on 03.09.2018 and 09.11.2018 by introducing additional qualifications or eligibility criteria which are per se arbitrary, irrational, unreasonable and are also contrary to the AICTE notification and AICTE norms.
7. The two Resolutions of the Minutes of the University Syndicate Page No.7/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. in its meeting held on 03.09.2018 and 09.11.2018 are extracted hereunder.
i) The Minutes of the Syndicate dated 03.09.2018.
MINUTES RESOLVED TO APPROVE the minutes of the meeting of the Chairpersons of the Faculties, Registrar with the Vice- Chancellor and the recommendations made thereon with regard to the fixation of norms for promotion under Career Advancement Scheme (CAS) for the movements from
(a) Assistant Professor (Stage 3) to Associate Professor (Stage 4) In addition to the minimum qualification prescribed by AICTE in Regulations 2021, for the promotion of Teachers under Career Advancement Scheme (CAS), the date of promotion of the candidate (s) shall be effective from the date of their eligibility under CAS or from the date on which she/h is recognized as Ph.D. Supervisor (by Anna University) whichever is later.
(b) Associate Professor (Stage 4) to Professor (Stage
5) In addition to the minimum qualification prescribed by AICTE in Regulations 2012, for the promotion of Teachers under Career Advancement Scheme (CAS), the promotion of the candidate(s) shall be considered if, she/ he has guided (singly or jointly) atleast one Ph.D. Scholar and completed successfully the Viva-Voce Examination of the Scholar. Further, the promotion shall be effective from the date of their eligibility under CAS or the date of completion of Viva-Voce of Page No.8/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. her/ his first Ph.D. Student, whichever is later.
RESOLVED FURTHER TO RATIFY the action taken based on those recommendations in the Selection Committee Meetings for the promotion of Teachers under Career Advancement Scheme (CAS) for the movements from Assistant Professor (Stage 3) to Associate Professor (Stage 4) and Associate Professor (Stage 4) to Professor (Stage 5) held during August 2018.
ii) The Minutes of the Syndicate dated 09.11.2018.
MINUTES RESOLVED TO APPROVE the Minutes of the screening-cum-Evaluation Committees and the Selection Committees for movement under Career Advancement Scheme ( C A S) from Assistant Professor Stage 1(AGP 6000) to Assistant Professor State 2 (AGP 7000). Assistant Professor Stage 2 (AGP 7000) to Assistant Professor Stage 3 (AGP 8000), Assistant Professor Stage 3 (AGP 8000) to Associate Professor Stage 4 (AGP 9000). Associate Professor Stage 4 (AGP 9000) to Professor Stage 5 (AGP 10000). (Annexure- 3 to 71) RESOLVED FURTHER TO APPROVE the promotion of the Faculty Members for movement under Career Advancement Scheme from Asst. Professor Stage 3 to Associate Professor Stage 4 as pending until the following norms are fulfilled:
"The date of promotion of the candidate(s) shall be effective from the date of their eligibility under CAS or from the date on which she/ he is recognised as PH.D. Page No.9/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. Supervisor (by Anna University), whichever is later."
The faculty considered under CAS will be promoted from the date of recognition of Ph.D. Supervisorship within one year from the date of conduct of this Syndicate Meeting.
RESOLVED FURTHER TO APPROVE the promotion of the Faculty Members for movement under Career Advancement Scheme from associate Professor Stage 4 to Professor Stage 5 as pending until the following norms are fulfilled:
"the promotion of the candidate(s) shall be considered, if she/ he has guided (singly or jointly) atleast one Ph.D. Scholar and completed successfully the Viva-Voce Examination of the Scholar. Further, the promotion shall be effective form the date of their eligibility under CAS or the date of completion of Viva-Voce of her/ his first Ph.D. student, whichever is later."
The faculty considered under CAS will be promoted form the date of Viva-voce Examination of the first student within one year from the date of conduct of this Syndicate Meeting.
8. According to the learned Senior Counsel, there are two issues which are the bone of contention. Firstly, in regard to movement from Assistant Professor Stage-3 to Associate Professor Stage-4, it is stipulated that promotion will take effect from the date of eligibility either under CAS Page No.10/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. or from the date he/she is recognised as Ph.D. Supervisor, whichever, is later. Learned Senior Counsel would submit that the above stipulation was not prescribed earlier at the time when the writ petitioners participated in the selection. Even otherwise, the learned Senior Counsel would submit that the recognition of teaching faculty as Ph.D Supervisor is entirely within the discretion of the University and even if a candidate becomes eligible under CAS, he/she cannot claim promotion in the absence of any recognition as Ph.D Supervisor. Therefore, there is possibility of arbitrariness creeping into the selection process.
9. As regards movement from Associate Professor Stage-4 to Professor Stage-5, promotion will be considered only in the event of he/she guiding atleast one Ph.D scholar and completion of successful viva voce examination of the scholar concerned. In such event, promotion to the post of Professor depends on the completion of the Ph.D. scholar being guided by the Professor concerned, regardless of the Associate Professor becoming eligible under CAS. Such condition is not only onerous but also arbitrary as Page No.11/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. movement of promotion of Associate Professor cannot be linked to the performance of the Ph.D. scholar under him or her. In any event, according to the learned Senior Counsel, this additional prescription cannot be applied to the selection which was already over.
10. The learned Senior Counsel would submit that promotions under Career Advancement Scheme (CAS) has been regulated by Central Regulatory Body AICTE by issuing instructions from time to time, which have been adopted and followed by the State Government and the University. The present promotion exercise is governed by Two Notifications of AICTE, one in 2012 and another in 2016.
11. Learned Senior Counsel would straight away draw the attention of this Court to a relevant AICTE notification dated 08.11.2012. He would refer to paragraph 2.5 of the notification. Para 2.5 of the notification reads as under.
CAS promotions from a lower grade to a higher Page No.12/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. grade of Assistant Professor/ Associate Professor shall be conducted by a "Screening-cum-
Evaluation Committee"adhering to the criteria laid out as API score in Performance based Appraisal System (PBAS) in the Tables of Appendix 1.
He then referred to Appendix I and Table I. Proposed Scores for Academic Performance Indicators (APIs) in Recruitments and Career Advancement Scheme (CAS) Promotions of University/ College Teachers CATEGORY-III: RESEARCH AND ACADEMIC CONTRIBUTION.
Brief explanation: based on the teacher's self- assessment, API scores are proposed for research and academic contributions. The minimum API score requirement by teachers from this category is different for different levels of promotion and between University and Colleges. The self-assessment score will be based on verifiable criteria and will be finalized by the screening/selection committee.
III(D) RESEARCH GUIDANCE
III(D)(i) M.Phil/ME/ Degree awarded Decree 3/each
M.Tech only awarded only candidate
III(d)(ii) Ph.D. Degree awarded Degree 10/each
awarded candidate
Thesis submitted Thesis 7/ each
submitted candidate
12. According to the learned Senior Counsel, the above requirement is what the AICTE stipulated and followed by Anna University. According Page No.13/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. to him, even the above criteria, namely API score has been dispensed with subsequently for the candidates whose promotions fall between 05.03.2010 and 07.11.2015.
13. Learned senior counsel would also refer to the G.O.Ms.No.119 dated 12.05.2017. According to the said G.O, the norms prescribed by AICTE dated 08.11.2012 has been adopted and notified and to be implemented by the Anna University and to the constituent colleges. In fact, paragraph-3 of the G.O. stipulated that all clauses of AICTE Career Advancement Scheme for the academic staff in technical institutions to be adopted except with a slight modification which of course is not material to the present lis in these writ petitions. The relevant stipulation reads as under:
“3. After careful examination, the Government have decided to adopt all clauses of the All India Council for Technical Education (Career Advancement scheme for the Teachers and other academic staff in Technical institutions) Degree) Regulations, 2012 and Clarifications on certain issues/ anomalies pertaining to qualifications, pay scales, service conditions, career advancement schemes (CAS) etc. for Teachers and other academic Staff of Technical Institutions (Degree/ Diploma) notification dated 4.1.2016 in toto, to the Page No.14/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. teachers and other Academic Staff in the University Departments of Anna University and its Constituent Colleges along with the slight modification in the following clauses:-
Clause 2.4 The Selection Committee for Direct Recruitment / Career Advancement Schemes as specified in clause 4 of the Regulations with a modification that the chairperson for the selection committee in respect of Anna University Constituent Colleges shall be the Vice Chancellor of the University.
Clause 2.6 The Screening – Cum – Evaluation Committee for Career Advancement Schemes from one AGP to the other higher AGP shall consist of the following members:- “Screening – cum – Evaluation Committee” for University Teachers.
(i) The Vice-Chancellor or Acting Vice – Chancellor or his/her Nominee, as the Chairperson of the Selection Committee;
(ii) The Chairman of the Faculty / Dean of the Campus concerned;
(iii) The Head of the Department; and
(iv) One subject expert in the concerned subject nominated by the Vice Chancellor or Acting Vice Chancellor from the University panel of experts.
“Screening – cum – Evaluation Committee” for Constituent College teachers of Anna University.
(i) The Vice-Chancellor or Acting Vice-Chancellor or his/herNominee, as the Chairperson of the Selection Committee;
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(ii) The Chairman of the concerned Faculty / Dean of Constituent College;
(iii)Head of the department concerned from Constituent College / Head of the Department from University Department; and
(iv) Two subject expert in the concerned subject nominated by the Vice Chancellor or Acting Vice Chancellor from the University panel of experts.
4. In respect of consideration to relax API Score (Degree/Diploma) between the period 5th March 2010 and issue of All India Council for Technical Education Regulation, 2012 on 8th November 2012, the All India Council for Technical Education has clarified the following in its notification dated 04.01.2016:-
“ Relaxation in API score is applicable for the period of 3 years only (till date 7.11.2015) from the issue of AICTE Regulations 2012 in official Gazette. Thereafter, API Score shall be implemented.” Hence, as clarified by AICTE if an individual becomes eligible on any date upto 7.11.2015, API score is not applicable but if an individual becomes eligible on 8.11.2015 onwards then the last one year API scoring will be applicable.
14. According to the learned Senior Counsel, the said G.O, even adopted the relaxation granted in respect Academic Performance Indicator (API) for 3 years till 07.11.2015. Learned Senior Counsel also referred to Page No.16/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. the communication of the University dated 29.06.2017 when the applications were invited from the candidates. He would draw the attention of this Court to the said communication wherein it is stated that the Teachers/ Other Academic Staff, who qualify for any of the stages between the period 05.03.2010 and 07.11.2015 and may submit CAS Application Form without API. It was also mentioned that the Teacher/ other academic staff who qualify between 05-03-2010 and 07-11-2015 are exempted from API.
15. Learned Senior Counsel would also refer to a subsequent notification issued by AICTE dated 04.01.2016 which provided for the exemption of API score for the candidates who were eligible for consideration between 05.03.2010 and 07.11.2015. As per the stipulation, API score shall be implemented only after that date. According to the learned Senior Counsel, on the date when these writ petitioners were considered, they were entitled to have the exemption applied in their cases. But unfortunately, the exemption apart, the University has come up with Page No.17/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. additional qualification after selection was over and there cannot be a better case of arbitrariness and unreasonableness in the action of the University in changing the qualifications, detrimental to the accrued interest of the petitioners.
16. As a matter of fact, the learned Senior Counsel also referred to yet another communication of the Anna University dated 18.07.2017 calling for application under CAS which mentioned the last date of submission as 31.07.2017 and also that teachers who qualify between 05.03.2010 and 07.11.2015 were to be exempted from API score.
17. Learned Senior Counsel would submit that when applications were called for by the 1st communication dated 29.06.2017 it was clearly mentioned that the Teachers/ other academic staff who qualify between 05.03.2010 and 07.11.2015 for any of the stages mentioned in Table-I were exempted from API score and the qualifications required for the movement from one stage to another stage were given in Column 4 of Table I-A. In the Page No.18/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. column, it is clearly segregated the teachers who qualify with the exemption API score namely promotion falling between 05.03.2010 and 07.11.2015 and thereafter, from 08.11.2015. Therefore, the University was very much aware that these petitioners formed a class entitled to the API exemption and therefore insisting on any further qualification which was introduced after the selection was over is per se invalid and cannot be countenanced in law. Learned Senior Counsel would also refer to subsequent AICTE notification dated 04.01.2016. The Position of API exemption has been once again reiterated by way of clarification as under.
Sl.No. Issue Clarification
38 Considering to relax API Relaxation in API score in applicable
score (Degree/ Diploma) for the period of 03 years only ( till
between 05th Mar. 2010 and date 7-11-2015) from the issue of
issue of AICTE Regulations, AICTE Regulations 2012 in Official 2012 on 8th Nov.2012. Gazette. Thereafter, API score shall be implemented.
18. According to him, it is relevant to mention that the last date of submission of the application form was 31.07.2017 prior to the impugned resolutions. Therefore, he would emphasise on the fact that at the time when the selection was set in motion and the completion of the selection prior to Page No.19/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. the resolution, the question of introducing any additional prescription did not arise in the case of these writ petitioners who were entitled to the benefit of API exemption which has been adopted by the University and also adopted by the Government vide G.O.No.119 dated 12.05.2017. It is strange that when the then existing academic qualification had been dispensed with for a particular period of time and when these petitioners had fallen within that period of exemption, the question of adding more qualification would pre se be arbitrary irrational and unsustainable.
19. Learned Senior Counsel would also submit, apart from the existing additional qualifications, there is another issue to the claim of these petitioners. Some of the petitioners in this batch of writ petitions including the writ petition represented by another learned Senior Counsel Mr.AR.L.Sundaresan, submitted that the benefit of Career Advancement Scheme has not been granted at the appropriate time without any reason despite the eligibility of the candidates concerned. It was later discovered that they had not be given the benefit of CAS, on the ground that their Page No.20/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. performance was not satisfactory.
20. According to the learned Senior Counsel minimum eligibility marks fixed by AICTE and adopted and accepted by the University is 50%. However, despite the candidates scoring above 50%, still they have not been given promotion and the University has not clarified on what basis their promotion have been withheld or denied. In fact, on this aspect, Mr.AR.L.Sundaresan has also made his submissions stating that many of the candidates who had secured lesser percentage of marks had been given promotion as pointed out in the affidavit filed on behalf of the candidates.
21. In the light of the above factors, the learned Senior Counsel would submit that the impugned resolutions of the University are unsustainable in law at least for these writ petitioners who had acquired all the eligibility criteria in terms of the then existing norms at the time of their participation in the selection and completion of the same.
22. In support to his legal contentions, the learned Senior Counsel Page No.21/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. would rely on a decision of the Honourable Supreme Court of India reported in 2008(3) SCC 512 (K.Manjusree vs. State of Andhra Pradesh). He would refer to paragraphs 27 and 33 which are extracted hereunder.
27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District and Sessions Judges (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolution dated 24-7-2001 and 21-2-2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the same after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them - P.K.Rramachandra Iyer v. Union of India Umesh Chandra Shukla v. Union of India and Durgachandran Misra v. State of Orissa.
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33. The Resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.
23. Learned Senior Counsel would refer to another decision of the Hon'ble Supreme Court in 2008 (7) SCC 11 (Hemani Malhotra vs. High Page No.23/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. Court of Delhi). He would refer to paragraphs 15 and 16 which are extracted hereunder.
“15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/ qualification that the candidate should also secure minimum marks in the interview.
Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal.
16. The contention raised by the learned counsel for the respondent that the decision rendered in K.Manjusree did not notice the decisions in Ashok Kumar Yadav v. State of Haryana as well as in K.H.Siraj v. High Court Kerala and therefore, should be regarded either as decision per incuriam or should be referred to a larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether Page No.24/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned counsel for the respondent. While deciding the case of K.Manjusree the Court noticed the decisions in (1) P.K.Ramachandra Iyer v. Union of India (2) Umesh chandra Shukla v. lUnion of India and (3) Durgacharan Misra v. State of Orissa and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this court in K.Manjusree can neither be regarded as judgment per incuriam nor good case is made out by the respondent for referring the matter to the larger Bench for reconsidering the said decision.”
24. Learned Senior Counsel would also rely on a decision of the Division Bench of this Court reported in 2011 (6) CTC 801 (The Tamil Nadu Dr.M.G.R.Medical University v. P.Anand). According to him, the Division Bench of this Court in its decision has held that new guidelines framed by University which is inconsistent with the MCI Regulations which is the Central Body, regulating admissions of Medical Courses in India, was held to be repugnant by virtue of Article 254 of the Constitution of India. Page No.25/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc.
25. Learned counsel would also further rely on the decision of the Hon'ble Supreme Court reported in 2009(14) SCC 517 T.N.Computer Science BED Graduate Teachers Welfare Society v. Higher sec. School Computer Teachers Assn.). He would draw reference to paragraph No.33 which reads as under.
33. We, however, cannot hold that the subsequent decision of the Government thereby changing qualifying norms by reducing the minimum qualifying marks from 50% to 35% after the holding of the examination and at the time when the result of the examination was to be announced and thereby changing the said criteria at the verge of and towards the end of the game as justified, for we find the same as arbitrary and unjustified. This court in Hemani Malhotra v. High Court of Delhi has held that in recruitment process changing rules of the game during selection process or when it is over are not permissible.
26. The above decisions of the Hon'ble Supreme Court would clearly demonstrate the legal position that the authority cannot change the rules of the game during the recruitment process or when it was over. Second, any prescription of Rule inconsistent with the centralised controlling body, namely AICTE in this case, is invalid in law. Third, that the accrued rights of Page No.26/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. the petitioners herein cannot be undone by introducing additional eligibility criteria, detrimental to their right. In the circumstances, the impugned resolutions of the University, are liable to be interfered with.
27. Learned Senior Counsel Mr.AR.L.Sundaresan, appeared in 3 writ petitions namely, W.P.Nos.21594/2019, W.P.No.21598/2019 and W.P.No.26211/2019. According to the learned senior counsel, he adopts the arguments of the learned Senior Counsel Mr.Issac Mohanlal in respect of W.P.No.21594/2020. According to him, the writ petitioners in this writ petition are identically placed as that of the other writ petitioners represented by the learned Senior Counsel Mr.Issac Mohanlal.
28. As far as W.P.No.21598/2019 is concerned, according to the learned Senior Counsel, the University has to clarify on the factual status of the claim of the petitioners. In regard to W.P.No.26211/2019, the petitioner has been granted promotion under CAS on 19.11.2018 with effect from 23.05.2016. However, the writ petitioner is eligible to be promoted with Page No.27/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. effect from 07.02.2015 and to that extent, the writ petitioner would have to sail along with the other writ petitioners represented by the learned Senior Counsel Mr.Issac Mohanlal. But in regard to the claim of the petitioner in W.P.No.21598/2019, conclusion to be reached by the Court in the batch would also cover this claim as well, regardless of the clarification of the University.
29. On the contrary, learned Additional Advocate General, Mr.Narmadha Sampath, appeared for the University has made an elaborate submission on various aspects of the matter. She would submit that the subject promotion involved two stages of promotion (i) from Assistant Professor to Associate Professor Stage 3 to 4 and another, Associate Professor to Professor Stage 4 to 5. According to her, totally 86 candidates appeared and 64 candidates were promoted in respect of Stage 3 to 4 and in Stage 4 to 5, 161 candidates appeared and 118 candidates were eventually promoted. According to her, the Central Regulatory Body namely, in this case AICTE prescribes minimum qualifications to be followed by the Page No.28/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. Institutions come under its purview. However, it is always open to the University concerned to prescribe higher qualification than the minimum qualification prescribed by AICTE, on the basis of its own academic potential and preferences. According to her that none of the petitioners was disallowed from participating in the selection. They were given only one year time to qualify in terms of the additional qualifications prescribed under the impugned resolutions. Such qualifications in the opinion of the University are essential and mandatory to improve the quality of research and education which cannot be resisted by candidates. According to her the faculty members cannot discharge their duties as academicians on their own terms. They need to equip themselves in order to stay relevant in tune with the times. Learned Additional Advocate General would draw reference to notification of the AICTE dated 08.11.2012, particularly paragraph 2.1, which reads as follows:
2. CAREER ADVANCEMENT SCHEME:
2. A teacher who wishes to be considered for promotion under CAS may submit in writing to the University/ Page No.29/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. College the Performance Based Appraised System (PBAS)in a proforma as evolved by the concerned university/ College duly supported by all credentials as per the Academic Performance Indicator (API) guidelines (Appendix I) set out in these Regulations.
....
....
2.8 The Screening-cum-Evaluation committee on verification/ evaluation of API score secured by the candidate through the 'PBAS' methodology designed by the respective University/ Directorate of Technical Education based on these Regulations and as per the minimum requirement specified in Tables II and III of Appendix I for each of the cadre of Assistant Professor, shall recommend to the Syndicate/ Executive Council/ Board of Management of the University/ College about the suitability for the promotion of the candidate(s) under CAS for implementation.
....
....
2.12 Candidates shall offer themselves for assessment for promotion, if they fulfil the minimum API scores indicated in the appropriate API system bales by submitting an application and the required PBS proforma. They can do so three months before the due dte of the promotion if they consider themselves eligible. In any event, the University/ College concerned shall send a general circular twice a year calling for applications for CAS promotions from eligible candidates.”
30. She would also refer to the Minutes of the Meeting of the Chair Page No.30/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. persons of the faculties, Registrar, Vice Chancellor in connection with fixation of norms for promotion under CAS from Stage 3 to 4 and Stage 4 to 5 held on 27.08.2018. She would refer to the following discussions in the Minutes.
“(a) Assistant Professor (Stage 3) to Associate Professor (Stage 4) In addition to the minimum qualification prescribed by AICTE in Regulations 2021, for the promotion of Teachers under Career Advancement Scheme (CAS), the date of promotion of the candidate
(s) shall be effective from the date of their eligibility under CAS or from the date on which she/h is recognized as Ph.D. Supervisor (by Anna University) whichever is later.
(b) Associate Professor (Stage 4) to Professor (Stage 5) In addition to the minimum qualification prescribed by AICTE in Regulations 2012, for the promotion of Teachers under Career Advancement Scheme (CAS), the promotion of the candidate(s) shall be considered if, she/ he has guided (singly or jointly) atleast one Ph.D. Scholar and completed successfully the Viva-Voce Examination of the Scholar. Further, the promotion shall be effective from the date of their eligibility under CAS or the date of completion of Viva- Voce of her/ his first Ph.D. Student, whichever is later.”
31. She would therefore, emphasize the fact that the faculty Page No.31/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. members need to update their knowledge in areas of research and advanced fields and the syndicate is the competent body to introduce the relevant qualifications on the basis of advancement of various academic activities of the University.
32. The learned Additional Advocate General would acknowledge that API score exemption is required to be granted for the candidates who were entitled to such exemption and it has been factually granted to the eligible candidates. However, the prescription of the present qualifications is independent of the API scores and therefore, both cannot be linked to each other. According to her, it is a stand alone prescription which has no nexus to the API score at all and the qualifications prescribed do not come within the purview of API. In regard to the non-promotion of certain individuals teachers, it is stated that their performance in the interview was not satisfactory as the members of the interview committee felt that their publication did not measure up to the standards fixed by the Research Publication. In the face of the individual assessment in relation to different Page No.32/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. subjects, the interview committee took a decision either in promoting the candidates or withholding the promotion of the candidates. At this, when this Court specifically confronted the learned Additional Advocate General as to what is the basis of overall percentage required for the eligibility under the CAS, the learned Additional Advocate General has not been able to convince or persuade this Court with any concrete answer. In fact, this Court has repeatedly asked as to what is the bench mark evolved for evaluation of the candidates, no satisfactory answer has been forthcoming from the University nor was any material produced to the satisfaction of this Court. However, she contended that the marks given in the interview depended on the performance of the individual candidate and evaluated by the Committee in each case and the Committee has certain parameters in order to certify the candidates name for promotion. In effect, the parameters have not been uniformly adopted, as each Committee evolved its own method of assessing the candidates.
33. The sum and substance of the arguments of the learned Page No.33/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. Additional Advocate General is that there is nothing wrong in prescribing additional qualification before the promotion of the candidates and such prescription of qualification is entirely within the academic domain of the University which cannot be questioned by the faculty members. The exemption of API is for a particular period and it has been adopted and accepted by the University but the prescription of qualification is independent of API score and therefore, no exemption could be claimed by these writ petitions. Further, when particular marks have been allocated for the interview, the assessment of the candidates by the Interview Committee is on the basis of his or her performance and nowhere it is mentioned that if the candidate secure 50% of the overall marks is said to have been qualified for the benefit of CAS. In fact, in the counter affidavit, it has been clearly stated that for each Department, a different criteria of mark have been adopted and there was possibility of variations, since the interview had been conducted in a span of three months in various Departments. Therefore, she would submit that these writ petitions have no merits and liable to be dismissed.
Page No.34/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc.
34. This Court has considered the submission of the learned Senior Counsels Mr.Isaac Mohanlal and Mr.AR.L.Sundaresan, appearing on behalf of the petitioners and Mrs.Narmada Sampath, learned Additional Advocate General, appearing for the 3rd respondent/Anna University, Mr.V.Kathirvelu, learned Special Government Pleader appearing for 1st and 2nd respondents and Mr.B.Rabu Manohar, learned Standing Counsel appearing for 4th respondent.
35. The issues that are thrown upon for adjudication by this Court are whether the University is entitled to prescribe additional qualifications through the impugned resolutions when admittedly, the selection process was over in respect of these writ petitioners, much before the date of resolution, or not. The citations relied on by the learned senior counsel Mr.Isaac Mohanlal would no doubt strengthen the submissions that no additional qualification could be introduced during the selection process or after the selection process was over. However, de hors the legal principle Page No.35/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. laid down by the Courts on the subject, this Court has to take a call on whether the qualifications insisted under the resolution would be construed as introducing new or additional qualification detrimental to the accrued interest of these petitioners who had already participated in the selection and await promotion under CAS or the same were mandatory requirement for the teaching faculty in the overall interest of the academic advancement.
36. There are two main aspects to be considered in these batch of writ petitions. One is, the writ petitioners, who were covered during the exempted period of API score between 05.03.2010 to 07.11.2015. In this connection, arguments have been advanced on behalf of the petitioners, drawing reference to the various academic qualifications, which come under the purview of API on one side and on the other, the additional qualification prescribed has nothing to do with the API score and API score is minimum standard prescribed by the AICTE and it is always open to the University concerned to prescribe higher qualification to suit its particular academic requirement and potential.
Page No.36/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc.
37. In order to appreciate the rival arguments, a detail reference need to be made once again, starting from AICTE notification dated 08.11.2012. In the notification, at para 2.5, which has already been extracted supra, it is clearly mentioned that teacher who wish to be considered for promotion under CAS, shall submit Performance Based Appraisal System (PBAS), duly supported by all credential, as per the Academic Performance Indicator API in terms of Appendix I to the said Regulation. According to the Table-I of Appendix in Category III, the API provides Research and Academic Contribution, Research Guidance etc. Those API requirements have been extracted supra. From the notification, it is clear that API score included everything for the propose of seeking Career Advancement Scheme. Moreover, the promotion under CAS is not with reference to any existing promotional post, but it is personal to the candidate concerned. Any advancement which is called as promotion under CAS is in fact, an academic career progression. If the candidates fulfill the minimum requirement in their sphere of activities, in terms of what prescribed by the Page No.37/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. AICTE, the Central Regulatory Board, thus become eligible for the career advancement.
38. It is not in dispute or it cannot be disputed that the stipulations of AICTE are to be uniformly followed by all the Institutions which come under its purview. No doubt that in an University, with regard to his expansive academic potential and research, can have higher qualification tailor made to suit its singular academic aim by the University concerned. As far as the issue on hand is concerned, the right of the University to prescribe higher qualification cannot be questioned successfully by anyone particularly, Teaching members of the University. But as far as the lis in this case is concerned, this Court is called upon to decide whether it is within the right of the University to prescribe additional qualification/s when the existing API score itself was not to be applied to the candidates concerned and whether, any additional qualification even otherwise could be prescribed after the selection was over in the circumstances of the case.
39. Learned Additional Advocate General in this regard has Page No.38/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. painstakingly submit that the additional prescription have no nexus to the API score at all. This Court is not persuaded by such submission for the simple reason that the API scores cover every aspect of academic activity of the teachers and therefore, under the pretext of additional qualification, the exemption contemplated and adopted by the University cannot be diluted by indirect means.
40. It is beyond the pale of any dispute that AICTE norms have been adopted and followed by the respondent University. In fact, the Government itself has issued G.O.No.119 dated 12.05.2017 adopting the norms prescribed in the AICTE dated 08.11.2012 and subsequently on 04.01.2016. During the course of arguments, it was brought to the knowledge of this Court that Table-II(A) appended to the instructions and eligible conditions incorporated in the communication of the the University dated 18.07.2017 inviting applications for consideration of promotion under CAS. As per the Table, minimum API score requirement for promotion is 50%, out of the total weightage of 100 marks. It is not in dispute that none of the petitioners Page No.39/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. has secured lesser than 50% to become disqualified for the promotion.
41. Further, the application form itself was segregated one for the candidates who qualified for any of the stages between 05.03.2010 and 07.11.2015, without the Academic Performance Indicator (API) and another form for the academic staff who qualify for any of the stages on and after 08.11.2015, as they will be assessed with the API score. There are two aspects to be seen in the application, one is in respect of the candidates who are entitled to the grant of exemption of applying API score and this Court does not think that this category of writ petitioners could be fastened with acquiring additional eligibility criteria as stipulated by the University for their respective promotion under CAS. As regards the other candidates for whom no API exemption is not applicable, yet in the application form itself it is stipulated that the qualification is required for movement from one stage to another as given in Column 5 to Table-(A) to Table (F). Indisputably, these qualifications, alone form part of what is notified in the application. In the face of such stipulation, whether it is open to the Syndicate of the Page No.40/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. University to introduce additional qualification and make it applicable to the writ petitioners, who had already been subjected to selection and the selection process was also completed well before the impugned Resolutions were passed in September and November, 2019 is what the subject matter of consideration of this Court. It is not in dispute that the selection was over before the impugned resolution passed by the University i.e., 03.09.2018 and 09.11.2015.
42. The entire arguments advanced on behalf of the University by the learned Additional Advocate General as if the Court is attempting to sit over the judgment of the University in prescribing higher academic eligibility criterion. To allay such needless concern, it is not within the purview of this Court to make foray into the academic domain and hold that prescription of any qualification is not desirable or irrrational or arbitrary by substituting its assessment. This Court is conscious of the fact that in academic matters, it should be wary in its intervention as a matter of course. As any needless interference in such matters would amount to impermissible transgression. Page No.41/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. However, the Court can certainly embark upon legal issue as to whether additional eligibility criteria could be prescribed, when the selection itself was over and to that extent, the Courts have laid down certain consistent legal principles against the stand of the University.
43. Learned senior counsel for the petitioner has relied on the decisions extracted supra and the ratio laid down in those decisions has to be squarely applied to the factual matrix of these writ petitions. Although elaborate arguments have been advanced on behalf of the University, coming up with piece meal submission every time the matters were adjourned and heard, but it has been lost sight of that what falls for consideration before this Court is a simple issue as to whether the additional eligibility criteria prescribed by the University for improving the standards of academic excellence of the teaching faculty could be applied retrospectively after the selection was over or not. In that view of the matter, this Court has to necessarily rely on the judgments cited on behalf of the petitioners and to hold that the prescription of additional qualification, after the selection was over cannot be made applicable to these petitioners and therefore, the writ Page No.42/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. petitioners who are otherwise, fit for promotion are entitled to be promoted on the basis of the then existing qualifications either from Stage 3 to 4 or from stage 4 to 5.
44. In the consolidated counter affidavit, it has been elaborately stated that different yardsticks have been applied in each department in allocation of marks for the interview and also the performance evaluated by the committee of the candidates, varied from one department to another and no minimum bench mark or percentage has been fixed for clearing the interview.
45. In fact, as stated above, when this Court repeatedly confronted the learned Additional Advocate on this throughout the arguments, the University has not been able to come up with any definite answer but has been evasive and unforthcoming. In any event, from the averment in the consolidated counter affidavit it could be seen that no particular minimum marks have been prescribed as the basis for clearing the candidates in the Page No.43/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. interview towards their promotion. If this Court were to accept the averments contained in the counter affidavit and leave it to the varied discretion of the respective interview committee, it would only be endorsing the arbitrary method of selection on the basis of the subjective satisfaction of the members of the interview committee without any uniform prescription and bench mark for evaluating performance of the candidates at the interview.
46. This Court is is unable to appreciate as to how the interview committee can allow and disallow the candidates without evolving any particular bench mark under the pretext of the so called subjective satisfaction. In fact, the learned Senior Counsel, Mr.A.L.Sundaresan, has stated that in the affidavit filed in support of the writ petition, that several candidates who had secured lesser marks than the writ petitioners, have been selected. If the interview committee is to be given a free hand to adopt its own method of being satisfied without any uniform bench mark to be applied across the board, it could only pave way for crass arbitrariness Page No.44/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. creeping into the selection process. This Court cannot allow such arbitrariness to have a material role in the ultimate satisfaction of the members of the interview committee. Without any uniform bench mark put in place, promotions cannot be allowed to capriciously depend on the opinion formation viz., subjective satisfaction of the committee members, giving room for the personal preferences and predilection of the members in rejecting or clearing the candidates.
47.In the conspectus of the above discussion, this Court is of the considered view that the additional qualifications (eligibility criteria) introduced under the impugned resolutions dated 03.09.2018 and 09.11.2018 cannot be made applicable to these writ petitioners. The arguments that the additional qualifications prescribed have nothing to do with the API score, in the opinion of this Court, are without any merit. Such arguments are made only for the purpose of the case and therefore, liable to be rejected. When this Court is fully convinced that API score is what the minimum requirement prescribed by the AICTE and which has been adopted Page No.45/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. by the Government and the University, it is not open to the University to introduce any additional qualification by diluting the exemption benefit to the candidates who are otherwise entitled to the exemption of API score for the relevant period.
48. For the candidates who are not entitled to the grant of exemption of API score, the additional qualifications cannot be made applicable only on the ground that the selection of this candidates was already over and the qualifications that were prescribed in the application forms cannot be improved upon, after the candidates were subjected to the selection in pursuance of submission of the application forms by them, containing the eligibility criteria. The citations relied on by the learned senior counsel for the petitioners would be the answer to this conclusion by this Court.
49. In regard to the other issue namely, whether the writ petitioners concerned could be denied the benefit of promotions under CAS on the basis of the evaluation of individual performance as stated above, the over all Page No.46/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. percentage of 50 marks have been prescribed which is well established by the documents referred to in the earlier part of the decision and in any case, the University has not come up with any concrete submission as to what is the bench mark or the criterion involved for the interview. On the other hand, the averments contained in the counter affidavit filed on behalf of the University would be the admission of fact that the University has been applying different yardstick for different departments. Such varying methods of consideration would not serve the ends of justice uniformly without discrimination. Therefore, the contention on behalf of the University that on the basis of individual performance, the committee has taken decision with reference to the publication of research papers of each of the candidates is to be discountenanced as unsustainable in law. In the circumstances, a candidate securing over all 50% of the mark regardless of the marks secured in the interview need to be given the benefit of promotion under CAS.
50. In the above circumstances that the impugned proceedings viz., the Syndicate Resolutions of the 3rd respondent University Nos.249.13 and Page No.47/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. 250.7 dated 03.09.2018 and 09.11.2018 respectively are hereby set aside only insofar as it is made applicable retrospectively to these writ petitioners in respect of the selection for promotion under CAS in pursuance of inviting application vide communications dated 29.06.2017 and 18.07.2017 and all the Writ Petitions are disposed of accordingly. The respondent University is directed to pass appropriate orders by granting promotions to these writ petitioners, as per their entitlement on the basis of then existing eligibility criteria, if there are no other legal impediment against them and such order should be passed within a period of four weeks from the date of receipt of a copy of the order. No costs. Consequently, connected miscellaneous petitions are closed.
19.03.2021 Speaking/Non-speaking Index : Yes/No vsi To
1. The Secretary, Department of Higher Education, Fort St.George, Chennai – 600 009.
Page No.48/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc.
2. The Director of Technical Education, DOTE Campus, Chennai – 600 025.
3. The Anna University, Rep. By its Registrar, Guindy, Chennai – 600 025.
4. All India Council for Technical Education, Represented by its Chairman, 7th Floor, Chanderlok Building, Janpath, New Delhi-100 011 V.PARTHIBAN.J. vsi Page No.49/50 http://www.judis.nic.in W.P.Nos.30069 of 2019 etc. Pre-delivery order in W.P.Nos.30069, 21594, 21598, 30067, 30071, 30073 & 26211 of 2019 and W.P.Nos.5255, 6485, 5258, 13539, 13542 & 5252 of 2020 19.03.2021 Page No.50/50 http://www.judis.nic.in