Dr. M.D. Rajukumar v. The Registrar Bharathiar University Coimbatore & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated :18.7.2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. Nos. 8559 and 25637 of 2001Dr. M.D. Rajukumar.. Petitioner in both W.Ps. vs.1.The Registrar Bharathiar UniversityCoimbatore.. R1 in both W.Ps. 2.The Vice-ChancellorBharathiyar UniversityCoimbatore-641 046.. R2 in W.P. No. 8559 / 20013.The SecretaryUniversity Grants CommissionBahadur Shar Zafar MargNew Delhi.. R2 in W.P. No. 25637/20014.The DirectorDistance Educational CouncilIndira Gandhi National Open UniversityMaidan GarhiNew Delhi.. R3 in W.P. No. 25637/2001W.P. No. 8559 of 2001 filed under Article 226 of the Constitutionof India seeking for issuance of writ of Certiorarified Mandamuscalling for the records connected with the Advertisement No. 10011-1/E3/2001 dated 02.3.2001 calling for the post of appointment ofDirector and quash the same and direct the respondent University tocall for the post of appointment of Director by fresh advertisementaccording to the norms and guidelines prescribed by the UniversityGrant Commission.W.P. No. 25637 of 2001 filed under Article 226 of the Constitutionof India seeking for issuance of writ of Certiorarified Mandamuscalling for the records connected with the Advertisement No.18488/E3/2001 dated 27.11.2001 issued by the first respondentpublished in the New Indian Express dated 28.11.2001 calling forthe post of appointment of Director, School of Distance Education,Bharathiar University, Coimbatore and quash the same and direct thefirst respondent to call for the post of appointment of the https://hcservices.ecourts.gov.in/hcservices/ Director, School of Distance Education, Bharathiar University,Coimbatore by fresh advertisement according to the norms andguidelines prescribed by the 2nd Respondent, the University GrantCommission.For Petitioner : Dr. M.D. Rajukumar (party-in-person)For Respondent 1: Mr. R. Viduthalai, SC for Ms. N. KavithaFor R2 : Mr. P.R. GopinathanFor R3 : Mr. P. GururamachandranC O M M O N O R D E RBoth the writ petitions were filed by the same petitioner.In in W.P. No. 8559 of 2001, the challenge was to the advertisementdated 02.3.2001 made by the first respondent University calling forthe post of Director, School of Distance Education. 2.By the said advertisement, which was found in the Hindudated 07.3.2001 for the post of Director, the qualification wasprescribed similar to that of Controller of Examinations, whichreads as follows:-"Qualifications:1.A Master's Degree with at least 55% of marks orits equivalent grade of B in the UGC seven pointscale.2.At least 15 years of experience as Lecturer(Sr. Scale) / lecturer with eight years in Reader'sgrade with experience in educational administration(or)Comparable experience in research establishment and/ or other institutions of higher education.(or)15 years of administrative experience of which 8years as Deputy Registrar or an equivalent post."The petitioner is aggrieved by the last category wherein non-teaching staff of the Universities, who are holding the post ofDeputy Registrar, have also been allowed to compete for the saidpost. The grievance of the petitioner is that the Director ofSchool of Distance Education must be an academic person and thesaid post should not be filled up with the non-teaching staffholding the post of Deputy Registrars. https://hcservices.ecourts.gov.in/hcservices/

3.On 26.4.2001, interim injunction was granted for a periodof eight weeks restraining the University from conducting theinterview. Subsequently, by an order dated 17.10.2001, theinjunction was vacated and it was stated that if any selection madewill be subject to the result of the writ petition. 4.It was thereafter, the University again called forcandidates through press advertisement. The said advertisementappeared in the Indian Express dated 28.11.2001 prescribing thevery same qualification which was earlier objected to by thepetitioner to the aforesaid post. The petitioner, once again,moved this Court with W.P. No. 25637 of 2001 and by an order dated21.12.2001, it was stated that the selection process can go on butthe post should not be filled up pursuant to any selection made.Subsequently, by an order dated 22.01.2002, this Court permittedthe University to fill up the post pursuant to the selection made.The petitioner filed a writ appeal being W.A. No. 170 of 2002 andthe writ appeal was dismissed by the Division Bench by an orderdated 23.01.2002. Therefore, both the writ petitions have nowbeen posted for final disposal.5.In view of the inter-connectivity between the two cases,they were heard together and a common order is being passed.6.Heard the arguments of Dr. M.D. Rajukumar, petitionerappearing in person and Mr. R. Viduthalai, learned Senior Counselappearing for Ms. N. Kavitha, for the University, Mr. P.R.Gopinathan, learned counsel for the second respondent and Mr. P.Gururamachandran, learned counsel for the third respondent andperused the records.7.The main submission of the petitioner was that the postof Director of School of Distance Education is a teaching post andno non-teaching staff can be allowed to fill up the said post.Many Universities including Central Universities have treated thisas a teaching post and prescribed only qualified Lecturers to applyfor the said post. When that was the case, it is not open to theSyndicate to prescribe an additional feeder category from the non-teaching side. He also submitted that the guidelines of theUniversity Grants Commission (UGC) also treats such post as anacademic post only. 8.On the side of the respondent University, it was statedthat it is well open to the University to prescribe qualificationsfor various posts and insofar as the University is concerned, theRegistrar, who is the Principal Executive officer, is always drawnfrom the teaching side though he is basically an Academician. Theother posts of Executive Officers such as Controller of Examinationare all treated subordinates to the post of Registrar. When thepost of Director of School of Distance Education was created, it https://hcservices.ecourts.gov.in/hcservices/ was treated on par with the post of Controller of Examination.There is nothing wrong in prescribing different feeder categoriesfor the said post. There is no mandate for appointing onlyacademic staff and any direction or instructions given by theDistance Education Council [for short, 'DEC'] can only be advisoryand not binding on the University. It was also submitted that thepetitioner, having participated in the selection process, cannotchallenge the very prescription of qualification and the Universityin the very best interest of distance education programme, has alsoprovided for avenue of promotion from the category of DeputyRegistrars who have long administrative experience in theUniversity and can effectively deal with the School of DistanceEducation (SDE). 9.In this context, it is necessary to refer to the counteraffidavit dated 03.5.2006 filed by the DEC. With reference tothe post of Director of DEC, the following is averred in paragraphs5 and 6 of the counter:-Para 5:"I further humbly submit in the same manner as abovethat for the purpose of recruitment of Director the3rd respondent has confirmed that assessment inparagraph 10 relevant to Distance Education CouncilIGNOU with respect to para 24 3rd respondent DistanceEducation Council is of the view that theDirectorate of a Distance Education Institute /correspondence course Institute is basically meantfor development and delivery of academic programmes.These are basically academic activities and theDirector of such Institute should be marked /treated as an Academic post.Para 6:For purposes of elucidating the matter, I am advisedto state that the post of a Director for theDistance Education Council is purely for academicfunction and not administrative work. While so,the guidelines, norms suggested by us are to befollowed in the best interest of the beneficiarieswho adopt the distance education procedure."10.With reference to the binding nature of the instructions,the following averment is made in paragraph 3 of the counter:-Para 3:"The main dispute is between the petitioner and the1st respondent, Bharathiar University, Coimbatore.It is due to the fact that University GrantsCommission and Distance Education Council have beenmade parties as second and third respondentsrespectively because the petitioner is relying uponthe policies and the guidelines issued by them. Inthis matter, the 3rd respondent being the apex bodyunder the preview of the IGNOU, New Delhi isrendering instructions, advices and guidance for the https://hcservices.ecourts.gov.in/hcservices/ selections of Directors for the Distance EducationCouncils functioning under the regionaluniversities. They are however purelyrecommendatory and not obligatory, for the Regionalauthorities like the first respondent." (Emphasisadded)11.It is in the light of these rival submissions, the matterwill have to be looked into. 12.The DEC was established under Section 5(2) of the IndiraGandhi National Open University Act, 1985 made by the Parliament.The functions of the Council is to act like an apex body forpromotion, determination and maintenance of standards and co-ordination of open and distance education in India. Thepetitioner had provided a number of Universities having distanceeducational institutions. In most of the Universities, theDirector of such institution was drawn from academics. It isonly in the respondent University, they have provided for a feedercategory providing for a non-teaching staff to head an academiccentre such as SDE.13.The University has filed a detailed counter affidavitdated 18.01.2002 stating that the instructions issued by the DECwill not have a binding effect on other Universities. Under Statute5(5)(a) formed under the Bharathiar University Act, the Universityhas power to fix, change or modify the qualification for allteaching and non-teaching posts. It was also stated that the postof Director of School of Distance Education is not included in theStatutes of the University. It was for this reason, they havebrought it on par with the Controller of Examination and the age ofretirement is fixed as 58 years which is the age prescribed fornon-teaching staff. It was also stated that the norms prescribedby the UGC for the post of Registrar and equivalent post are almoston par with the teaching staff of the University. The Universityhas prescribed the qualification for the post of Controller ofExamination by incorporating as part of the Statute and the samewas also assented by the Chancellor of the University on 01.8.2001.Since the Syndicate is the body which is in charge of creating postand also can prescribe qualifications, the petitioner cannot haveany objection to the same.14.The petitioner, Dr. M.D. Rajukumar, relied upon thejudgments of the Supreme Court in University of Delhi v. RajSingh and others [1994 Supp (3) SCC 516] and University GrantsCommission v. Sadhana Chaudhary and others [1996 (10) SCC 536].Both the judgments are for the purpose of showing that the UGCnorms have a binding effect over the University while prescribingqualifications for the teaching posts. 15.In this case, the question is whether the circularsissued by the third respondent DEC can be referable to Entry 66 of https://hcservices.ecourts.gov.in/hcservices/ List 1 of the Seventh Schedule of the Constitution so as to have abinding effect on the University. The contention of theUniversity was that it does not have a binding effect. Even theDEC in its counter, had stated that it is only advisory in nature.Therefore, the argument of the petitioner is on the presumption,that the circulars are mandatory and referable to Entry 66 of List1 of Seventh Schedule, cannot be accepted.16.In this context, Mr. R. Viduthalai, learned SeniorCounsel for the first respondent University brought to the noticeof this Court the latest judgment of the Supreme Court in BasicEducation Board, U.P. v. Upendra Rai and others [2008 (3) SCC432] wherein M. Katju, J., speaking for the Bench, dealt with therelative provisions of the NCTE Act vis-a-vis the power of theState Government under Entry 25 of List III of Seventh Schedule.The following passages found paragraphs 22 and 23 may be usefullyreproduced:-Para 22:"It may be mentioned that the word "institution" isdefined in Section 2(e) of the NCTE Act to mean aninstitution which offers courses or training inteachers' education. Thus, the NCTE Act does notdeal with the ordinary educational institutions likeprimary schools, high schools, intermediate collegeor university. The word "institution" as definedin Section 2(2) [sic 2(e)] only means teachers'training institutes and not the ordinary educationalinstitutions. Hence, it is only the teachers'training institutions which have to seek grant ofrecognition or continuation of recognition from theRegional Committee. The ordinary educationalinstitution do not have to seek any such recognitionor continuation under the NCTE Act. In fact, theNCTE Act does not relate to the ordinaryeducational institution at all. We, therefore,fail to understand how it can be said that the NCTEAct overrides the U.P. Basic Education Act and theRules made thereunder. In fact, the two Actsoperate in altogether two different fields. TheNCTE Act deals with the teachers' traininginstitutions while the U.P. Basic Education Actdeals with the ordinary primary schools in U.P. andnot any teachers' training institute. Theargument of learned counsel for the respondent isthus wholly misconceived.Para 23:The impugned judgment also proceeds with the samefallacy. The Division Bench, in our opinion,wrongly relied upon Article 254 of the Constitution.Article 254, as stated above, has no application inthis case at all because the two Acts operate in twodifferent fields. In our opinion, the Division https://hcservices.ecourts.gov.in/hcservices/ Bench, therefore, wrongly held that the respondent(the appellant before the Division Bench) had therequisite qualification for being appointed as anAssistant Master in a junior basic school."17.On the strength of the said decision as well as on thebasis of the counter affidavit of the DEC, the learned SeniorCounsel argued that the writ petitions filed by the petitioner aremisconceived. 18.This submission of the learned Senior Counsel appearingfor the University is well founded. Therefore, in the absence ofany mandatory obligation on the part of the University to be boundby the circulars issued by the DEC, this Court cannot by a writ inthe nature of mandamus direct the University to prescribe aparticular qualification for the post of Director of SDE.Further, the University Syndicate is empowered to prescribequalification and also create posts. In the present case, theadvertisement itself states that the post is temporary in natureand the persons are liable to be retired at the age of 58 yearsthus making it clear that it is only a non-academic post.Therefore, this Court is unable to interfere with the advertisementissued by the respondent University and the consequential selectionmade by them. 19.However, the wealth of materials produced by thepetitioner clearly shows that in all the universities, the saidpost has been reserved for the academic side and academicians onlyare posted. Since the Statutes of the University had not beenamended and the post has not been incorporated as part of thestatutes, there is nothing wrong in the present advertisement.But, at the same time, considering the fact that the Parliament hadcreated DEC under Section 5(5)(2) of the IGNOU Act and such councilhas been permitted to lay down co-ordination and standards in thematter of distance education by all universities concerned, theviews expressed by the DEC cannot be undermined by the Universitywhen it frames statute providing for the post of Dean of School ofDistance Education. It must be only an academic position like anyother Department of the University. Therefore, the University iswell-advised that while framing the statutes creating the posts ina permanent nature, should take note of the advise tendered by theDEC and keep it as part of the academic post and also providenecessary qualifications treating the Dean of School of DistanceEducation as an Academician and not as an Executive Officer of theUniversity. This will enhance the prestige of the University aswell as SDE.20.In the light of the above, this Court is not going intoother issue as to whether the petitioner is estopped from filingthe present writ petitions having participated in the selectionprocess and other contentions. Except for the above observations, https://hcservices.ecourts.gov.in/hcservices/ the writ petitions deserve to be dismissed. Accordingly, they aredismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTo1.The Registrar Bharathiar UniversityCoimbatore2.The Vice-ChancellorBharathiyar UniversityCoimbatore3.The SecretaryUniversity Grants CommissionBahadur Shar Zafar MargNew Delhi4.The DirectorDistance Educational CouncilIndira Gandhi National Open UniversityMaidan GarhiNew Delhi+ 1 CC To M/s. Kavitha Nithyanandam, Advocate SR NO.38328+ 1 CC To M/s. P.R.Gopinath, Advocate SR NO.38582+ 1 CC To M/s.V.K.Rajagopalan, Advocate SR NO.36527+ 1 CC to the Government Pleader SR NO.36864+ 1 CC To Mr.M.D.Raju Kumar, Party in person, SR NO. 38282W.P. Nos. 8559 & 25637 of 2001MG(CO)SRA(29/07/2008)