Madras High Court
G.Muthulakshmi vs The State Of Tamil Nadu on 8 November, 2017
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.11.2017
RESERVED ON : 11.09.2017
PRONOUNCED ON : 08.11.2017
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.(MD)No.8205 of 2016
G.Muthulakshmi .. Petitioner
-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 Collegiate Education
DPI Campus, College Road
Chennai 600 006
3. The Regional Joint Director of
Collegiate Education
Tirunelveli Region
Tirunelveli
4. The Manonmaniam Sundaranar University
Abishekapatti, Tirunelveli 627 012
rep.by its Registrar
5. The Chairman
College Committee/Governing Board
Sri Parasakthi College for Women
Courtallam 627 802
Tirunelveli District
6. The Secretary
Sri Parasakthi College for Women
Courtallam 627 802
Tirunelveli District
7. Mrs.Thangaduraichi .. Respondents
Petition under Article 226 of the Constitution of India, praying for
the issue of a Writ of Declaration, declaring the selection and the
appointment of the seventh respondent herein as Assistant Professor (Tamil)
in the sixth respondent Sri Parasakthi College for Women, Courtallam as
illegal, null and void and further direct the 5th and 6th respondents to redo
the selection for the said post pursuant to the Notification in the Tamil
daily ?Dhinathanthi? dated 27.11.2015.
!For Petitioner :: Mr.Isaac Mohanlal
Senior Counsel for
Mr.T.Cibi Chakraborthy
For Respondents :: Mr.D.Muruganantham
Additional Government Pleader for R1 to 3
Mr.M.Mahaboob Athiff for
M/s Ajmal Associates for R4
Mr.T.S.Mohamed Mohideen for R6
Mr.Veera Kathiravan
Senior Counsel for
Mr.D.Venkatesh for R7
No appearance for R5
:ORDER
This writ petitioner has sought for issuance of a Writ of Declaration to declare the selection and appointment of the seventh respondent herein as Assistant Professor (Tamil) in the sixth respondent college, namely, Sri Parasakthi College for Women, Courtallam as illegal, null and void and for a further direction to the respondents 5 & 6, namely, Chairman, College Committee/Governing Board, Sri Parasakthi College for Women and Secretary of the same college to re-do the selection for the said post, pursuant to the notification given in Tamil daily ?Daily Thanthi? dated 27.12.2015 and pass such further or other suitable orders.
2. Mr.Isaac Mohanlal, learned senior counsel for the petitioner submitted that the petitioner has acquired her Bachelor's Degree in Tamil, Post Graduate Degree in Tamil, M.Phil and Ph.D (Tamil) from Sri Parasakthi College for Women, Courtallam, the sixth respondent herein. After acquiring the aforesaid qualifications, she was appointed as Guest Lecturer in the Department of Tamil in the sixth respondent college with effect from 1.12.2011 and she worked there till 2.3.2016 with the utmost satisfaction of the college authorities without any break. Having put in 4 years and 3 months of experience as Assistant Professor (Tamil) in the sixth respondent college, which is affiliated to Manonmaniam Sundaranar University, the fourth respondent herein, on seeing the advertisement in the Tamil daily ?Daily Thanthi? dated 27.11.2015 inviting applications for appointment to 25 posts of Assistant Professors and one post of Librarian, fixing the last date for submission of the applications on 11.12.2015, the petitioner, being an eligible candidate for the post of Assistant Professor (Tamil), submitted her application under the MBC category on 4.12.2015 enclosing all her educational qualifications and other details including the experience certificate issued by Sri Parasakthi College for Women, Courtallam. Subsequently, the college also invited the petitioner for interview through a call letter bearing Ka.No.A3/380/2015-16 dated 12.2.2016 informing the time and venue for interview at 10.00 A.M., on 1.3.2016 in the college premises of the sixth respondent. Mr.Isaac Mohanlal further submitted that as per the information, 165 applications were received for the post of Assistant Professor in Tamil and in addition, the employment exchange also sponsored a list of 28 eligible candidates, of which around 84 participated in the interview and for all the posts, interview were held for three days from 29.2.2016 to 2.3.2016. Since the petitioner applied to the post of Assistant Professor (Tamil) in the Department of Tamil, interview took place for two days on 29.2.2016 and 1.3.2016 and the petitioner also appeared for the interview on 1.3.2016 at 10.00 A.M. During the interview, she was also asked to produce all the original educational certificates, which she accordingly produced, whereas the interview was conducted for less than five minutes. However, the petitioner fared well in the interview and answered all the questions rightly to the full satisfaction of the selection committee and on completion of the interview, she was informed that the results would be intimated soon. However, to her shock and surprise, on the very following day viz., on 3.3.2016, the appointment orders were issued for 23 posts and all the selected candidates also joined duty on 4.3.2016 and for want of eligible members, three posts are yet to be filled up. Since the seventh respondent Mrs.Thangaduraichi was selected and appointed to the post of Assistant Professor (Tamil) under the MBC category, the petitioner approached the sixth respondent college to provide the details of the selection process and the marks awarded to each candidate. But the college refused to provide the same. Hence, an application was made to the Principal of the college under the Right to Information Act on 15.3.2016 requesting to provide the details of the selection process. The Principal, in his reply dated 7.4.2016, without even mentioning the method of selection and the award of marks and how the merit and ability of the candidates were assessed, simply made a mention in the reply that the candidates were selected on the basis of merit and ability. With regard to the second question as to who issued the appointment order and the mode of communicating the same, the Principal replied that the appointment orders were issued by the Secretary of the college and the same were also communicated to the candidates through registered post. However, the appointment order of the seventh respondent was not furnished to the petitioner. Moreover, the marks awarded to the candidates and the copies of the certificates and further details as to the conduct of the governing board after the interview, were not provided. Therefore, the petitioner filed applications under the Right to Information Act on 13.4.2016 and 15.4.2016 seeking for the aforementioned details. However, there is no reply till now, it is pleaded.
3. Arguing further, the learned senior counsel submitted that in the reply sent by the sixth respondent college, it was found that the appointment orders were issued on 3.3.2016 by the Secretary of the college and all the candidates also joined duty on the very next day, namely, 4.3.2016 and there was an admission in the reply that no Appointment Committee was convened after the interview. Emphasizing further, Mr.Isaac Mohanlal further argued that there was a local holiday on 3.3.2016 in the districts of Tirunelveli, Thoothukudi and Kanyakumari due to the birth anniversary of Swamithoppu Ayya Vaikuntaswamy and the sixth respondent college also announced a holiday on that day. While so, it is not known how the appointment orders were issued on that day through registered post and it is a mystery as to how the appointees joined duty on 4.3.2016 after receiving the appointment orders from outside Tirunelveli district. The above chain of events would make it quite evident that the entire selection process was made only as an eye-wash and the appointment orders were issued selectively for the candidates who were already selected by the management. Moreover, in the case of direct recruitment to the post of Assistant Professor, the selection should be on the basis of merit and ability, because, as per the UGC norms, the vacancies should be notified through all India advertisement. While so, the act of the sixth respondent inviting candidates only at the regional level through advertisement in the Tamil daily ?Daily Thanthi? dated 27.11.2015 is patently illegal. Contending further, the learned senior counsel submitted that when the sixth respondent conducted the selection merely based on the oral interview and without awarding marks, the appointments made are illegal. Therefore, the selection and appointment of the seventh respondent for the post of Assistant Professor (Tamil) in the sixth respondent college on the basis of the notification dated 27.11.2015 is illegal and null and void. Moreover, the appointment orders were issued by the Secretary of the college without convening the Appointment Committee or the Governing Board's resolution. Besides, when there was a local holiday announced to the districts of Tirunelveli, Thoothukudi and Kanyakumari on 3.3.2016 due to the birth anniversary of Swamithoppu Ayya Vaikuntaswamy, the Secretary of the sixth respondent college issuing appointment orders on 3.3.2016 through registered post and the immediate joining of the selected candidates on the very next day i.e., 4.3.2016 at 10.00 A.M., including the candidates residing outside the district of Tirunelveli, creates a doubt in the selection process. Referring to the comparative merits of the petitioner and the seventh respondent, it was stated that the committee ought to have seen that the petitioner passed B.A.(Tamil), M.A.(Tamil), M.Phil and Ph.D in regular course and also attended several seminars with 14 publications, whereas the seventh respondent had her U.G., and P.G.Degrees in Distance Education and not even completed Ph.D. Moreover, the selection committee ought to have seen that the petitioner has got 4 years and 3 months of teaching experience as Guest Lecturer in the sixth respondent college, whereas the seventh respondent joined the college as Guest Lecturer only in February, 2016. But she has been selected and appointed. When the petitioner is better qualified, meritorious and more suitable than that of the seventh respondent, the appointment now made by the sixth respondent is not on the basis of merit and ability, but on the basis of extraneous consideration. Therefore, the appointment of the seventh respondent should be set aside, he pleaded.
4. A detailed counter affidavit has been filed by the fifth and sixth respondents. Mr.T.S.Mohamed Mohideen, learned counsel for the sixth respondent, refuting the above allegations, submitted that Sri Parasakthi College for Women, Courtallam is an autonomous college affiliated to Manonmaniam Sundaranar University, Tirunelveli and is functioning under the control of the H.R. & C.E. Department. Since 25 vacancies in the teaching posts and one Librarian post were not filled up for a long time, the college sought permission for appointment of 25 teaching staff and one Librarian from the Director of Collegiate Education, Chennai. On receipt of permission, the sixth respondent college made an advertisement in the Tamil daily ?Daily Thanthi? on 27.11.2015 inviting applications from the eligible candidates for the said posts. The sixth respondent college also requested the District Employment Exchange and finally in respect of six posts of Assistant Professors in Tamil, 146 applications were received. In addition thereto, 30 names were sponsored by the employment exchange. Out of 146 applications received, 84 of them attended the interview. Similarly, out of 30 names sponsored by the employment exchange, 13 attended the interview and the interview were held on 29.2.2016 and 1.3.2016. Among these 97 candidates, 15 belonged to MBC category including the petitioner. The selection committee, after completion of the interview, finalized the list of candidates for appointment. So far as the post of Assistant Professor in Tamil is concerned, seventh respondent was found more suitable, therefore, she was selected on the basis of pure merit and performance in the interview. Referring to the local holiday on 3.3.2016, Mr.Mohamed Mohideen submitted that when 3.3.2016 was declared as a local holiday only for Tirunelveli district due to birth anniversary of Swamithoppu Ayya Vaikuntaswamy, however, in view of the urgency, since the vacancies were not filled up for a long time from 2010, as a result the students were also affected due to shortage of staff in each department, the appointment of 23 teaching staff in the college were considered on urgent basis and the college committee meeting held on 3.3.2016 at 10.30 A.M., in the H.R. & C.E., office at Chennai approved the list of candidates selected by the selection committee, because there was no holiday at the headquarters at Chennai. Based on the meeting held at Chennai where there was no holiday on 3.3.2016, the appointment of teaching staff were approved by the college committee in subject no.6 and passed a resolution in the meeting and the appointment orders were sent through speed post on that day from Chennai. Moreover, the candidates were also informed through telephone about their selection and their immediate reporting for duty. Accordingly, all the candidates had joined the service on 4.3.2016. When there is no separate Appointment Committee, there is no question of convening any meeting of Appointment Committee. Since the Secretary is the pay drawing authority of the college, he is empowered to issue the appointment orders to all the teaching staff including the Principal and the selection process was also carried by the selection committee which was properly formed and approved by the college committee, in which the Commissioner of H.R. & C.E., is the Chairman/President and the Governing body of the sixth respondent college is not involved in approving the selection committee and appointing the teaching staff.
5. Meeting another contention of the petitioner that within a short while the candidates were selected, Mr.Mohamed Mohideen further submitted that although both the petitioner and the seventh respondent participated and that the petitioner is said to have answered all the questions, the selection committee has found the performance made by the seventh respondent as better than the petitioner. Therefore, having been satisfied with the manner in which the interview was conducted by the selection committee and the seventh respondent's performance before the committee was better than the petitioner, the seventh respondent has been selected as Assistant Professor in Tamil. Hence the petitioner is estopped from questioning the interview by the selection committee at a later point of time, more particularly, when she was not selected. Coming to the educational qualification for the post of Assistant Professor (Tamil), Mr.Mohamed Mohideen submitted that the petitioner cannot be selected at all, as she is ineligible in terms of the educational qualification. When the selection committee conducted the interview process for all the candidates to assess the merit and ability of each candidate, the petitioner had U.G., P.G., M.Phil and Ph.D Degrees, but she has not passed the NET, which is a pre-requisite for the post of Assistant Professor. Whereas the seventh respondent has passed B.A.Tamil, M.A.Tamil, M.Phil and passed the NET with first class apart from undergoing her Ph.D at the relevant point of time. In addition thereto, she has also passed the Diploma in Epigraphy with second class and also passed the Diploma in Tamil Pandit training with second class. These additional qualifications possessed by the seventh respondent satisfied the selection committee for her appointment. Adding further, he submitted that although the petitioner claims that she has obtained Ph.D at the relevant point of time, the Supreme Court in P.Susheela and others v. University Grants Commission and others, (2015) 8 SCC 129 has held that even the Ph.D holders who were awarded Ph.D degrees prior to 31.12.2009 cannot have a legitimate expectation to be considered for appointment to the teaching posts in Universities without obtaining the NET qualification. When the petitioner has completed her Ph.D only in the year 2011, as per the UGC norms, she is not entitled to participate in the interview for the post of Assistant Professor (Tamil). Concluding his arguments, Mr.Mohamed Mohideen submitted that when the petitioner is not eligible, as she has not qualified the NET which is the minimum eligibility condition for appointment of Lecturer/Assistant Professor, she is not legally entitled to challenge the selection process. Secondly, as per the settled legal position, when the petitioner had already accepted the notification and participated in the selection process, she cannot challenge the selection as a non-selected candidate. Thirdly, it was contended that in the matter of appointment and selection by an expert committee consisting of qualified persons in the particular field, normally the Court should be slow to interfere with the opinion expressed by the experts, unless there is an allegation of mala fides against the experts who had constituted the selection committee. When the expert selection committee has evaluated the performance of the petitioner and the seventh respondent and awarded marks, the Court cannot sit in the mind of the selection committee and replace their judgment. Taking support from the judgment of the Apex Court in the case of Sajeesh Babu.K v. N.K.Santhosh and others, (2012) 12 SCC 106, it was pleaded that it would be normally wise and safe for the Courts to leave the decision of the selection of this nature to the experts who are more familiar with the technicalities and the nature of the work.
6. The seventh respondent has also filed a counter affidavit through vacate stay petition to vacate the interim order granted in W.M.P.(MD) No.6667 of 2016 in W.P.(MD) No.8205 of 2016 daed 26.4.2016. Mr.Veera Kathiravan, learned senior counsel appearing for the seventh respondent, urging this Court to dismiss the writ petition, submitted that the petitioner having completed her Ph.D only in the year 2011, she is not at all eligible to participate in the interview for the post of Assistant Professor (Tamil), since, as per the UGC norms, the candidates who have passed NET/SLET like the seventh respondent are alone eligible. Arguing further, Mr.Veera Kathiravan submitted that the petitioner being an unsuccessful candidate, having participated in the interview conduced by the expert committee, now cannot question the correctness of the expert opinion, because it is a well settled proposition of law that the opinion of the expert committee shall not be subjected for judicial review, unless it is proved that the same is biased. Moreover, the petitioner has not challenged the notification dated 27.11.2015 made in ?Daily Thanthi? and without challenging the notification, she cannot maintain the writ petition questioning the selection and appointment of the seventh respondent to the post of Assistant Professor (Tamil) alone. When the notification was issued by the respondents 5 & 6 on 27.11.2015 for 25 posts of Assistant Professors and one post of Librarian, meeting the allegation of mala fides and bias on the part of the respondents 5 & 6, the learned senior counsel for the seventh respondent submitted that after issuing the notification in the local Tamil daily ?Daily Thanthi? inviting applications, 146 applications were received out of which 84 attended the interview. To show that the respondents 5 & 6 have acted fairly without any mala fide, they have also informed the District Employment Exchange to sponsor the eligible candidates. Accordingly, the employment exchange also sponsored a list containing 30 names and among them, 13 attended the interview. Had the respondents 5 & 6 decided to pick and choose their candidates, they would not have invited applications from the employment exchange in addition to the notification issued in the daily newspaper. Having noticed that 97 candidates have responded, interview were held on 29.2.2016 and 1.3.2016. Therefore, it is incorrect on the part of the petitioner to say that as an eye-wash the interview was conducted. If the college committee/governing board, as contended by the petitioner, decided to pick up their own people, they need not have requested the employment exchange to sponsor more number of eligible candidates. Again Mr.Veera Kathiravan, replying to the contention made by the learned senior counsel for the petitioner that the appointments were made in a hurried manner on a local holiday, has submitted that 3.3.2016 was declared as a local holiday only for three districts, whereas the selection committee meeting was held in Chennai where there was no holiday on 3.3.2016. The appointment of the teaching staff was approved by the college committee and the seventh respondent and other selected candidates were informed through registered post and also through telephone to join the posts in view of the long gap in filling up of the said post from 2010. When the respondents 5 & 6 have acted bona fide to fill up the vacancies, the petitioner cannot find fault with them.
7. Coming to the comparative educational qualification possessed by the petitioner and the seventh respondent, the learned senior counsel submitted that the petitioner has got B.A.,M.A.,M.Phil and Ph.D, whereas the seventh respondent has got B.A.,M.A.,M.Phil and while undergoing Ph.D at the relevant point of time, she has also obtained two more additional qualifications, namely, passed the Diploma in Epigraphy (study of inscriptions) with second class and passed the Diploma in Tamil Pandit training with second class. When the seventh respondent at the relevant point of time has passed the requisite NET with first class, which was not possessed by the petitioner, and also acquired two more additional qualifications, namely, Diploma in Epigraphy and Diploma in Tamil Pandit training, the selection committee, while interviewing the seventh respondent, has found her better and meritorious than the petitioner. Concluding his arguments, he submitted that as per the UGC regulations, when there is no Appointment Committee, only the selection committee is entitled to issue the appointment orders. Finally when the selection committee has issued the appointment orders to fill up 25 posts of teaching staff, except the seventh respondent's appointment, all the appointments made by the selection committee were approved by the Manonmaniam Sundaranar University, the fourth respondent herein, because they were all in order as per the University regulations. While so, the non approval of the appointment of the seventh respondent, who has been working from 4.3.2016 onwards without salary, is not proper. Since there was an order obtained by the petitioner on 26.4.2016 against the seventh respondent, she is not able to get her monthly salary, resultantly, she has been put to mental agony. While she has been working as Assistant Professor (Tamil) pursuant to the appointment order, in view of the non payment of the monthly salary, she is not able to meet out her personal and family expenses. Therefore, the writ petition filed by an ineligible candidate or a candidate who is having lesser qualification than the seventh respondent shall be dismissed, he pleaded.
8. Heard the learned counsel for the parties.
9. Noticing that 25 vacancies for the teaching staff and one vacancy of Librarian were pending from 2010 in Sri Parasakthi College for Women, Courtallam, the sixth respondent herein, which is affiliated to Manonmaniam Sundaranar University, Tirunelveli, the fifth respondent herein, functioning under the control of H.R. & C.E., Department, on receipt of permission for filling up of 25 vacancies of teaching staff and one vacancy of Librarian from the Directorate of Collegiate Education, Chennai, issued an advertisement in the Tamil daily ?Daily Thanthi? newspaper on 27.11.2015 inviting applications from the eligible candidates for the aforementioned posts fixing the qualifications therefor. In addition to the advertisement made in the Tamil daily, the college also requested a list of candidates from the employment exchange. Accordingly, in respect of six posts of Assistant Professors in Tamil, 146 applications were received and 84 of them attended the interview and besides 30 candidates were sponsored by the employment exchange and among them, 13 attended the interview. In view of the large number of candidates responding to the advertisement, interview were held on 29.2.2016 and 1.3.2016. Out of 97 candidates, 15 belonged to MBC category, to which the petitioner and the seventh respondent made their claim. The notification further mentions that the scale of pay and qualifications for the said posts would be as per the UGC regulations, 2010 for the post of Assistant Professor (Tamil). Now the selection committee has finalised the list of candidates and also appointed the seventh respondent as Assistant Professor (Tamil) in Sri Parasakthi College for Women, Courtallam.
10. Admittedly, on the date of notification dated 27.11.2015 and also on the dates of interview on 29.2.2016 and 1.3.2016, a pass in NET/SLET/SET was the requisite qualification for the post of Assistant Professor, apart from U.G.,P.G.,M.Phil Degrees. Even if a candidate was awarded Ph.D degree prior to 31.12.2009, without a pass in NET/SLET/SET, a candidate is held ineligible to apply for the post of Assistant Professor (Tamil), in the light of the Division Bench judgment of this Court, which was confirmed by the Supreme Court.
11. The crucial qualification issue as to whether a Ph.D holder is entitled to get exemption from passing the NET/SLET/SET for appointment as Assistant Professor is no longer res integra. The Hon'ble Division Bench of this Court in P.Susheela and others v. University Grants Commission represented by its Chairman, New Delhi and another, 2011 (2) CTC 593 has held in paragraph-49 that the NET/SLET should be retained as compulsory requirement for appointment of Lecturers irrespective of the candidates possessing degree in M.Phil or Ph.D, holding further that the Central Government has rightly refused to approve the decision of the University Grants Commission to give relaxation to certain candidates possessing M.Phil or Ph.D from appearing in NET/SLET examination, without considering the object and purpose of raising the standard of education, rather the decision is lawful and based on public interest. The relevant paragraph of the judment of the Division Bench reads as follows:-
?49. In the light of the principles laid down by the Supreme Court, we have no hesitation in holding that the principles of Legitimate Expectation will have no application to the facts and circumstances of the present case. As noticed above, the Government of India, Ministry of Human Resources felt the need to introduce NET as compulsory for the purpose of appointment of teaching post in order to upgrade the standard of teaching. For that purpose, Expert Committees were constituted consisting of eminent experts and academicians, who recommended that NET/SLET should be retained as compulsory requirement for appointment of lecturers irrespective of the candidates possessing degree in M.Phiil or Ph.D. After considering the report of Prof.Mungekar Committee, the University Grants Commission was directed to frame regulations to serve the national purpose of maintaining standards of higher education. But, the University Grants Commission, without considering the object and purpose of raising the standard of education, and without considering the global scenario, although framed regulations, but, tried to give certain relaxation to the candidates for appearing in NET/SLET examination. In our view, therefore, the Central Government has rightly refused to approve the decision of the University Grants Commission. Hence, the impugned regulation and the decision of the Central Government cannot, at any stretch of imagination, be held to be illegal, arbitrary or whimsical, rather the decision is rational and based on public interest and also national policy to upgrade the standards of education in the country.?
12. From the above ratio, it could be seen that our High Court has laid down the law that a pass in NET/SLET is a compulsory requirement for appointment of Lecturer/Assistant Professor irrespective of the candidates possessing degree in M.Phil or Ph.D and the exemption granted by the University Grants Commission to the Ph.D holders was held unlawful.
13. Even the Supreme Court, while dealing with the very same issue, in P.Susheela and others v. University Grants Commission and others, (2015) 8 SCC 129, has held as follows:-
?7. Pursuant to this directive, on 30th June, 2010, the UGC framed Regulations of 2010, para 3.3.1 of which states:
?3.3.1. NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions.
Provided however, that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor equivalent positions in Universities/Colleges/ Institutions.?
8. By two resolutions dated 12.8.2010 and 27.9.2010, the UGC opined that since the regulations are prospective in nature, all candidates having M. Phil. degree on or before 10.7.2009 and all persons who obtained the Ph.D. degree on or before 31.12.2009 and had registered themselves for the Ph.D. before this date, but are awarded such degree subsequently shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor.
9. The Central Government, however, by letter dated 3.11.2010 informed the UGC that they were unable to agree with the decision of the Commission and stated that consequently a candidate seeking appointment to the post of Lecturer/Assistant Professor must fulfill the minimum qualifications prescribed by the UGC including the minimum eligibility condition of having passed the NET test.
10. The learned counsel assailing the Delhi, Madras and Rajasthan High Court judgments argued that Section 26(3) expressly entitles a regulation to be prospective but so as not to prejudicially affect the interests of any person to whom such regulation may be applicable. They, therefore, argued that both under Article 14 as well as this sub-section, since all M.Phil. and Ph.D. holders had been repeatedly assured that they would be exempt from passing the NET exam if they were such holders prior to 2009, the regulations should not be so construed as to impose the burden of this examination upon them.
They further argued that under Section 26(2), regulations made in pursuance of Section 26(1)(e) and (g) do not require the previous approval of the Central Government. Consequently, the impugned regulations are bad since they follow the dictate of the Central Government which is not required. Also, this would show that when it comes to qualifications of persons to be appointed to the teaching staff, the UGC is an expert body to whom alone such qualifications and consequently exemptions from such qualifications should be left to decide. They also argued that there is a violation of Article 14 in that unequals have been treated equally as those who passed their M. Phil. and Ph.D. degrees prior to 2009 fell in a separate class which had an intelligible differentia from those who did not so fall as has been maintained by the UGC from time to time. They strongly relied upon the judgment of this Court in University Grants Commission v. Sadhana Chaudhary (1996) 10 SCC 536 for this proposition as well as the proposition that their legitimate expectation in the matter of appointment on the post of Lecturer had been done away with.
11. On the other hand, learned counsel for the Union of India and the UGC stressed the fact that under Section 26 regulations have to be made consistently with the Act and Section 20 is very much part of the Act. Therefore, if directions on questions of policy are made by the Central Government, regulations must necessarily be subordinate to such directions. It was also pointed out that if a question arises as to whether a subject matter is a question of policy relating to national purposes, the decision of the Central Government shall be final. They then relied upon Udai Singh Dagar v. Union of India (2007) 10 SCC 306, for the proposition that a person will have the right to enter a profession only if he holds the requisite qualification and the holding of such qualification would be prospective if it is a qualification which is laid down any time before his entry into a profession.
12. It is clear that Section 26 enables the Commission to make regulations only if they are consistent with the UGC Act. This necessarily means that such regulations must conform to Section 20 of the Act and under Section 20 of the Act the Central Government is given the power to give directions on questions of policy relating to national purposes which shall guide the Commission in the discharge of its functions under the Act. It is clear, therefore, that both the directions of 12.11.2008 and 30.3.2010 are directions made pertaining to questions of policy relating to national purposes inasmuch as, being based on the Mungekar Committee Report, the Central Government felt that a common uniform nationwide test should be a minimum eligibility condition for recruitment for the appointment of Lecturer/Assistant Professors in Universities/Colleges/ Institutions. This is for the obvious reason that M. Phil. degrees or Ph.D. degrees are granted by different Universities/Institutions having differing standards of excellence. It is quite possible to conceive of M.Phil/Ph.D. degrees being granted by several Universities which did not have stringent standards of excellence. Considering as a matter of policy that the appointment of Lecturers/Assistant Professors in all institutions governed by the UGC Act (which are institutions all over the country), the need was felt to have in addition a national entrance test as a minimum eligibility condition being an additional qualification which has become necessary in view of wide disparities in the granting of M. Phil./Ph.D. degrees by various Universities/Institutions. The object sought to be achieved by these directions is clear: that all Lecturers in Universities/Colleges/Institutions governed by the UGC Act should have a certain minimum standard of excellence before they are appointed as such. These directions are not only made in exercise of powers under Section 20 of the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act. It is clear, therefore, that any regulation made under Section 26 must conform to directions issued by the Central Government under Section 20 of the Act.
16. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail.
18. The arguments based on Article 14 equally have to be rejected. It is clear that the object of the directions of the Central Government read with the UGC Regulations of 2009/2010 are to maintain excellence in standards of higher education. Keeping this object in mind, a minimum eligibility condition of passing the national eligibility test is laid down. True, there may have been exemptions laid down by UGC in the past, but the Central Government now as a matter of policy feels that any exemption would compromise the excellence of teaching standards in universities/colleges/institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this?in fact it is a core function of UGC to see that such standards do not get diluted.
25.....The other appeals from the Delhi, Madras and Rajasthan High Courts are, consequently, also dismissed. There shall be no order as to costs.?
14. The above detailed discussion made by the Apex Court makes the picture very clear that when a similar exemption was granted to M.Phil and Ph.D holders not to pass NET/SLET/SET as the minimum eligibility condition for appointment as Lecturer/Assistant Professor in universities/colleges/institutions, the Apex Court, refusing to accept the said exemption, holding that the policy of the Central Government that a common uniform nationwide test should be the minimum eligibility condition for appointment of Lecturer/Assistant Professor in universities/colleges/institutions, has made the pass in NET/SLET/SET as the minimum eligibility condition, for the obvious reason that M.Phil or Ph.D degrees are granted by different universities/institutions having differing standards of excellence, because some of the universities, which did not have stringent standards of excellence, grant this type of degrees. Therefore, as envisaged by the Central Government, the need for bringing a national entrance test as a minimum eligibility condition for appointment of Lecturer/Assistant Professor has become necessary.
15. Hence, as on today, as per the ratio laid down by the Division Bench of this Court in P.Susheela and others v. University Grants Commission, 2011 (2) CTC 593 and the judgment of the Supreme Court in P.Susheela and others v. University Grants Commission and others, (2015) 8 SCC 129, no exemption can be granted to the M.Phil or Ph.D holders from passing the NET/SLET/SET, which is the minimum eligibility condition for appointment as Lecturer/Assistant Professor in the universities/colleges/institutions.
16. It is pertinent to mention herein that the headnote-A shown in the first page of the judgment of the Apex Court in P.Susheela and others case, (2015) 8 SCC 129, prepared by the members of the editorial board, perhaps gives a wrong impression that still exemption is permissible under the proviso to Regulation 3.3.1 of the UGC Regulations, 2010. But there is no such exemption granted by the Supreme Court anywhere in the said judgment.
17. In fact, the very same issue whether a candidate is eligible to be considered without passing the NET for the post of Assistant Professor was already considered by me in W.P.(MD) No.11596 of 2014 dated 27.11.2015 (Dr.P.Chandramohan v. Madurai Kamaraj University represented by its Registrar, Madurai and others), following the judgment of the Apex Court in P.Susheela and others v. University Grants Commission and others, (2015) 8 SCC 129, holding that a candidate without passing the NET is not eligible or entitled to be considered for the post of Assistant Professor. The relevant paragraph of the said order reads as follows:-
?6. This Court finds merits in the submissions made by the learned counsel for the fourth respondent. At the outset, it may be mentioned that the petitioner has not passed the NET, which is the essential qualification for the post of Assistant Professor. No doubt the petitioner has pleaded for exemption from passing the NET. But after the judgment of the Apex Court in S.L.P.(C) Nos.36023-36032 of 2010 dated 16.3.2015 (P.Susheela and others etc., v. University Grants Commission and others etc., etc.) holding that merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right is affected, more particularly, as it would apply only at the stage of appointment, the contentions raised by the learned counsel for the petitioner that the petitioner should be considered for the post of Assistant Professor in the department of Art History, since he has got better qualification of Ph.D., cannot be accepted. As rightly contended by the learned counsel for the fourth respondent, the fourth respondent is a Gold medalist in B.F.A.(Sculpture and Art History) and also possessed M.F.A.(Sculpture and Art History), M.Phil Sculpture (Art History) apart from completing his National Eligibility Test in Visual Art History. In addition thereto, he has also completed some certificate courses and received merit certificate from Pondicherry University and also got merit scholarship from the University of Hyderabad. This apart, he had five years of teaching experience from 2006- 2010 and worked as Fine Arts lecturer at Gandhigram Rural University at Dindigul. Barring the aforementioned academic qualifications, the fourth respondent has also published a book titled 'French Heritage Sculptures in Puducherry' and also presented a paper in 'South Indian History Congress-34 Annual Session'. Besides he has also published Articles in Art journals namely ?Thol Puthaiyal?. This apart, he has organized, conducted and participated in many Art programmes creating awareness on Education, Health, Environment, Society etc., to the students and to the public. Further he has also conducted programmes to the Tsumani affected children in the areas around Pondicherry and Tamil Nadu. Considering all these credentials of the fourth respondent, the merit list prepared by the selection committee in respect of both the petitioner and the fourth respondent shows that the petitioner had secured only 277 marks, whereas the fourth respondent had secured 320 marks, therefore, the selection committee which consisted of the Chairman/Vice Chancellor and five members who are all experts having conducted the above said interview and rightly finding the fourth respondent is eligible for the post of Assistant Professor, as he has got higher marks of 320 in total, which cannot be compared with the petitioner who secured only 277 marks, selected the fourth respondent, hence, the impugned order of appointment dated 7.7.2014 issued by the first respondent appointing the fourth respondent to join duty on or before 28.7.2014 cannot be found fault with. As a matter of fact, the fourth respondent had also joined duty on 15.7.2014 and now has been working as Assistant Professor in the department of Art History in Madurai Kamaraj University. Hence this Court finds no illegality or infirmity in the impugned order of appointment, appointing the fourth respondent to the post of Assistant Professor in Madurai Kamaraj University. For the aforementioned reasons, the writ petition fails and the same is dismissed. Consequently, interim order stands vacated and the M.P.(MD)Nos.2 & 3 of 2014 are also dismissed. No costs.?
18. In the light of the law laid down by the Apex Court, the petitioner, who has not passed the NET, is clearly ineligible to compete for the post of Assistant Registrar (Tamil). Therefore, she has been rightly not selected and her non-selection cannot be questioned. Hence, the reliance placed by Mr.Isaac Mohanlal on paragraph-3 of the UGC notification dated 11.7.2016, which is given as under, ?3. The proviso prescribed under Regulation 3.3.1, 4.4.1, 4.4.2, 4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in the University Grants Commission (Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and other measures for the maintenance of standards in higher education) (3rd Amendment) Regulations, 2016 regarding exemption to the candidates registered for Ph.D programme prior to July 11, 2009 shall stand amended and be read as under:-
?Provided further, the award of degree to candidates registered for the M.Phil/Ph.D programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances/Bylaws/Regulations of the institutions awarding the degree and the Ph.D candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions subject to the fulfillment of the following conditions:-
a) Ph.D degree of the candidate awarded in regular mode only;
b) to e).....?
stating that the petitioner is very well exempted, cannot also hold good. First of all, the law laid down by the Apex Court under Article 141 clearly speaks that even if a candidate passed M.Phil or Ph.D, he/she is an ineligible candidate to become Assistant Professor without passing NET/SLET.
18.1. Secondly, when the petitioner did not pass the NET on the date of notification dated 27.11.2015 or on the date of interview, she is clearly ineligible, in view of the law laid down by the Apex Court under Article 141 of the Constitution of India upholding the judgment of the Division Bench of this Court in P.Susheela and others, 2011 (2) CTC 593.
18.2. Thirdly, even on merits, the comparative educational qualifications of the petitioner and the seventh respondent read as follows:-
Petitioner (Muthulakshmi) 7th Respondent (Thangaduraichi Qualification Percentage of marks Qualification Percentage of marks SSLC 78.20% (I Class) SSLC 84% (I Class) HSC 53.33% (II Class) HSC 80.3% (I Class) B.A.(Tamil) 61.54% (I Class) B.A.(Tamil) 57% (II Class) M.A.(Tamil) 65.86% (I Class) M.A.(Tamil) 60.3% (I Class) M.Phil 72% (I Class) M.Phil 74.7% (I Class) Ph.D Completed before selection Ph.D Undergoing now
--
Not applicable Diploma in Epigraphy 54.25% (II Class)
--
Not applicable Tamil Pandit training II Class
--
Not applicable NET 74% (I Class) From the above, it is seen that the seventh respondent has satisfied the minimum eligibility requirement of passing the NET with first class and has got two more additional qualifications, namely, a pass in Diploma in Epigraphy with second class and also Diploma in Tamil Pandit training with second class, apart from B.A.Tamil, M.A.Tamil and M.Phil degrees. Therefore, the selection committee has rightly chosen the seventh respondent and the petitioner cannot question the same.
18.3. Fourthly, the quality of performance of the candidates called for interview can be best judged on the basis of their response to the questions posed by the experts of the selection committee. The stressful argument of the learned senior counsel for the petitioner that the petitioner has passed B.A.(Tamil), M.A.(Tamil), M.Phil and also Ph.D through regular course, whereas the seventh respondent has obtained the B.A.(Tamil), M.A.(Tamil) in distance education mode, therefore, the petitioner should be considered, is also liable to fall to the ground, primarily for the reason that the petitioner has not cleared the minimum eligibility of a pass in the NET for appointment to the post of Assistant Professor. But the seventh respondent, after passing the NET, has got two more additional diplomas as mentioned above. While so, it would be normally wise and safe for the Courts to leave the decision in academic matters to the experts who are more familiar with the selection of candidates. In this context, it is pertinent to refer to the ratio laid down by the Apex Court in Sajeesh Babu. K v. N.K.Santhosh and others, (2012) 12 SCC 106, wherein the Apex Court has held as follows:-
?20. It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the three experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee.?
In the light of the above ratio, as the expert committee has evaluated the performance of the selected candidates during the course of interview and also considered the seventh respondent on the basis of her qualifications and comparative merits, I feel it is always wise and safe to leave the decision as to the selection of the seventh respondent with the experts, who are not only familiar with the qualifications possessed by the seventh respondent, but also the performance of both rival candidates.
19. Finally, Mr.Isaac Mohanlal, learned senior counsel for the petitioner also submitted that for the department of Tamil, interviews were held on two days i.e., on 29.2.2016 and 1.3.2016 and the petitioner appeared on 1.3.2016 at 10.00 A.M. When a local holiday was declared on 3.3.2016 in the districts of Tirunelveli, Thoothukudi and Kanyakumari due to the birth anniversary of Swamithoppu Ayya Vaikuntaswamy, the appointment orders were issued to the selected candidates on 3.3.2016 by the Secretary of the college and all of them joined service on 4.4.2016, therefore, the entire selection process appears to be an eye-wash.
20. This contention, no doubt, appears to be attractive, for the reason that we are habituated to see the belated response from every quarter. Suppose if the selection takes place today, the appointment orders are issued invariably after a long lapse of time, sometimes, one has to approach the High Court to get an order for declaration of results. But, this trend has changed recently. In some of the cases, to avoid unnecessary speculation like the similar contention made by the petitioner, appointment orders are all issued on the same date of interview. In the present case also, when interviews were held on 29.2.2016 and 1.3.2016, the petitioner appeared for the interview on 1.3.2016 at 10.00 A.M. Although 3.3.2016 was declared as a local holiday only in the districts of Tirunelveli, Thoothukudi and Kanyakumari due to the birth anniversary of Swamithoppu Ayya Vaikuntaswamy, as it was not a public holiday for other districts, on the basis of finalisation of the selection process, the college committee meeting was held on 3.3.2016 at 10.30 A.M., at the office of the H.R.&C.E., in Chennai to approve the list of selected candidates by the selection committee. Therefore, the local holiday declared to Tirunelveli, Thoothukudi and Kanyakumari districts cannot be the basis to assail the selection process, because, after the candidates were selected, the college committee, as usual, met at Chennai on 3.3.2016 at 10.30 A.M., and to avoid unwanted speculations, they have immediately informed the selected candidates and they joined the service on 4.3.2016. Hence the said contention is devoid of any merit. Moreover, when the selection committee has declared the results on the next date of the interview, which is a welcome step, this Court cannot discourage the same, for, there is no fault therein.
21. For all the aforesaid reasons, the writ petition fails and it is dismissed. Consequently, interim order stands vacated and the W.M.P.(MD) Nos.6667, 17705 & 17706 of 2016 are also dismissed. No costs. Needless to mention that the seventh respondent has not been paid the salary from the date of appointment. Therefore, the respondents are directed to pay the salary to the seventh respondent forthwith.
To
1. The Secretary to Government Department of Higher Education Fort St.George Chennai 600 009
2. The Director of Collegiate Education DPI Campus College Road Chennai 600 006
3. The Regional Joint Director of Collegiate Education Tirunelveli Region Tirunelveli
4. The Registrar Manonmaniam Sundaranar University Abishekapatti Tirunelveli 627 012 .