L.Annapoorna v. The Secretary for Education, Government of Pondicherry, Pondicherry – 605 007

Writ Appeal under Clause 15 of the Letters Patent againstthe order dated 09.03.2007 made in W.P.No.5736 of 2000 on the file ofthis Court. Petition presented to this court to issue a writ ofcertiorari calling for the records of the case pertaining to orderdated 21.3.2000 bearing No.E/27/BPK/97 Pondicherry of the secondrespondent and quash the same as illegal and arbitrary.Writ Petition under Article 226 of the Constitution ofIndia, praying for issuance of a writ of certiorarified mandamus,calling for the records relating to the Office Order No.E27/BPK/97/37PA dt.11.06.1997, Office Order No.E27/BPK/97/38 PA dt.11.06.1997,Office Order No.E-27/BPK/97 dt.12.11.1997, Office Order No.E-27/BPK/99/1937, dt.08.09.1999 on the file of the third respondent andquash the same and consequently direct the respondents 1 to 3 toprepare and finalise the seniority list for the post of LectureGrade-I in the third respondent institution and to give promotions tothe petitioners and others in accordance with the Rules.For appellants in W.A.: Mr.R.Thiagarajan, Senior Counsel, for M/s.Aiyar & Dolia.For respondent 1 in W.A.: Mr.R.Natarajan for Addl.Govt.Pleader (Pondicherry).For respondent 2 : Mr.M.R.ThangavelFor respondent 5 : Mr.T.P.ManoharanFor respondents 6,8 and 10: Mr.V.Ajay KumarFor respondent 7 : Mr.Balan HaridasFor respondents 4,9 and 11 : M/s.N.MalaFor respondents 17 to 20,22 & 23 : M/s.Chitra SampathFor respondent 24 : Mr.P.R.GopinathanFor respondent 25 : Mr.A.V.BharathiFor petitioners in W.P.: Mr.T.P.ManoharanJ U D G M E N TV.DHANAPALAN,J.W.A.No.546/2007 :Appellants were appointed as Guest Lecturers on 08.01.1997in the second respondent institution, namely, BharathiarPalkalaikoodam by way of an advertisement in newspapers and latertheir services were regularised on 12.11.1997, granting UGC scale ofpay of Rs.2200/ – 4000/-. While so, on consideration ofrepresentation of teaching staff, the second respondent institution,by an order dated 21.03.2000, formulated a formula for the inductionof teaching staff, numbering about 21, by suitable categorisation andgiving one time relaxation to get the benefit of scale of pay ofRs.8,000/- - 13,500/-, subject to certain conditions. https://hcservices.ecourts.gov.in/hcservices/

2. According to the appellants, respondents 3 to 23 wereunqualified and appointed on contractual basis and there could not befitment in the UGC scale of pay for Lecturers and the appellants, forpossessing qualification and good academic record, ought to have beenplaced above the respondents, as they were better qualified forappointment as Lecturer Grade-I; however, the respondents were madeseniors and, as such, the order, dated 21.03.2000, passed by thesecond respondent, was in violation of UGC Regulations and liable tobe set aside. 3. The case of the respondents was that the appointment ofappellants was not made by a properly constituted committee as perUGC norms; therefore, the said appointment could not be construed asa regular appointment; the UGC guidelines themselves permitappointment of non-qualified persons in the event of non-availabilityof qualified persons on condition that the non-qualified persons soappointed would have to equip themselves and attain necessaryqualification within the stipulated period and, as such, the impugnedorder was in accordance with the rules.4. Based on the above contentions, the learned single Judgedismissed the Writ Petitions, holding that the appellants had notshown that the impugned order was in violation of the rules. Hence,this Writ Appeal.5. On the above points, we have heard the learned counselfor the parties and also gone through the records.6. The only point that arises for consideration is, whetherthe order, dated 21.03.2000, passed by the second respondentinstitution, granting one time relaxation to the respondents 3 to 23and placing them over and above the appellants in seniority,isvalid ?7. At the outset, it is to be stated that the secondrespondent institution has been sponsored by the PondicherryGovernment ant its affairs are governed by the Governing Body, whichincludes the Education Minister as its Chairman, and is affiliated toPondicherry University, which is not in dispute. When it isaffiliated to Pondicherry University, it automatically follows thatthe institution is governed by UGC regulations. That being so, it isrelevant to quote the relevant clause of qualifications, prescribedby the University Grants Commission, for appointment as Lecturer.The said qualifications read as under :"No person shall be appointed to a teachingpost in a university or in any of institutionsincluding constituent or affiliated collegesrecognised under clause (f) of Section 2 of theUniversity Grants Commission Act,1956, or in an https://hcservices.ecourts.gov.in/hcservices/ institution deemed to be a university undersection 3 of the said Act in a subject if he doesnot fulfil the requirements as to thequalifications for the appropriate subject asprovided in Schedule I to X of these regulations.Provided that any relaxation in theprescribed qualifications can only be made by aUniversity in regard to the posts under it or anyof the institutions including constituent oraffiliated colleges recognised under clause (f) ofSection 2 of the aforesaid Act or by aninstitution deemed to be a university underSection 3 of the said Act with the prior approvalof the University Grants Commission."The above said proviso in the Regulation,1991, has been dropped andreplaced by the following proviso :"Provided that any relaxation in the prescribedqualifications can only be made by the UniversityGrants Commission in a particular subject in whichNET is not being conducted or enough number ofcandidates are not available with NET qualificationsfor a specified period only."8. In exercise of the powers conferred by clause (e) of sub-section (1) of Section 26 read with Section 14 of the UGC Act, theUniversity Grants Commission has issued a Notification No.F.1-11/97(CPP) dated 19.09.1991. As per Schedule-I of the said Notification,the following minimum qualifications were prescribed for appointmentas Lecturer :"Good academic record with at least 55%marks or an equivalent grade at Master's Degreelevel in relevant subject or an equivalentdegree from an Indian/Foreign University.Besides fulfilling the abovequalifications, candidates should have clearedthe eligibility test for Lecturers conducted byUGC, CSIR or similar test accredited by UGC.A traditional or a professional artist witha highly commendable professional achievementin the subject concerned."9. Further, in the year 1998, by its Notification No.F.3-1/94 (PS), dated 24.12.1998, the University Grants Commission hasprescribed the following qualifications for the said post : https://hcservices.ecourts.gov.in/hcservices/ "Good academic record with at least 55%of the marks, or an equivalent Grade of B inthe 7 point scale with latter GradesO,A,B,C.D,E & F at the Master's degree level,in the relevant subject or an equivalentdegree from an Indian/Foreign University.Besides fulfilling the abovequalifications, candidates should have clearedthe eligibility test (NET) for Lecturersconducted by the UGC, CSIR or similar Testaccredited by the UGC.A traditional or a professional artistwith a highly commendable professionalachievement in the subject concerned."10. It is also important to note that the rules ofPondicherry University First Ordinance Governing Academic Mattersalso contain identical qualifications for being appointed to the postof Lecturer in the faculties of Music and Fine Arts, which are asunder : "Good academic record with at least secondclass Master's Degree in a relevant subject or anequivalent degree or Diploma recognised by theUniversity ; andTwo years' research or professionalexperience or evidence of creative work andachievement in his/her field of specialisation ora combined research and professional experience ofthree years in the field as an artist ofoutstanding talent; orA traditional or a professional artist with ahighly commendable professional achievement in thesubject concerned." Further, for determining "good academic record", the followingcriteria shall be adopted :(i) A candidate holding a Ph.D.degreeshould possess at least a second class Master'sdegree ; or(ii) A candidate without a Ph.D.degreeshould possess a high second class Master'sdegree and second class in the Bachelor'sdegree ; or https://hcservices.ecourts.gov.in/hcservices/ (iii) A candidate not possessingPh.D.degree but possessing second classMaster's degree should have obtained firstclass in the Bachelor's degree. 11. When the University Grants Commission Regulations andthe Pondicherry University First Ordinance Governing Academic Mattersprescribe minimum qualification for the post of lecturers, the secondrespondent, by the order dated 21.03.2000, granted time of five yearsto the respondents to acquire UGC accredited qualifying test ofJRF/NET/SLET, contrary to the very regulations.12. The Recruitment Committee for selection of GuestLecturers in the second respondent institution, in its meeting heldon 27.11.1996, had referred to the advertisement in the newspapersfor filling up of three existing vacancies of Lecturers in the secondrespondent institution, evaluated the qualifications, experience,research publications, recognition in the field, practicalperformance and presentation of the appellants and, thereafter, heldthat all the three candidates were found to possess thequalifications prescribed by UGC for the post of Lecturer.Considering their additional qualifications like M.Phil., Ph.D.,Research Publications and teaching experience, the three candidateswere merit listed for appointment and were also recommendedappropriate scales of pay.13. On 08.09.1997, the fourteenth Governing Body of thesecond respondent ratified the advertisement and appointment of GuestLecturers. In the said meeting, it was also held that the ScreeningCommittee, which screened the staff members, was of the opinion thatthe existing teaching staff must qualify themselves with at leastP.G.qualification and that most of the staff members in the secondrespondent institution were not in a position to avail leave toproceed for higher studies outside and, as such, the Governing Bodyalso approved the proposal to start Master's Degree course in Music,Dance and Fine Arts from 1998-1999 in the institution and for gettingaffiliation for the said course, the Pondicherry should be addressedto start the course.14. In the Office Note of the second respondent, at pageNo.21 of the typed set filed by the appellants, paras 8 and 9 read asfollows :"8.As per the orders of the Chairman, BPK,all the 24 teaching staff of BPK in the threedepartments of Music, Dance and Arts & Crafts havebeen regularised as Lecturers Grade-II in the timescale of Rs.1400-1600/1640-2900 from the date oftheir original appointment. All of them have beenpaid their regular salary from the month of https://hcservices.ecourts.gov.in/hcservices/ October 1997 and their arrears of salary from01.01.1996 to 30.09.1997 have also been paid. 9. Now as per the orders of the Chairman videpre-paras 4-5/n.f. the services of other twoLecturers Dr.L.Annapoorna and Thiru P.V.Bose havebeen regularised from the date of their originalappointment (January '97) as Lecturers Grade-I inthe UGC Scale of Pay Rs.2200-75-2800-100-4000,since they possessed all the qualificationsprescribed by the UGC for recruitment as Lecturersin Colleges. Both of them have been paid theirregular salary from the month of November,1997."It is also pertinent to notice from the said Office Note that theappellants were also granted additional increments for possessingPh.D./M.Phil. Qualification. 15. In the meeting of eleventh Governing Body of the secondrespondent, held on 11.07.1995, it was also felt that the existingteaching staff could not be regularised as lecturers, since they werenot possessing post-graduate qualifications, as prescribed by theU.G.C. Further, the Screening Committee of the second respondentinstitution, in the meeting held on 11.09.1996, screened theinstructors of the second respondent institution to assess theirsuitability for appointment as Lecturers. The said assessment wasmade with reference to the educational qualifications prescribed forcollege lecturers by the University Grants Commission, ascommunicated by the Pondicherry University, to which the institutionstood affiliated. The Committee also felt that all the instructorspossessed only Diploma qualification from recognised institutions,but they did not possess the prescribed Post Graduate qualificationand all of them should be advised to obtain a graduationqualification in Dance or related field within a period of threeyears, which would qualify them to be given a time-scale of pay.After they obtaining the graduation qualification and being given atime-scale of pay, a further period of 2-3 years was to be given toenable them to obtain Post-Graduate qualification, as perrequirement. The said prescription and relaxation were given so asthe institution not to run the grave risk of being derecognised bythe University. 16. The teaching staff in the second respondent institution,21 in number, recruited between 1988 and 1993, had represented fortheir induction as Lecturers Grade-I and for grant of higher scale ofpay. Thereupon, the second respondent, by the order dated21.03.2000, after a careful analysis of the work norms andeducational qualifications prescribed under UGC pattern vis-a-vispossessed by the staff and experience rendered by them in theinstitution, decided to work out a formula for their induction by https://hcservices.ecourts.gov.in/hcservices/ suitable categorisation and giving a one time relaxation to get thebenefit of scale of pay of Rs.8000-13500, subject to certainconditions. Accordingly, four categories were made for the purposeof one time relaxation. The said categories are as under :"CATEGORY 'A' : Candidates possessing PGor any Diploma/Post Diploma from highly reputedinstitutions with advance study and otherattainments of high standard with 8 years ofteaching experience in BPK.This category of teaching staff will beequated with PG qualifications withJRF/NET/SLET etc./Ph.D.for appointment asLecturer as per UGC norms for whom scale of payof Rs.8000-13500 will be offered straightawaywithout any relaxation with effect from thedate of regular appointment.CATEGORY 'B' : Candidates possessing PG orDegree or Diploma qualification with 8 years ofteaching experience in BPK with lesserachievements in the respective fields.This category of teaching staff will begiven the scale of pay of Rs.8000-13500 witheffect from the first day of the moth followingthe month in which they completed 8 years ofservice in BPK subject to the conditions thatthey should acquire the UGC accreditedqualifying test of JRF/NET/SLET etc. orPh.D.within 5 years of this order failing whichno further increments would be given.CATEGORY 'C' :Candidates possessing Degreeor Diploma with less than 8 years of teachingexperience in BPK.This category of teaching staff will begiven the scale of pay of Rs.5500-9000 witheffect from 1.1.96 and the next higher scale ofpay of Rs.8000-13500 with effect from the firstday of the following month in which they wouldcomplete 8 years of service in BPK. Theyshould also qualify with PG and NET/SLET etc.or Ph.D.within 5 years from the date of thatorder failing which no further increments wouldbe given. https://hcservices.ecourts.gov.in/hcservices/ CATEGORY 'D' : Candidates possessingcertificate course of study which cannot beequated with Degree or Diploma and with 8 yearsof teaching experience in BPK. This category of teaching staff will begiven the scale of pay of Rs.5500-9000 witheffect from 1.1.96. On acquiring thequalification of Degree or Diploma, they willmove to category 'B' and will be given the nexthigher scale of pay of Rs.8000-13500prospectively with effect from the date of suchorder and subject to the conditions forincrements beyond 5 years prescribed therein.17. When the appellants are appointed only after publicationof advertisement in newspapers that too by the Selection Committeecomprising the Secretary (Education) as its Chairman with Director(Art and Culture) and Principal of the institution as members and twoother experts and the same was approved by the fourteenth GoverningBody on 08.09.1997, the finding of the learned single Judge that theappointment of the appellants was at stake, in our view, cannot becountenanced. 18. On 08.09.1997, the fourteenth Governing Body of thesecond respondent ratified the advertisement and appointment ofappellants. In the said meeting, it was also held that the ScreeningCommittee, which screened the staff members, was of the opinion thatthe existing teaching staff must qualify themselves with at leastP.G.qualification and that most of the staff members are not in aposition to avail leave to proceed for higher studies. The GoverningBody also approved the proposal to start Master's Degree course inMusic, Dance and Find Arts from 1998-99 in B.P.K. and for gettingaffiliation for the said course, the Puducherry University should beaddressed to start the course from 1998-99 onwards.19. It may be true that that the second respondentinstitution has been able to accomplish excellence only as the resultof teaching and contribution made by the teaching staff, namely,respondents 3 to 23 for a long time. Though it is open for theinstitution to provide one time relaxation for categorisation andfitment in respect of the respondents, that cannot be at the cost ofseniority of the appellants, who are well qualified even at entrylevel and are given additional increments for possessing highqualifications. In other words, when the view of the Governing Bodywas that none of the staff possessed the prescribed qualification, itwas not proper for the said body to place them over and above theappellants, who are qualified as per the requirement. https://hcservices.ecourts.gov.in/hcservices/

20. The learned single Judge, though rejecting thecontention of the learned Government Pleader that the secondrespondent is not governed by UGC regulations and norms, has ignoredthe qualifications that are necessary for appointment of Lecturersand the suitability of the appellants for the said posts as alsoseniority and has given a go-by to the one time relaxation granted torespondents 3 to 23, thereby approving the seniority of therespondents over the appellants.21. The learned single Judge also referred to the fact thatin August 1998, one Vijayalatchumy was appointed as Lecturer Grade Iin the scale of pay of Rs.2200-4000/- for teaching Tamil languagewith effect from 03.08.1998 and one Sunitha was appointed on14.07.1999 as Lecturer in Dance Department in the same scale of payafter advertising the vacancy and they have not challenged the orderand are satisfied with their placement in their departments, which,in our considered opinion, is not a relevant factor for deciding theissue.22. Becoming qualified for being considered for appointmentcannot be equated with getting a right to be appointedretrospectively with effect from the date on which all the temporaryappointments were made. The second respondent is not entitled togive seniority to the persons whose appointments have beenregularised so as to adversely affect the vested rights of thedirectly recruited persons who hold the posts in a substantivecapacity. They cannot become junior to those whose appointments wereregularised merely because by way of temporary arrangements. We are,therefore, of the considered view that the second respondent would beat error in making the seniority list so as to give the originallytemporarily appointed persons seniority over the directly recruitedpersons. Hence, we direct the second respondent not to disturb theseniority of the appellants, who have been appointed directly and,instead, place them above the respondents 3 to 23.23. Though the appellants had challenged the notification ofthe second respondent, dated 21.03.2000, in toto, since we haveordered for their seniority over the respondents, it is not necessaryto quash the entire notification as sought for in the Writ Petition,as the very ordering of seniority of the appellants would subservethe ends of justice.24. Writ Appeal is allowed in part, modifying the order ofthe learned single Judge. No costs. Consequently, the connectedM.P.Nos.1,2 and 3 of 2007 are closed. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.22735/2008 :In view of the above judgment passed in the Writ Appeal, thisWrit Petition stands dismissed. No costs. Consequently, the connectedM.P.No.1 of 2008 is also dismissed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dixitTo1.The Secretary for Education, Government of Pondicherry, Pondicherry – 605 007.2.University Grants Commission, Bahadur Shah Zafar Marg, New Delhi – 110 002.3.The Deputy Registrar, Pondicherry University, R.V.Nagar, Kalapet, Puducherry – 605 014.4.The Secretary to Government, Union of India, Union Territory of Puducherry, Department of Art & Culture, Govt.of Puducherry, Puducherry.5.The Director of Art & Culture, Govt.of Puducherry, Puducherry.6.The Member Secretary, Bharathiar Palkalaikoodam, Ariyankuppam, Pondicherry.7.The Principal, Bharathiar Palkalaikoodam, Ariyankuppam, Pondicherry.+ 1 CC to Mr.P.R.Gopinathan, Advocate SR.NO.16393+ 1 CC to Mr.V.Ajay Kumar, Advocate SR.NO.16700 https://hcservices.ecourts.gov.in/hcservices/ + 1 CC to Mr.T.P.Manoharan, Advocate SR.NO.16198+ 1 CC to M/s. Chitra Sampath, Advocate SR.NO.16259+ 1 CC to Mr.Balan Haridas, Advocate SR.NO.15716+ 1 CC to Government Pleader for Pondicherry SR.NO.15754+ 1 CC to Mrs.Bharathi, Advocate SR.NO.15808+ 1 CC to M/s.Aiyar & Dolia, Advocate SR.NO.16364+ 1 CC to Special Government Pleader, SR.NO.15753W.A.No.546 OF 2007 &W.P.No.22735 OF 2008NM(CO)EM/28.4