Madras High Court
Dr.K.Vinoth Kumar vs Union Territory Of Puducherry on 26 November, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.11.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.23401 of 2012 and M.P.Nos.1 and 2 of 2012 Dr.K.Vinoth Kumar .. Petitioner Vs. 1.Union Territory of Puducherry, rep by the Chief Secretary to Government, Chief Secretariat, Puducherry-605 001. 2.Union Public Service Commission, rep by its Secretary, Dolphur House, Shahjahan Road, New Delhi. 3.Pondicherry University Community College, A Constituent College of Pondicherry University, Lawspet, Puducherry-605 008. 4.The Vide-Chancellor/Registrar, Pondicherry University, Venkataraman Nagar, Kalapet, Puducherry-605 014. 5.The Chairman, University Grants Commission (UGC), Bahadur Shah Zafar Marg, New Delhi-110 002, India. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the 4th respondent to regularise the service of the petitioner with effect from the date of initial appointment with all consequential benefits and to count the service and fix pay of scale of the petitioner in the post of lecturer by taking into account of past service rendered by him by considering the petitioner's representation, dated 09.01.2012. For Petitioner : Mr.I.Arockia Selvaraj For Respondents : Mrs.A.V.Bharathi for RR3 and 4 - - - - ORDER
The petitioner, who was working as a Guest Lecturer in the third respondent Pondicherry University Community College, which is a constituent college of the Pondicherry university, has filed the present writ petition seeking for a direction to the 4th respondent University to regularise his services with effect from the date of his initial appointment with all consequential benefits and to count his service and to fix pay of scale in the post of Lecturer by taking into account of his past services rendered by considering his representation dated 09.01.2012.
2.In his representation, dated 09.01.2012, the petitioner claimed that on 15.6.2011, he had applied for the post of Assistant Professor of Biochemistry in the third respondent college and he was the only eligible candidate. He has been working as a resource person in the department of Bio-sciences in the third respondent college from the year 2009 and that he has been teaching subjects both in Biotechnology and Biochemistry. He has taken responsibility of taking undergraduate students of both streams for field trips to various institutions. He belonged to a category of other backward class. He had applied as per the advertisement dated 09.05.2011. But he has not received any communication. He has been exempted by the University Grants Commission from holding NET or SLET certificates. As a Guest Lecturer, he has been paid a very low pay of Rs.14,800/-. Therefore, he requested them to call for the interview based on his application and to give preference in the post applied for. He further demanded to stop any appointment of candidates through backdoor operation.
3.Though in the representation, the petitioner claimed only for consideration of his case in the selection process and to give preference, the main relief sought for in the writ petition is virtually a regularization in the post. In the advertisement issued by the university dated 09.05.2011, for the department of Biochemistry and Molecular Biology, for the post of Assistant Professor, only two candidates were called for, one ST and one general category and for Biotechnology, no applications were called for for the post of Assistant Professor. It is not clear as to how the petitioner had applied for the post meant for general category when he claimed reservation as OBC.
4.In any event, in the affidavit filed in support of the writ petition, the petitioner placed reliance upon a judgment of the Supreme Court in Karnataka State Private College Stop Gap Lecturers' Association Vs. State of Karnataka reported in AIR 1992 SC 677 and also a judgment of the Supreme Court in State of Karnataka and others Vs. Uma Devi (3) and others reported in 2006 (4) SCC 1 and also a judgment of this court in S.Srinivasan Vs. Union of India and others reported in 2008 Writ L.R. 872.
5.When the matter came up on 28.08.2012, Mrs.A.V.Bharathi, learned counsel for the university took notice. She brought to the notice of this court that the petitioner initially moved the Tribunal in O.A.No.1014 of 2012 seeking for the very same prayer. The Tribunal, by its order dated 21.08.2012 had dismissed the O.A., by stating that the Tribunal has no jurisdiction. The petitioner also filed a writ petition being W.P.No.23849 of 2012 seeking for a direction to call him for the interview for the post of Assistant Professor based on his application dated 15.6.2011 and to appoint him either in the college based on his past services or any colleges under the control of the university in the category of OBC for Biochemistry subject. The said writ petition after notice was dismissed on 03.09.2012 and in paragraph 3 of the order, it was observed as follows :
"3.In my considered opinion, the 1st respondent has not made any recommendation to appoint the petitioner as Assistant Professor. The petitioner appears to have sent a petition to the 1st respondent, who in turn, has simply forwarded the same on 25.01.2012 to the 3rd respondent. This does not mean that the 1st respondent has made any recommendation. Now, from the records, it could be seen that proper selection procedure is being followed by the 3rd respondent. Selection is to be made based on merits, reservation etc. When that be so, question of issuing direction to the 3rd respondent to appoint the petitioner as Assistant Professor does not arise at all."
6.The petitioner in the present case seeks for selection without going through recruitment process. Heavy reliance was placed upon a judgment of the division bench of this court in S.Srinivasan Vs. Union of India and others reported in 2008 Writ L.R. 872. In that case, the petitioner therein was appointed as part time lecturer on the basis of an old recruitment rule. When subsequently an action was initiated to fill up the post by recruitment through UPSC, he filed O.A before the Central Administrative Tribunal. The UPSC was directed to consider his case. But the said person was not selected. Thereafter, a further direction was given to give one more opportunity. It is as against the said order of Central Administrative Tribunal, both the petitioner and the UPSC came before this court. It was contended that the part time lecturer who was appointed on fortuitous circumstances cannot seek for regularisation as he had not come through the mode of recruitment rule. Therefore, the regularisation sought for is contrary to the judgment of the Supreme Court in Secretary, State of Karnataka and others Vs. Umadevi (3) and others reported in 2006 (4) SCC 1. The division bench found that the petitioner therein was recruited on the basis of old recruitment rules and hence, there was no illegality in his appointment. Heavy reliance was also placed upon a judgment of the Supreme Court in U.P. State Electricity Board Vs. Pooran Chandra Pandey and others reported in 2007 (11) SCC 92. It was felt that the petitioner therein will be over-aged for any employment. Since the petitioner who was working for more than 25 years and relief was to be given to him, the division bench allowed the writ petition.
7.A Division Bench of this court headed by M.Katju, C.J. (as he then was) in M.Saravanakumar and others Vs. The Secretary to Government, Education Department, Fort St. George, Chennai and others reported in 2005 (3) L.W. 329 dealt with the demand of the Guest Lecturers (adhoc lecturers) for regularisation. In paragraphs 28,32 and 33, the division bench had observed as follows:
"28. It may be noted that Guest Lecturers are appointed by the Principals of the Colleges. There is no guarantee that such an appointee is competent. The Principal may have various considerations for making such an appointment, not necessarily merit. Suppose one of such appointees is wholly incompetent and undeserving. Why can he not be replaced by a bright and deserving candidate? After all we have to see the matter from the point of view of the students. An incompetent teacher may adversely affect the future career of the students, while a bright teacher can greatly uplift it. Hence, in our opinion, if a deserving and competent candidate is available then he can certainly be appointed as Guest Lecturer in the place of another Guest Lecturer, who is incompetent and undeserving.
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32.It is also not in the interest of the students or the public to appoint Guest Lecturers on a large scale, because teachers who are given such appointments are not likely to take much interest in their work. They will not be able to work with a free mind and will feel all the time that there is a Damocles Sword hanging over their heads. Surely the students in Tamil Nadu deserve good teachers. Good education is of paramount importance for the progress of society in the modern age.
33.We fail to understand why for the past 5 years no regular recruitment has been made through the Teachers Recruitment Board, and instead this policy of appointing Guest Lecturers has been continued year after year. The teachers are the Gurus of society, and they must be given proper respect, proper status, and a secure job, so that they can function with a free mind and take interest in their work. This policy of making appointments of Guest Lecturers is not conducive to this end, and must now be revoked. "
8.After rejecting similar claims, in paragraph 37, the division bench gave the following directions :
"37.We therefore direct that after 31.03.2006 all appointments of lecturers, and other teaching posts, including Principals, in Government Colleges in Tamil Nadu shall be made on a regular basis by selection through the Teachers Recruitment Board or any other legally constituted selection body and not by appointing Guest Lecturers. Such regularly selected teachers will be paid the U.G.C. grade salaries and guaranteed security of tenure. They shall also be given all benefits and perquisites allowable to regularly selected teachers. No Guest Lecturers or ad hoc Lecturers will be appointed or continued after 31.03.2006."
9.In the light of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.
vvk To
1.The Chief Secretary to Government, Union Territory of Puducherry, Chief Secretariat, Puducherry-605 001.
2.The Secretary, Union Public Service Commission, Dolphur House, Shahjahan Road, New Delhi.
3.Pondicherry University Community College, A Constituent College of Pondicherry University, Lawspet, Puducherry-605 008.
4.The Vide-Chancellor/Registrar, Pondicherry University, Venkataraman Nagar, Kalapet, Puducherry-605 014.
5.The Chairman, University Grants Commission (UGC), Bahadur Shah Zafar Marg, New Delhi 110 002 India