K.Vasudevan v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 28.01.2008C O R A MTHE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANWrit Petition No. 30935 of 2007M.P.NO.2 of 20071.K.Vasudevan2.S.R.Vijayalakshmi . Petitioners Versus 1. The Government of Tamil Nadu, rep. by its Secretary, Higher Education Department, Fort St.George, Chennai 600 009.2. The Teachers Recruitment Board, rep. by its Chairman, EVK Sampath Maaligai, DPI Compound, College Road, Chennai 600 006. 3.K.Venmathi4.N.Om Muruga5.D.Sathes Kumar ..RespondentsRespondents 3 to 5 were impleaded asper order of this Court dated23.1.2008 inM.P.No.1 of 2008 by PSDJPRAYER : Petition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of Mandamus directing therespondents to interview the petitioners to the post of Lecturerin Electronic Science in Government College of Education for theyear 2006-2007 pursuant to the advertisement dated 18.9.2006 issuedby the 2nd respondent, consider and appoint the petitioners asLecturer in Electronic Science in the Government Colleges.For Petitioner : Mr.N.G.R.Prasad for M/s Row and ReddyFor Respondents 1 & 2:Mr.G.Sankaran Special Government PleaderFor Respondents 3 to 5: Mr.R.N.Amarnath https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioners, who were aggrieved, since they werenot called for interview for the post of Lecturers in theGovernment Arts and Science Colleges and Colleges of Education(2006-07), obtained an interim order on 21.9.2007 to keep two postsvacant. So, the Government urgently moved a petition to vacate thesaid interim order. Similarly, the persons who were impleaded on23.1.2008 also contended that they have been prejudiced and theirright of selection to the posts of Lecturer has been greatlyaffected, by the interim order. 2. Therefore, by consent, the writ petition itself istaken up for final disposal. 3. Both the petitioners claim to be highly qualified. Asregards petitioner No.1, his qualifications are as follows:July 1990 - B.Sc Electronics from Bharathiyar UniversityMay 1992 - M.Sc Applied Electronics from Bharathiyar UniversityAug 2003 - Enrolled for M.Phil - Electronics in part-time courseJuly 2005 - Theory Examination taken by the 1st petitioner.10.11.2006- M.Phil -Electronics awarded by Bharathiyar UniversityAs regards petitioner No.2, her qualifications are as follows:May 1992 - B.Sc Electronics from Bharathiyar UniversityMay 1994- M.Sc Applied Electronics from Bharathiyar UniversityNov 2004 - Enrolled for M.Phil - Electronics in part-time courseDec 2005 - Theory examination taken by the 2nd petitionerMay 2007 - M.Phil - Electronics awarded by Bharathiyar University4. On 18.9.2006, advertisement was issued calling forapplications for direct recruitment to the post of lecturers.The prospectus reads as follows:Qualifications:a) All candidates other than SC/ST:Candidates with (i) Post graduate degree in thesubject with minimum 55% marks and (ii) a pass inthe UGC/CSIR/JRF/NET Lecturer-ship test or StateLevel Educational Testing (SLET) (OR)Candidates with (i) Postgraduate degree in thesubject with a minimum of 55% and (ii) M.Philor Ph.D. degree or both, are eligible toapply. https://hcservices.ecourts.gov.in/hcservices/ (b) For SC/ST candidates: Candidates with (1)Postgraduate degree in the subject withminimum 50% marks and (ii) a pass in theUGC/CSIR/JRF/NET Lecturer-ship test or StateLevel Educational Testing (SLET)(OR)Candidates with (i) Postgraduate degree in thesubject with a minimum of 50% marks and (ii)M.Phil or Ph.D degree or both, are eligible toapply.11. Scheme of Selection:Marks will be awarded to all candidates basedon the information given by them in theirApplication forms, as per the criteria givenbelow:1Teaching experience inUniversities/Government/aided colleges Maximum/Self financing colleges in the approved post(1 mark for each completed year) Maximum15 marks2Ph.D. qualification (obtained before13.10.2006) 12 mark3M.Phil/Ph.D with SLET/NET qualification(obtained before 13-10-2006) 6 marks4Books/Articles published (referred) in therelevant Subject (2 marks per book and 1 markper Article) 10 marks5Interview marks (Test of Subjectknowledge/Teaching ability7 marks Total50 marks The petitioners were not called for interview on the ground thatthey have not obtained their M.Phil/Ph.D before 13.10.2006.Aggrieved by this, the present writ petition has been filed.5. Mr.N.G.R.Prasad, learned counsel appearing for thepetitioners submitted that the posts of lecturers are filled up onthe basis of teaching experience, high qualifications etc., and tosecure the post, talent in the academic field is necessary. Whenthat is so, to reject the petitioners' applications merely on theground that they had not obtained degrees on a particular datewould be to exclude merit. Learned counsel further submitted thatwith regard to one Kalaiselvi, who had not obtained the M.Phildegree, relaxation has been done as per information, obtainedunder the Right to Information Act. Even in the affidavit it is https://hcservices.ecourts.gov.in/hcservices/ specifically alleged that one Suresh, who acquired Ph.D degree inTamil, was called for interview, though he had not obtained hisPh.D degree before 13.10.2006. Similarly, one Damodaran, who hadobtained Master Degree in Physics, had applied for the post ofLecturer in Electronic Science and he had been called forinterview, as also one Uma Maheswari. Learned counsel for thepetitioners submitted that when, as on date, both the petitionershave obtained the necessary qualifications, they should be calledfor interview. Further, learned counsel for the petitionerssubmitted that as per Clause 5 extracted above, it is pertinent tonote that the candidates should obtain a Post-Grauate degree in thesubject with minimum 55% marks, but M.Phil or Ph.D is only anoption and it was also submitted that when that is so, thepetitioners could have been called for interview and even if the 6marks amended for M.Phil/Ph.D with SLET/NET qualification or 12marks amended for Ph.D. Qualification can be awarded to thepetitioners, still their case could have been considered on thebasis of the marks they obtained for teaching experience, interviewmarks and the books and articles published. Learned counselfurther submitted that at least, they would have then thesatisfaction that their case has been considered on merits.Learned counsel for the petitioners referred to variouscertificates, copies of which have been enclosed in the typed setof papers to show that they are not only qualified academically,but they have been recognised as guides for M.Phil programmes andalso external examiners and they have been appointed as members ofBoard of studies. Therefore, appointment of petitioners asLecturers will be benefitted to the students and the appointmentshould not be denied merely on the basis of cut-off date whichwould be unfair and unjust.6. Mr.G.Sankaran, learned Special Government Pleadersubmitted that on the basis of the petitioners' own affidavit, itis possible to demonstrate that they are not entitled to anyrelief. The prospectus would show that the candidates must obtainM.Phil degree before 13.10.2006. The last date for submission ofapplication was 13.10.2006 as seen from paragraph 4 of theaffidavit and therefore it is for this reason, 13.10.2006 is fixedas the date. The respondent cannot be asked to entertainapplications from persons who had not obtained the requisitequalification as on the date of submission of their applications.Learned Special Government Pleader also submitted that theconstruction placed by the learned counsel for the petitionersupon the Clause 5 relating to Qualification is not correct. Theapplicant should have passed PG +M.Phil or PG+ Ph.D orPG+M.Phil+Ph.D. It is not sufficient if the applicant possesses aPost Graduate degree in the subject with 55% marks. https://hcservices.ecourts.gov.in/hcservices/

7. Learned Special Government Pleader produced the relevantUGC notification in this regard, which provides as follows: "Good Academic record with at least 55% ofthe marks or, an equivalent grade of B in the 7point scale with latter grades O,A,B,C,D,E and Fat the Master's degree level, in the relevantsubject from an Indian University, or, anequivalent degree from a foreign University,candidates". Besides fulfilling the abovequalifications, candidates should have clearedthe eligibility test (NET) for lecturersconducted by the UGC, CSIR or similar testaccredited by the UGC".The amendment to this has been introducedas per which "NET or SLET of an accredited Testshall remain the compulsory requirement forappointment as Lecturer for those with post-graduate degree. However, the candidate havingPh.D Degree in the concerned subject areexempted from NET or SLET or an accredited Testfor PG level and UG level teaching. Thecandidates having M.Phil degree in theconcerned subject are exempted from NET or SLETor an accredited Test for UG level teachingonly"8. In addition, learned Special Government Pleaderreferred to the Judgment of the Division Bench dated 24.3.2007where the proceedings came to be challenged and the Division Benchsuggested the following :Therefore, looked at from any angle, weare convinced that the weightage marks to beawarded to P.G.Degree holders with SLET orNET, M.Phil with SLET or NET and Ph.D. cannotbe prescribed with a very wide gap. In thatrespect even if the proposal of the StateGovernment to provide the weightage marks of 5for P.G. degree holders with SLET or NET and 6for M.Phil. candidate with SLET or NET byreducing the weightage marks to the level of 9for Ph.D degree holders from 12 would meet theends of justice. To the above we add that theM.Phil holder of pre 31.12.1993 can also beequated with the M.Phil holder with SLET orNET in order to gain the weightage marks of 6to be prescribed. https://hcservices.ecourts.gov.in/hcservices/

34.The learned Advocate General in hissubmissions also stated that the marks to beawarded under the heading teaching experienceis likely to be lowered as 2 marks for eachcompleted year subject to the maximum of 15marks. Such an alteration in the prescriptionis quite reasonable and therefore, we do notfind any thing wrong in such a proposal of theState Government. Since in our consideredopinion the award of 9 marks for Ph.D. degreeholders would be more appropriate, the excess3 marks can be added to the interview marks of7 by making it as 10 so that the selectioncommittee will be in a better and comfortableposition to assess the suitability ofcandidates based on the relevant criteriaprescribed in the U.G.C.Regulations, namely,aptitude for teaching and research, ability tocommunicate clearly and effectively andability to analyse the discussion which wouldbe much more relevant criteria while makingthe selection from among the eligiblecandidates for the post of Lecturers. 35. With the above modification in the awardof marks, namely, the provision of 9 marks forPh.D degree holders and enhancing the interviewmarks from 7 to 10 and also providing 5 marks forthe holders of P.G.degree with SLET or NET and 6marks for M.Phil candidates with SLET or NET withthe maximum of 15 marks for experience and 5 marksfor research contribution, books, articlespublished will be more appropriate while going infor the selection of candidates for the post ofLecturers.39.In the result, W.P.Nos. 32958 and36972 of 2006 and all the connectedMiscellaneous Petitions are dismissed. All theother writ petitions are partly allowed andwhile setting aside the prescription of marksas prescribed in paragraph 6(e) ofG.O.Ms.No.197, dated 05.07.2006 as amended inthe Letter dated 11.08.2006 as well asparagraph 11 of the prospectus annexed to theAdvertisement No.4/2006-07, the Firstrespondent State is directed to issue suitableamended notification as directed in paragraphs https://hcservices.ecourts.gov.in/hcservices/ 33 to 35 of this Order. Consequently connectedpending Miscellaneous Petitions are closed. Nocosts."9. Pursuant thereto, the Government has issued G.O.Ms.No.106dated 14.5.2007 and G.O.Ms.No.146, Higher Education (F2)Department dated 1.6.2007. Accordingly, the Government modifiedpara 6(e) of the G.O.M.No.197, HigherEducation, dated 5.7.2006 as amended in the Government letterNo.6673/F2/2006-6 dated 11.8.2006 as follows:1For teaching experience inUniversities /Government/aidedColleges/self financing colleges inthe approved post including theteaching experience ) in the relevantsubject) of the candidates inMedical/Engineering/Law Colleges.(2 marks for each year subject tomaximum of 15 marks) 15 marks2 For Ph.D qualification in theconcerned subject 9 marks3 For M.Phil with SLET/NET (or) personswho have completed M.Phil degree priorto 31st December,1993 6 marks4PG degree with SLET/NET 5 marks5Research contribution/Books/ArticlePublished 5 marks6 Interview marks 10 marks Total 50 marks 10.Subsequently, by to G.O.Ms.No.146 Higher Education (F2)Department, dated 1.6.2007, it was decided as follows: <) fy;tpj; jFjp kw;Wk; Mrphpah; gzp mDgtr; rhd;wpjGf;Fkl;Lk; 20/10/06 (tphpt[iuahsh; gjtpf;fhf tpz;zg;g';fisbgWtjw;F eph;zapf;fg;gl;l filrp njjp) vd;gij cut off dateMf eph;zapf;fyhk;/c) muR fojk; (o) vz;/218. cah;fy;tp ehs; 5/12/06 y;. Vw;fdntbjspt[gLj;jg;gl;lthW 19/9/91w;F Kd; KJfiy gl;lk; bgw;wth;fs; https://hcservices.ecourts.gov.in/hcservices/ Ph.D gl;lk; bgw;wpUg;gpd; mth;fspd; KJfiyg; gl;lj;jpy; 55%kjpg;bgzf;s bgw ntz;Lk; vd;gjw;F 5% tiu jsh;t[ tH';fp 50%vd;gij Vw;Wf;bfhs;syhk;/C) brd;id cah;ePjpkd;wj;jpd; 24/3/07 ehspl;l jPh;g;gpy;gzpf;fg;gl;lthW. kw;Wk; murhiz (epiy) vz;.106 cah;fy;tp ehs;14/6/07 kw;Wk; muR foj vz;/24317//vg;.2/06-8 ehs;.14/5/2007y;Mizapl;lthW. jFe;j jpUj;jpa mwptpg;gpid (a suitableamended notification) btspapl ntz;Lk;/ tpz;zg;gjhuh;fspd;fy;tpj; jFjpf;F 20/10/2006 vd;gij cut off njpjahf eph;zapf;fKot[ bra;ag;gl;Ls;sjhy; jpUj;jpa mwptpg;gpy; g[jpatpz;zg;g';fis bgwj; njitapy;iy/ Vw;fdnttpz;zg;gpj;jth;fs; kl;Lk; khw;wp mikf;fg;gl;l kjpg;bgz;fs;mog;gilapy; TLjy; tpgu';fs; VnjDk; mDg;g tpUk;gpdhy;mDg;gyhk; vd;gij Fwpg;gghfj; bjhptpf;f ntz;Lk;/.Therefore, instead of 13.10.2006, 20.10.2006 is fixed as cut-offdate and it was decided that fresh application need not be calledfor. 11. Learned Special Government Pleader submitted thattherefore even going by the Division Bench order, the petitionersare not entitled to claim any right. As regards the allegation thatcertain persons were called for interview contrary to theconditions which are relied on by the Government to deny thepetitioners' right to be called for interview, Mr.G.Sankaran ,learned Additional Government Pleader submitted that it is truethat the said Kalaiselvi was called for interview because her namewas omitted to be deleted, but subsequently it was found that shedid not satisfy the condition with reference to acquisition ofqualification before the cut-off period. Therefore, she was notcalled for interview. As regards Mr.Damodaran, it was submittedthat since he has not obtained the Post graduate degree in the saidsubject viz., Electronic science, but he had obtained Post graduatedegree in Physics, his application was also not considered. Learnedcounsel also produced the list of provisional selected candidatesfor appointment and they are as follows:1. *F19120004 -V.Nagaraj2. *F19110024 -Balaji Prasad M3. *F19110004 - R.Mahendran4. *F19110001 - S.Kalidass5. *F19110014 -Sri Devi A P6. *F19180002 -Rajesh Kanna GThe names mentioned by the petitioners in the affidavit as 'unqualified persons" called for interview, do not find place in thelist. https://hcservices.ecourts.gov.in/hcservices/

12. As regards the merits of the matter, admittedly, thedate of application is 13.10.2006. Therefore, the respondents areentitled to fix that as the date for possessing requisitequalification. When the application clearly stipulates therequirement of M.Phil or P.hd degree or both, both the petitionersought to have obtained such qualification on the date ofapplication, but they did not have the requisite qualification. Theconstruction placed by the learned counsel for the petitioners onClause 5 of the prospectus cannot be accepted. The said clause canonly be read that all the candidates other than SC/ST, shouldpossess 55% in Post-graduate degree in the subject and M.Phil orPh.D degree or both. It is admitted that both are highly qualified,but on the date of calling for interview, the petitioners' did nothave M.Phil degree or Ph.D degree. Of course, it was submitted bythe learned counsel for the petitioners that they had submittedtheir thesis much earlier,but their guide had caused delay. Such asubmission cannot add weight to the petitioners' case. The factremains that on the last date for submission of application i.e. on13.10.2006, the petitioners did not possess the requirement ofM.Phil degree or Ph.D degree. Even assuming that their allegationsagainst other persons who were selected without qualification, istrue, because they are not made as parties, I am not dealing withthat. In any event, it is submitted by Mr.G.Sankaran learnedAdditional Government Pleader that they were not selected and thestatement is accepted. If they are aggrieved by the selection ofany unqualified candidates, they can challenge the same in themanner known to law. But, on that ground, the petitioners, who didnot possess the requisite qualification on the date of application,cannot claim as a matter of right that their application should beconsidered and they should be called for interview.13. The writ petition fails and the same is dismissed. Nocosts. Consequently, M.P.No.2 of 2007 is also dismissed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.VJY https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Govt. Higher Education Department, Fort St.George, Chennai 600 009.2. The Chairman, The Teachers Recruitment Board, EVK Sampath Maaligai, DPI Compound, College Road, Chennai 600 006. 1 cc to M/s. Row and Reddy, Advocate, sr. 36982 ccs to Government Pleader, sr. 3920, 4441W.P.NO.30935 OF 2007and M.P.NO.2 OF 2007AVM (CO)kk 18/2