Madras High Court
R.Karthikeyan vs The Government Of Tamil Nadu on 9 April, 2014
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/04/2014 CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.P.(MD) No.19111 of 2013 and W.P.(MD) No.20644 of 2013 and M.P(MD)Nos.2, 2 & 3 of 2013 and 1 of 2014 R.Karthikeyan ... Petitioner in W.P.No. 19111 of 2013 V.Baskaran ... Petitioner in W.P.No. 20644 of 2013 Vs. 1.The Government of Tamil Nadu rep. by its Secretary Tourism, Culture and Religious Endowments (T2-2) Department Fort St. George, Secretariat Chennai 9. 2. The Director National Council for Hotel Management and Catering Technology (Ministry of Tourism) Government of India A-34, Sector 62 Noida 201 309. 3. The Chairman Board of Governors State Institute of Hotel Management and Catering Technology Thuvakkudi, Trichy 15. 4. The Additional Director (Tourism) Government of Tamil Nadu TTDC Complex, Wallajah Road Chennai 2. ... Respondents 1 to 4 in both W.Ps. 5. State Institute of Hotel Management and Catering Technology Rep. by its Principal in-charge Thuvakkudi Trichy 620 015. ... 5th Respondent in W.P.No. 19111 of 2013 Prayer in W.P.No.19111 of 2013 Writ Petition filed under Section 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus to call for the records pertaining to the impugned Government Order passed by the first respondent in G.O.Ms.No. 262, dated 23.10.2013 and the impugned notification issued by the third respondent in No.Nil dated Nil published in "The Hindu" English Newspaper on 27.10.2013, quash the same and consequently direct the respondent to follow the already existing rules in the matter of promotion to the post of Principal. Prayer in W.P.No.20644 of 2013 Writ Petition filed under Section 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus to call for the records pertaining to the impugned Government Order passed by the first respondent in G.O.(Ms) No.262 dated 23.10.2013 and the impugned notification issued by the third respondent in No.Nil dated Nil published in "The Hindu" English newspaper on 27.10.2013 quash the same and consequently direct the respondents to appoint the petitioner as the Principal of the third respondent Institution. !For Petitioners ...Mrs.J.Anandavalli for M/s.J.Nisha Banu (W.P.No.19111 of 2013) Mr.G.Sankaran (W.P.No.20644 of 2013) ^For Respondents ... Mr.K.Chellapandian Addl. Advocate General assisted by Mr.R.Anandharaj, Govt.Advocate for R1 , R3 and R4 in both W.Ps. Mr.K.K.Senthilvelan Assistant Solicitor General of India for R2 in both cases. :ORDER
In both these writ petitions, the petitioners are challenging G.O.Ms.No. 262, Tourism, Culture and Religious Endowments Department dated 23.10.2013 and the consequential notification issued by the Chairman, Board of Governors, State Institute of Hotel Management and Catering Technology, Trichy, published in "The Hindu" English newspaper on 27.10.2013. Apart from commonly challenging the said G.O. in both the writ petitions, the petitioner in W.P.No. 19111 of 2013 further seeks for a consequential relief directing the respondents to follow the already existing rules in the matter of promotion to the post of Principal and the petitioner in W.P.No.20644 of 2013 seeks for a further consequential relief directing the respondents to appoint him as the Principal of the third respondent institution.
2. The case of the petitioner in W.P.(MD) No.19111 of 2013 is as follows:-
2.1. In pursuant to G.O.Ms.No. 186 dated 1.7.1980 issued by the State of Tamil Nadu, the State Institute of Hotel Management and Catering Technology, Trichy was directed to function as an autonomous Society, registered under the Tamil Nadu Societies Registration Act, 1860. The said institution is under the control of the Board of Governors which will decide the courses that could be offered and the posts of teaching and non-teaching staff to be created.
Accordingly, when posts were created to the said institution, the post of Head of the Department was not created from the date of its inception. The teaching staff as well as official staff are working for nearly 18 to 30 years without any promotion. The petitioner is a Diploma Holder in Hotel Management and Catering Technology and Master Degree holder in Tourism Management. He was appointed as Assistant Lecturer Cum Assistant Instructor. He was promoted as Instructor cum Lecturer on 22.8.1995. He is working in the third respondent institution continuously for about 18 years with unblemished service record. Promises were given to the staff of the institution that after conclusion of the office management studies, promotion would be given to the existing staff. The Board of Governors felt that a detailed study has to be conducted on the Office management so that the Government can take appropriate steps in the matter of promotion of the existing staff. For the post of Principal, even at the time of inception, though experience as Head of Department was prescribed as a qualification, no such post of Head of Department was created and no amendment was made in the Rules till today. 2.2. On 17.6.2013 an advertisement was issued calling for applications to the post of Principal by prescribing qualifications contrary to the existing rules. Therefore, representations were made and consequently the said notification was cancelled. Thereafter, the Government issued G.O. (2D) No. 24 dated 17.10.2013, through its Personnel and Administrative Reforms (O&M) Department to study regarding promotion of the existing faculty and administration of staff members of the institution. When such task of Office Management Studies was under progress, urgently an Emergency Board Meeting was called on 18.10.2013 and consequently the impugned G.O. amending the rules was issued on 23.10.2013 denying thereby opportunity to the persons working in the institution for more than 18 to 30 years to compete to the post of Principal, by prescribing an unworkable experience qualification.
3. In so far as the writ petitioner in W.P.(MD)No.20644 of 2013 is concerned, apart from the common facts as stated in the other writ petition, the petitioner herein has further stated as follows:-
He joined the third respondent institution as an Adhoc Lecturer in the year 1986 and worked as Lecturer from 23.12.1996 to 18.11.2010. From 19.11.2010, he is working as Principal in-charge till date. He has completed three year Diploma in Hotel Management and Catering Technology in the Institute of Hotel Management and Catering Technology, Taramani, Chennai. He further completed his B.Sc., Hospitality and Hotel Administration through Tamil Nadu Open University, Chennai and also completed his Master's Degree in Business Administration in Periyar University, Salem.
4. In both these writ petitions separate counter affidavits were filed on behalf of the first and fourth respondents. As the contentions of the counter affidavit in both these matters are one and the same except on few factual aspects, they are dealt with in common and the contents of the same are extracted hereunder:-
4.1. The Hon'ble Chief Minister of Tamil Nadu desired to upgrade the State Institute of Hotel Management and Catering Technology, Tiruchirappalli on par with the Central Institute of Hotel Management and Catering Technology and wanted to make it even better than the Central Institute by making it as a National institute of excellence. For that purpose, Rs. 5 crores was announced as a special grant by the Hon'ble Chief Minister on the floor of the Assembly on 10.5.2013. In order to implement such vision, the Department of Tourism, Culture and Religious Endowments has taken several steps to revamp the working of the institution. Since only a Principal-in-charge is functioning, it was decided to recruit a regular incumbent with high quality. As per the Staff Regulations, the Board of Governors of the Institute shall from time to time determine, with the approval of the State Government, the strength of the staff both for permanent and temporary categories required for carrying out its functions. The power of creation of the posts with prescription of qualification is vested with the Board of Governors of the Institute, subject to the approval of the State Government. The post of Principal is an existing post already approved by the Government of Tamil Nadu. The Principal is not empowered to create new posts.
4.2. The petitioner in W.P.(MD) No. 19111 of 2013 is not a man with unblemished service record. A complaint given by the Principal-in-charge (the other writ petitioner in W.P.(MD) No. 20644 of 2013) dated 12.11.2013 is pending against this petitioner listing out various allegations including sexual harassment against the woman staff members. The petitioner in W.P.No. 19111 of 2013 has no locus standi to question the impugned proceedings as he is not having even the basic academic qualification of graduation. He also applied for the post of Principal in response to the impugned notification. He is not possessing 15 years of service in the managerial capacity. He has suppressed the above said fact of participating in the selection process in this writ petition. The Principal and Member Secretary has not placed any proposal for creating the post of Head of the Department in view of the decrease in student enrolment and poor financial status of the institute. 4.3. The exercise of Organisation and Methods study of the institute has got nothing to do with the process of appointment to the post of Principal.
The purpose of such study is to analyse the functioning of the institute and suggest ways to the Government to improve the institute in order to make it as a centre of excellence in hospitality education and training. The report of the Organisation and Methods study will be examined and placed before the Executive Committee and then its recommendations will be placed before the Board of Governors. The advertisement for the post of Principal issued on 17.6.2013 was cancelled based on several representations. In view of such representations, the Board decided to make some modifications like age, educational qualification and experience in the Recruitment Rules for the post of Principal. Accordingly, fresh recruitment rules for the post of Principal was approved in the 40th Meeting of Board of Governors and subsequently the Government approved the revised recruitment rules through the impugned G.O. 4.4. The State Institute of Hotel Management is a separate and autonomous body. Therefore, the State Institute and its Board of Governors are not subordinate to the National Council for Management. The qualification prescribed in the State Institute Recruitment Rules are in no way inferior to the qualifications prescribed by the National Council for Hotel Management to the post of Principal. The National Council through their letter dated 26.6.2013 has only advised to adopt the recruitment rules as designed by the Government of India for Central Institutes of Hotel Management. The writ petitioners have not fulfilled the educational as well as experience qualifications prescribed in the recruitment rules for the post of Principal. The post of Principal is always a direct recruitment post and never been a promotional post.
5. Mrs. J.Anandavalli, learned counsel appearing for the writ petitioner in W.P.No.19111 of 2013 submitted as follows:-
The 40th Board Meeting cannot take a decision to amend the rules, when already a decision was taken in 39th Board Meeting to give promotion to the existing staff. Without making office management study as per the resolution made in 39th Board Meeting, the impugned amended Rules ought not to have been made. When draft proposal was circulated, the National Council for Hotel Management objected to the same. In pursuant to the 39th Board Meeting, the Government passed G.O.(2D)No. 24 dated 17.10.2013 and appointed three persons as Research Officers to make the study. However, within three days, the impugned G.O. was passed by over looking the above process of study. When, admittedly, there is no post called Head of Department in the institution, prescribing the experience qualification as 5 years as Head of the Department is an unworkable qualification which in effect denies the right of the petitioners to be considered to the post of Principal. Having got affiliation with the National Council for Hotel Management and given an undertaking to follow the Rules of National Council, the Board of Governors cannot say that they are not bound by the National Council. In support of her submissions, the learned counsel relied on the decision reported in 2004 (5) CTC 572 (Trichy Engineering College and others Vs. Anna University and others) .
6. The learned counsel appearing for the writ petitioner in W.P.(MD) No.20644 of 2013 while adopting the arguments of the other learned counsel has further submitted that the impugned proceedings discriminate the petitioner since there are only two institutions in the State of Tamil Nadu under the control of State Government.
7. The learned Assistant Solicitor General appearing for the National Council for Hotel Management and Catering Technology, the second respondent herein, has filed a memo, based on the written instructions received from the second respondent, stating that the National Council for Hotel Management and Catering Technology is only the advisory body to maintain the quality of education and National Council has no control over the decision of the Governing Body of the State institutes. He further submitted that the second respondent has no role to play in prescribing the qualifications for recruitment to the post of Principal and the recruitment rules made by the Government of India are meant for Central Government institutions and not for State Government Institutions. He further submitted that there is no financial control by the second respondent over the third respondent institution.
8. The learned Additional Advocate General appearing for the respondents 1,3 and 4 submitted as follows:-
The post of Principal is already a created one and approved by the Government of Tamil Nadu. The 40th Board Meeting resolved with regard to the qualifications for the post of principal and such qualification can be prescribed only by the Board of Governors. The Principal can be selected only by direct recruitment and it is not a promotional post. The qualifications now prescribed is only to upgrade the quality of the institution. The petitioners having participated in the selection process by making applications to the post of Principal in pursuant to the impugned notification, cannot now challenge the selection process. In support of his submissions, the learned Additional Advocate General relied on the following decisions:-
1. 2007 (8) SCC 100 (Union of India and Others Vs. S.Vinodh Kumar and Others)
2. 1990 (1) SCC 288 (J.Rangaswamy Vs. Government of Andhra Pradesh and Others)
3. Unreported decision of the Principal Bench of this Court made in W.P.Nos. 8446 of 1997 etc., dated 9.6.2008. (M.Karnan Vs. The Presiding Officer, Labour Court, Madurai)
9. Heard the learned counsels appearing for the petitioners, the learned Additional Advocate General appearing for the respondents 1,3 and 4 and the learned Assistant Solicitor General appearing for the second respondent and perused the materials placed before this Court.
10. In both these writ petitions, the petitioners are aggrieved against the impugned Government Order approving the amendment of the rules prescribing the qualifications for the post of Principal followed by issuing paper notification inviting applications to the said post. Both the petitioners are admittedly working in the third respondent institution for several years as Instructor cum Lecturer and as Principal-in- charge, respectively. In nutshell, the objections of the petitioners against the impugned proceedings are as follows:-
(a) Based on the representations given by the staff members of the third respondent institution, the Government of Tamil Nadu passed G.O.(2D) No.24 dated 17.10.2013 through its Personnel and Administrative Reforms (O&M) Department and constituted a committee for conducting Organisation and Methods study of the Institute to promote existing faculty and administrative staff members of the institute and to fix the ratio of outside (visiting) faculty to permanent faculty. Having issued such Government Order, there is no necessity to amend the Rules hurriedly by issuing the impugned G.O. without waiting for the outcome of such study.
(b) No post called Head of Department is in existence in the third respondent institution from its inception. Therefore, prescribing minimum 5 years experience as Head of Department in Hotel operations related subject in an Institute of Hotel Management as a qualification indirectly denies the right of the petitioners to compete to the post of Principal.
(c) In the absence of the post of Head of Department in the third respondent institution, prescribing such experience qualification discriminates the petitioners from others.
11. I have considered the issue in detail. The whole dispute revolves around the qualification prescribed to the post of Principal. There is no dispute to the fact that the mode of recruitment to the post of Principal is by direct recruitment and that it is not a promotional post. The then existed rules with regard to the qualification prescribed to the post of Principal and the impugned amended rules to the same , as found in the impugned Government Order, are extracted hereunder:-
Sl.No. Item Existing Provision Amended Rules
1.
Name of the Post Principal Principal
2. Scale of Pay Rs.12000-375-16500 15600-39100 (PB3) + Grade Pay 7600/-
As per G.O.(Ms) NO.237 dated 3.11.2010 of Tourism and Cutlure (T2) Department Chennai
3. Method of recruitment Direct Recruitment Direct Recruitment
4. Whether post is Selection / Non Selection Selection Not applicable
5. Age limit for direct recruits Age: 40 to 50 years with usual relaxation of 5 years to SC/ST candidates. Not exceeding 52 years for general cate gory.
OBC 55 years.
Upper age limit is relaxable upto 5 years in case of SC, ST candidate.
6. Educational and other qualifications for direct recuits
1) Graduate with Degree/Diploma in Hotel Management & Catering Technology (3 years) with at least 2nd Division (or) a Post Graduate Degree in Institutional Management with (atleast 2nd Division) from a recognised institute.
2) M.B.A (at least 2nd Division) from a recognised University or Institution .
1) Graduation from a recognised University.
2) Full time Degree/ 3 Year Diploma in Hotel Management from National Council for Hotel Management and Catering Technology/ State Board of Technical Education/ Recognised University securing not less than 50% marks in aggregate.
For Graduates in Hotel Management item No.(1) is not necessary.
Experience At least 12 years in an Institute of Hotel Management and Catering Technology or in a Hotel or in an allied profession out of which 8 years should be as Head of Department or in a managerial position.
Desirable Post diploma in Specialised Hotel Management/TEachers/ Training Degree or Diploma/Knowledge of French language. Experience in Hotel & Catering Industry. Experience in Admn and Finance in a Commercial or Educational Institution.
Educational and Other qualifications and experience etc., required for direct recruits.
Experience At least 15 years of experience in teaching and / or hotel industry including minimum 5 years as Head of Department in hotel operations related subject(s) in an Institute of Hotel Management affiliated to National Council for Hotel Management and Catering Technology /State Board of Technical Education/ Recognised University. OR At least 15 years of experience in teaching and / or hotel industry including minimum 5 years as Principal in a Food Craft Institute affiliated to National Council for Hotel Management and Catering Technology. OR Minimum 15 years Hotel Industry experience in Managerial capacity in 4 Star/Heritage or above category approved hotel.
Desirable M.B.A/ Master in Tourism Management /Master in Hotel. Management/Master in Leisure & Tourism equivalent (atleast 2nd D Desirable M.B.A/Master in Tourism Management/Master in Hotel. Management/Master in Leisure and Tourism Management or equivalent (atleast 2nd Division) from a recognised University or Institution.
Note: Hotel operations related subjects are Food Production, Food and Beverage Service, Accommodation Operations/House Keeping and Front Office.
8Medical Fitness Medical certificate to be produced Medical certificate to be produced 9 Appointing Authority Board of Governors Board of Governors
12. A comparative study of both the existing provision and the amended provision would show that the requirement of eight years experience as Head of the Department in an Institute of Hotel Management and Catering Technology was already there in the existing rules itself, before the impugned amendment. In the above referred tabular column, Sl.No. 7 deals with experience, where it is clearly stated that 8 years experience as Head of Department was a requirement under the existing provision. Only that provision was amended by prescribing minimum 5 years as the required experience as Head of Department in an Institute of Hotel Management or in hotel operations related subject . Therefore, in my considered view, it is clear that the requirement of experience as Head of Department is not a freshly introduced one by way of impugned amendment and on the other hand it was already there in the then existed rules itself before such amendment. The only difference is that previously it required 8 years experience and now reduced to 5 years experience as the Head of Department. When that being the factual position, I am unable to appreciate the contention of the petitioners that the impugned amendment is brought in only to deny their opportunity to compete to the post of Principal. It is seen that they have not questioned the then existed rule more particularly with regard to the experience requirement as Head of Department at any point of time. On the other hand, by accepting the said rules, they got appointment and they are working in the institution all these years. Therefore, I am of the firm view that the petitioners are totally estopped from questioning the impugned amendment.
13. Further, the post of Principal is admittedly a selection post by way of Direct recruitment and therefore, the petitioners cannot seek themselves to be considered to the said post by way of promotion. Therefore, only when they possess the requisite qualification, they can compete in the selection process made by direct recruitment. Insofar as the petitioner in W.P.No.19111 of 2013 is concerned, admittedly he is not possessing the graduation from any recognised university as required under the existing rules as well as the amended rules. No doubt, he is possessing post graduate qualification which comes under the category of desirable qualification as found in the impugned notification. Insofar as the other writ petitioner in W.P.(MD)No.20644 of 2013 is concerned, though he possesses the graduation qualification, he is not having the requisite experience qualification as Head of Department and therefore he cannot compete to the post of Principal. The same is the position in respect of the writ petitioner in W.P.(MD).No. 19111 of 2013 as he is also not having such experience qualification as Head of the Department.
14. In my considered view, the petitioners instead of taking efforts for creation of Head of Department post, have wrongly chosen to question the impugned proceedings, based on mis-conceived right and cause of action.
15. No doubt, the impugned amendment and notification were issued after formation of the Organisation and Methods Study Committee appointed as per G.O.No.24 dated 17.10.2013. At this juncture, it is to be noted that such committee was formed by the Personnel and Administrative Reforms Department of the State Government whereas the impugned G.O. amending the Rules came to be passed by the Tourism, Culture and Religious Endowments Department. In my considered view, these two exercises were made by two different Departments for two different purposes and therefore, the petitioners are not justified in contending that the impugned proceedings ought not to have been issued having formed the Organisation and Methods Study Committee. As stated in the counter affidavit filed by the respondents 1,3, and 4, after such study, the committee's report will have to be placed before the Executive Committee and then the recommendations of the Executive Committee will have to be placed before the Board of Governors for taking a decision. Therefore, I am of the view that such process of Organisation and Methods Study will not be an impediment to the Tourism, Culture and Religious Endowment Department, which is the concerned Department insofar as the third respondent is concerned, to issue the impugned proceedings.
16. Further, the impugned proceedings are issued only in pursuant to the decisions taken in the 40th Meeting of Board of Governors wherein it was resolved to amend the existing Rules in the recruitment Rules for the post of Principal. Therefore, it is clear that the impugned proceedings are only consequential proceedings in pursuant to the resolution passed at the 40th Meeting of Board of Governors held on 18.10.2013. The petitioners herein have challenged only the consequential proceedings issued by the first respondent Government followed by paper notification and have not questioned the decision taken in 40th Meeting at all. It is well settled that a consequential order cannot be challenged in isolation without challenging the original or basic order. In this connection, I would like to refer to the decision reported in 2010 (1) SCC 756 (Edukanti Kistamma and Others Vs. S.Venkataraeddy and others), wherein paragraph 22 reads as follows:-
"22. It is a settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined (vide P.Chitharanja Menon Vs.A.Balakrishnan (1977 (3) SCC 255); H.V.Pardasani Vs. Union of India (1985 (2) SCC 468; and Govt. of Maharashtra Vs. Deokar's Distillery (2003 (5) SCC 669)"
17. Therefore, the writ petitions are not maintainable even on the ground that the petitioners have questioned only the consequential proceedings and not the original proceedings viz., the resolution passed in the 40th Board of Governors' Meeting.
18. Even assuming that challenge made to the impugned proceedings can be construed as the challenge made to the resolution passed at the 40th Board of Governors Meeting, still I am of the view that the petitioners cannot succeed in their attempt for the simple reason that the said resolution was passed by the competent authority viz., Board of Governors and as it is admitted by both sides that the resolution passed by the Board of Governors has to be approved by the Government. The petitioners are not questioning the competency of the Board. On the other hand, it is their contention that such resolution at the 40th Board Meeting should not have been passed without waiting for the report to be given by the Committee formed under G.O.Ms.No.24. In my considered view, even such submission cannot be accepted for the simple reason that under the resolution of the 40th Meeting of the Board of Governors, the qualification prescribed to the post of Principal was suitably amended. When such qualification was fixed by the competent authority this Court cannot interfere with the same as the power to prescribe qualification to a particular post always vests with the recruiting authority and not for the Court to say as to what could be the requisite qualification.
19. It is well settled that in the matter of fixing the qualification to a post, the Court cannot interfere. It is for the employer to decide as to what sort of person he seeks to recruit and employ. The employer is fully within his domain to fix the qualifications to a particular post. Such degree of qualification may vary from one employer to another. But that itself will not entitle the intended employee to insist and say what should be the qualification. Neither this court can do so. In this connection the decision reported in 1990 (1) SCC 288 (J.Rangaswamy Vs. Government of Andhra Pradesh) can be relied on wherein the Apex Court at paragraph 6 observed as follows:-
"6. ..... It is not for the court to consider the relevance of qualifications prescribed for various posts. The post in question is that of a Professor and the prescription of a doctorate as a necessary qualification therefor is nothing unusual. Petitioner also stated before us that, to the best of his knowledge, there is no doctorate course anywhere in India in radiological physics. That is perhaps why a doctorate in nuclear physics has been prescribed. There is nothing prima facie preposterous about this requirement. It is not for us to assess the comparative merits of such a doctorate and the BARC diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question. It will be open to the petitioner, if so advised, to move the college, university, government, Indian Medical Council or other appropriate authorities for a review of the prescribed qualifications and we hope that, if a doctorate in nuclear physics is so absolutely irrelevant for the post in question as is sought to be made out by the petitioner, the authorities concerned will take expeditious steps to revise the necessary qualifications needed for the post appropriately. But, on the qualifications as they stand today, the petitioner is not eligible to the post and cannot legitimately complain against his non-selection."
20. In this aspect the unreported decision of the Principal Bench of this Court made in W.P.Nos.8446 of 1997 etc., (M.Karnan Vs. The Presiding Officer, Labour Court, Madurai and another), more particularly paragraphs 9.2 and 9.3 can also be usefully referred to as extracted hereunder:-
" 9.2. It is not for this Court to go into as to what is the essential qualification. In fact, it is for the employer to prescribe qualification for any post for which they require candidates. In the present case, the Board of Directors have made Service Rules and also Board Resolutions prescribing VIII Standard as the minimum qualification. Even when requisitions were sent to the respective Employment Exchanges, these qualifications were indicated and it is only because the petitioners have claimed to have such qualification, their names were sponsored. It is only because of requirement of such educational qualification, the petitioners have allegedly produced bogus educational certificates.
9.3. The Supreme Court vide its decision in J.Ranga Swamy Vs. Government of Andhra Pradesh (1990 (1) SCC 288) has held that it is not for the Court to consider the relevance of qualifications prescribed for various posts."
21. Further, it is to be seen that what was relegated to the Committee under G.O.24 is to make Organisation and Methods Study of the Institute to promote existing faculty and administrative staff members of the institute and to fix the ratio of outside (visiting ) faculty to permanent faculty at 80:20. Here in this case, the Principal post is not a promotional post. Therefore, even such study by the said Committee cannot have any bearing on prescribing qualification to the post of Principal unless the rules are so amended to the effect that the post of Principal is a promotional post. Therefore, I am of the view that the petitioners are not entitled to question the 40th Board Meeting resolution as well, though they have not, in fact, questioned the same in these writ petitions.
22. The petitioners further contended that they are being discriminated by the impugned proceedings. I fail to understand as to how they are justified in their contention. Needless to say that the plea of discrimination comes into play only when equals are treated unequal or unequals are treated equal. In this case, prescribing the qualifications to a particular post cannot be termed as a discriminative action. As already discussed supra, the petitioners ought to have fought for creating the post of Head of Department in their institution. On the other hand, their fight in these writ petitions is on the wrong direction with mis-conception of facts and rights.
23. Further, it is the contention of the learned Additional Advocate General that both the petitioners have participated in the selection process in pursuant to the impugned proceedings and therefore they cannot question the same by filing these writ petitions. A specific averment was also made to that effect in the counter affidavit filed in W.P.(MD)No.19111 of 2013. No denial is made to the said fact by the petitioners by filing any rejoinder to the said statement. The fact also remains that the petitioners have not stated anything in their affidavits about their participation in the selection process. They have either conveniently or deliberately omitted to place the said fact. It is well settled that a person who comes to the Court by suppressing material facts is not entitled to any relief. In this connection the following decisions can be usefully referred to:-
24. In Dalip Singh Vs. State of Uttar Pradesh and Others 2010 (2) SCC 114 () , the Apex Court held thus:-
"7. In Prestige Lights Ltd., Vs. SBI (2007 (8) SCC 449) it was held that in exercising power under Article 226 of the Constitution of India, the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. "
25. In Oswal Fats and Oils Limited Vs. Additional Commisisoner (Administration) Bareilly and Others (2010 (4) MLJ 567 SC ) , the Apex Court held thus:-
"15. It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the Court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the Court not only has the right but a duty to deny relief to such person. ' Therefore, on the reason of suppression of material facts also, these writ petitions are liable to be rejected.
26. The petitioners have participated in the selection process. However, after realising that they will not be selected for want of the qualification prescribed, they have filed the present writ petitions questioning the selection process. Needless to say that selection process includes the act of prescribing the requisite qualification. It is well settled that the persons who participated in the selection process, cannot question the same at a later point of time. In this connection the decision of the Apex Court reported in 2007 (8) SCC 100 (Union of India and Others Vs. S.Vinodh Kumar and others) is relied on wherein it is stated at paragraph 18 as follows:-
"18. It is also well-settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. [See Munindra Kumar and Others v. Rajiv Govil and Others - AIR 1991 SC 1607]. [See also Rashmi Mishra v. Madhya Pradesh Public Service Commission and Others 2006 (11) SCALE 5]
27. Likewise the decision of the Apex Court reported in 2010 (7) Supreme 406 (Vijendra Kumar Verma Vs.Public Service Commission, Uttarakhand and others) can also be usefully referred to for the above said proposition. In the said decision the Apex Court held thus:-
"25. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office Operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office Operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.
26. In this connection, we may refer to the decision of the Supreme Court in Dr.G.Sarana Vs. University of Lucknow and Ors. Reported in 1976 (3) SCC 585 wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus:-
"15. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee."
28. In so far as the petitioner in W.P.(MD) No. 19111 of 2013 is concerned, the counter affidavit filed in that writ petition, more particularly paragraph 12 of the same, would show that there are some serious allegations made against him and a complaint was made on 12.11.2013 by the Principal-in-charge himself, who is the other writ petitioner in W.P.No.20644 of 2013. A perusal of the allegations so made would reveal that they are very serious in nature since they include sexual harassment against women employees. Even though the counter affidavit was filed along with the vacate stay petition on 12.12.2013, the said allegations were not denied by the writ petitioner by filing any reply or rejoinder to the same. Therefore, it shows that the writ petitioner has not come to this Court with clean hands. It is well settled that a person who comes to the Court with unclean hands is not entitled to any relief, more particularly, while exercising the discretionary jurisdiction under Article 226 of the Constitution of India.
29. The learned counsel appearing for the petitioner relied on the decision reported in 2004 (5) CTC 572 (Trichy Engineering College and others Vs. Anna University and others) to contend that all the statutory bodies involved in the process actually perform the duty of a single entity, namely, that of the sovereign Government and they have to function in a cohesive manner in public interest. I have already pointed out that there is no impediment for the Tourism Department to issue the impugned proceedings. Moreover, such proceedings are only consequential proceedings approving the decision taken by the competent authority viz., Board of Governors. Such decision of the Board is not at all challenged. Therefore, I find no relevance with the above decision to the facts and circumstances of the present case.
30. It is also stoutly contended by the petitioners that the qualifications prescribed by the third respondent to the post of Principal is against the norms prescribed by the National Council for Hotel Management. In other words, they contend that the third respondent cannot go beyond the direction issued by the National Council. On the other hand, the memo filed by the Assistant Solicitor General of India on behalf of the second respondent would show that the National Council is only the advisory body to maintain the quality of education and it has no control over the decision of the Governing body of the State institutes. Even otherwise, a comparative study of the National Council Rules along with the present impugned rules prescribing qualification to the post of Principal, as extracted at paragraph 19 of the counter affidavit, would show that through the impugned qualifications, more particularly, with regard to experience as Head of Department, the length of expected experience is reduced to 5 years, whereas 10 years is required under the said Central Rules. Therefore, the contention of the petitioner, in this aspect is liable to be rejected.
31. Before parting with this case, this Court would like to make an advice to the respondents to consider the creation of Head of Department post at the fifth respondent institution so that at least in future, deserving persons who are working in the same institute for several years can compete to the post of Principal, if they served as Head of Department with the required experience qualification as prescribed to the post of Principal. I hope and believe that concerned authorities will take note of this suggestion and take a decision so that deserving persons working in the 5th respondent institution can also compete to the post of Principal at least in future.
32. Considering all these facts and circumstances I find no merits in these writ petitions and accordingly, the same are dismissed as devoid of merits. Consequently the interim stay granted by this Court is vacated and all the connected M.Ps are closed. No costs.
krr/skn To
1.The Secretary Tourism, Culture and Religious Endowments (T2-2) Department Fort St. George, Secretariat Chennai 9.
2. The Director National Council for Hotel Management and Catering Technology (Ministry of Tourism) Government of India A-34, Sector 62 Noida 201 309.
3. The Chairman Board of Governors State Institute of Hotel Management and Catering Technology Thuvakkudi, Trichy 15.
4. The Additional Director (Tourism) Government of Tamil Nadu TTDC Complex, Wallajah Road Chennai 2.
5. The Principal in-charge State Institute of Hotel Management and Catering Technology Thuvakkudi Trichy 620 015.