Dr.K.Karunakaran v. The Government of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 19.3.2010CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULW.P.No.18701 of 2003Dr.K.KarunakaranPetitionervs. 1. The Government of Tamilnadu, rep by its Secretary to Government, Higher Education Department, Fort St. George, Chennai 600 009.2. The Secretary, University Grants Commission, Bahadur Shah Zafar Marg, New Delhi 110 002.3. The Director of Collegiate Education, College Road, Nungambakkam, Chennai 600 006.4. The Joint Director of CollegiateEducation, No.18, Tiruchendur Road, Tirunelveli 627 002. 5. The Registrar, Manonmaniam Sundaranar University, Abisehapatti, Tirunelveli – 12.6. The Secretary, M.D.T. Hindu College, Tirunelveli 627 010. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorarified mandamus calling forthe records of the first and third respondents especially the firstrespondent relating to his proceeding made in letter No.11227/E2/98-13 dated 7.1.2002 (affixed signature on 8.1.2003) and quash the sameas null and void, illegal and invalid and consequently directing thefirst respondent to approve the petitioner's appointment as MedicalOfficer cum Lecturer, appointed at the sixth respondent college in asanctioned post pursuant to G.O.Ms.No.661 Education Department dated https://hcservices.ecourts.gov.in/hcservices/

16.5.1990 with all service and monetary benefits with effect from21.1.1991 viz., the date of joining service and ordering to disburseto the petitioner the salary arrears from 21.1.1991. For petitioner : Mr.A.AmalrajFor RR1, 3 and 4: Mr.D.SrinivasanFor R2 : Mr.RajasekaranFor R5 : M/s.Rao & ReddyFor R6 : Mr.R.Jayapalan ORDERThe petitioner is an MBBS Degree holder. He was appointed asDoctor-cum-Lecturer in Physical Education Department of the sixthrespondent college. The appointment was made subject to the approvalof the University and the Deputy Director of Collegiate Education.Only after due advertisement was made in 'The Hindu' daily, he wasappointed as Doctor-cum-Lecturer in the said college. The Governmentof Tamil Nadu agreed to take over the course and bear all therecurring expenditure after five years. The second respondentUniversity Grants Commission refused to approve the appointment ofthe petitioner on the ground that he did not fulfil thequalification for the post of Lecturer. The second respondentsubsequently informed the sixth respondent college that thepetitioner might be requested to contact the State Government as thesecond respondent had not prescribed qualification for the post ofDoctor-cum-Lecturer. As the second respondent refused to approvethe appointment of the petitioner, the first respondent also washedoff its hands saying that his appointment could not be approved andconsequently, no grant can be sanctioned by the Government. Theaforesaid proceedings of the first respondent is under challengebefore this court. 2. Respondents 1, 3 and 4 filed their counter admitting theposition that the University Grants Commission originally undertookto meet out the recurring expenditure of the Physical Education,Health Education and Sports courses for five years. The firstrespondent undertook to take over the recurring expenditure as andwhen University Grants Commission's assistance came to an end. Asthe University Grants Commission, which controls all the Universitiesincluding the Manonmaniam Sundaranar University, has declared thatthe petitioner was unqualified to hold the post of Lecturer inPhysical Education, Health Education and Sports, the qualificationapproval orders issued by Manonmaniam Sundaranar University becameinvalid. The Government of Tamil Nadu has also not admitted thepetitioner as approved staff for the release of Government grant forthe academic year 1995-1996. The first respondent need notnecessarily accept the report submitted by the inspection commission.Inasmuch as the University Grants Commission has not accepted thequalification of the petitioner, no grant was released by the https://hcservices.ecourts.gov.in/hcservices/ University Grants Commission for the first five years and therefore,the first respondent also could not approve his appointment for thepurpose of sanctioning grants to meet the recurring expenditure forthe appointment of the petitioner. In view of the above, respondents1, 3 and 4 pray for dismissal of the writ petition. 3. The fifth respondent Manonmaniam Sundaranar University filedcounter stating that the petitioner failed to understand thedifference between the post of Medical Officer and the post ofLecturer in Physical Education. As per the University GrantsCommission norms, a person appointed to any Teaching Post shouldpossess post graduate degree in the respective discipline. A medicalperson with a Post Graduate qualification in Physical Education with55% of marks can be appointed as a Lecturer in a college. Thedecision of the University Grants Commission in respect ofqualification is the last word as pointed out by the Supreme Court.The sixth respondent college had taken risk in employing thepetitioner even after the end of academic year 1990-91 inspite of thefact that the University Grants Commission has, by its proceedingsdated 23.11.1991, communicated its disapproval of the petitioner forthe post of Lecturer in Physical Education and Anatomy. Therefore,the fifth respondent prayed for dismissal of the writ petition. 4. Learned counsel appearing for the petitioner would submitthat the sixth respondent was pleased to advertise for the post ofDoctor-cum-Lecturer and appointed the petitioner as Doctor-cum-Lecturer only after the Government approved the Physical EducationCourse in the sixth respondent college pursuant to therecommendations made by one man inspection commission appointed byMadurai Kamaraj University. It is his further submission that thefirst respondent also assured the sixth respondent college that theywould incur the recurring expenditure after the lapse of five years,the moment the grant sanctioned by the University Grants Commissioncame to an end. It is his further submission that University GrantsCommission has come out with three different reasons on variousoccasions to disapprove the appointment of the petitioner as Doctor-cum-Lecturer in the sixth respondent college. Drawing attention ofthis court to the qualification prescribed by the Madras University,the advertisement made by Alagappa University to fill up similar postin the University and the approval of such appointment order by thefirst respondent in Sarada College, Salem, the learned counselappearing for the petitioner would submit that in the matter ofapproval of the petitioner, discrimination was practised by the firstrespondent. 5. Learned counsel appearing for respondents 1, 3 and 4 wouldsubmit that the first respondent had not prescribed any qualificationfor the post of Doctor-cum-Lecturer. The University GrantsCommission had already expressed its disapproval of the appointmentof the petitioner with such qualification to the post of Doctor-cum- https://hcservices.ecourts.gov.in/hcservices/ Lecturer. As the University Grants Commission has not approved theappointment on the ground that the petitioner had not fulfilled therequired qualification, the first respondent cannot approve theappointment of the petitioner and release the grant as prayed for. 6. Learned counsel appearing for the Manonmaniam SundaranarUniversity would submit that the order of approval of thequalification of the petitioner was passed by the fifth respondentlong prior to the qualification prescribed by the University GrantsCommission. The University Grants Commission is the sole authorityin fixing the qualification for the post of Lecturer in the collegewhich comes under the purview of any of the Universities in theentire country. As the University Grants Commission has disapprovedthe qualification of the petitioner, the petitioner cannot harp onthe order of approval of the qualification passed by the fifthrespondent. At any rate, the petitioner cannot press for theapproval of the appointment by the first respondent as he had notacquired the required qualification, he submits. 7. The proceedings of the Madurai Kamaraj University issued on9.11.1988 to Dr.N.Krishnamoorthy, Principal, Sri Ramakrishna MissionVidyalaya Maruthi College of Physical Education beforeever theformation of Manonmaniam Sundaranar University, Tirunelveli, woulddisclose that the said Dr.N.Krishnamoorthy was appointed as one maninspection commission to inspect and report on the arrangement madeby the management of the sixth respondent college for furtheraffiliation in B.Sc three years degree course in Physical Education,Health Education and Sports. It has also been made clear in the saidcorrespondence that the University Grants Commission has accepted inprinciple the proposal of the college for the introduction of thesaid course. 8. Dr.N.Krishnamoorthy, having inspected the sixth respondentcollege, recommended that in the first year one of the AssistantProfessors among the three may be a Medical Doctor who could be ofhelp for teaching Anatomy and Physiology. The first respondent,thereafter, issued G.O.Ms.No.661 Education Department dated 16.5.1990granting permission to the sixth respondent college for appointmentof four Lecturers for the first year course of Physical Education,Health Education and Sports from the year 1990-91 onwards. The sixthrespondent also was reminded of the fact that the University GrantsCommission had already informed the first respondent that in case aninstitution was not able to start the course latest by the academicyear 1990-91, the approval would be withdrawn. It has also been madeclear that the Government, having approved the proposal of starting acourse in Physical Education, Health Education and Sports in thesixth respondent college from the year 1990-91 onwards, undertook tobear the recurring expenditure after five years period when thepatronage of University Grants Commission's assistance came to anend. https://hcservices.ecourts.gov.in/hcservices/

9. Emboldened by such approval of the proposal to start thecourse in Physical Education, Health Education and Sports and theassurance given by the first respondent that it would bear therecurring expenditure of the course after the expiry of five yearswhen the University Grants Commission's assistance came to an end,the sixth respondent gave advertisements in the leading newspapersincluding 'The Hindu' calling for the applications to fill up thepost of a Lecturer who has got MBBS Degree for the purpose ofteaching Physiology and Anatomy. 10. Having found that the petitioner Dr.K.Karunakaran possessedthe required qualification, the sixth respondent appointed him asLecturer for Physical Education, Health Education and Sports as perthe order of appointment dated 4.1.1991. 11. By the time the said appointment was made by the sixthrespondent, Manonmaniam Sundaranar University was formed atTirunelveli. The sixth respondent wrote a letter to the ManonmaniamSundaranar University seeking approval of the appointment of thepetitioner. Manonmaniam Sundaranar University, by its communicationdated 9.10.1991, approved the qualification of the petitioner for thepost of Lecturer for Physical Education with effect form 21.1.1991. 12. Very strange submission is made now by ManonmaniamSundaranar University that such an approval was accorded prior to theprescription of qualification made by the University GrantsCommission. If at all the qualification possessed by the petitionerdid not satisfy the prescription, if any, of the qualification madeby the University Grants Commission, Manonmaniam SundaranarUniversity should not have approved the qualification of thepetitioner and communicated the same to the sixth respondent. Itappears that as a result of such approval, the petitioner, whopossessed MBBS Degree, thought it fit to continue in the sixthrespondent college with the fond hope that his appointment would beapproved by the authority concerned. Had Manonmaniam SundaranarUniversity not approved the qualification of the petitioner, thepetitioner, having such qualification in Medicine, would not havecontinued in the sixth respondent college. 13. The University Grants Commission, the second respondentherein issued a proceeding dated 23.11.1991 disapproving theappointment of the petitioner on the ground that the petitioner didnot fulfil the qualification prescribed for the post of Lecturer.The very same second respondent again communicated to the sixthrespondent, by its proceedings dated 9.5.1992, responding to itsrequest for approval of appointment of the petitioner emanated fromthe sixth respondent, its inability to approve the appointment of thepetitioner having the qualification of MBBS degree. It made a remarkthat such a candidate should have atleast possessed a post graduatedegree with 55% marks for the post. A communication was sent by the https://hcservices.ecourts.gov.in/hcservices/ University Grants Commission to to a Member of Parliament, by itsletter dated 19.1.1996, in reply to his letter dated 19.12.1995,informing him that Doctor-cum-Lecturer Post was not a recognized postof the University Grants Commission, that the qualification for suchpost had not been prescribed by the Commission and that therefore,the matter had to be dealt with by the Tamil Nadu Government. Thepetitioner also was requested to contact the State Government in thatregard. 14. As rightly pointed out by the learned counsel appearing forthe petitioner, the University Grants Commission has come out withthree different reasons for expressing its disapproval of theappointment of the petitioner. At the first instance, it hadinformed the sixth respondent that the petitioner did not fulfil thequalification prescribed for the post of Doctor-cum-Lecturer. In thesecond communication, the second respondent informed the sixthrespondent that the petitioner should have atleast acquired PostGraduate Degree in Medicine with 55% marks. In the last and thirdcommunication, the second respondent took a stand that no suchqualification was prescribed for the post of Doctor-cum-Lecturer bythe University Grants Commission. 15. The sixth respondent started the course in PhysicalEducation only as per the Government Order issued by the firstrespondent. The first respondent, in fact, approved the proposal tostart such a course in the sixth respondent college. An one mancommission was appointed and the one man commission, having inspectedthe premises of the sixth respondent, recommended for commencing aPhysical Education Course in the college of the sixth respondent. Theone man commission had also strongly recommended for filling up oneof the post of Lecturer in the said course by a Medical Doctor. Thefirst respondent had virtually forced the sixth respondent tocommence the course at the earliest point of time latest by theacademic year 1990-91 informing the sixth respondent that theapproval for such a course would be withdrawn by University GrantsCommission if such a course was not commenced by then. TheGovernment also undertook to incur the recurring expenditure afterthe lapse of five years as and when the University GrantsCommission's assistance came to an end. Only after getting suchassurance from the Government, it appears that the sixth respondentstarted the Physical Education Course and appointed the petitioner asLecturer in its Physical Education Course. Now, the UniversityGrants Commission comes out with a plea that no prescription ofqualification was made for the post of Doctor-cum-Lecturer in thePhysical Education course. 16. The petitioner has produced a copy of the advertisementflashed in 'The Hindu' daily dated 23.2.2000 calling for the post ofLecturer-cum-Medical Officer to man the Department of PhysicalEducation at Alagappa University. But, of course, there is nomaterial to show that such a Lecturer, as called for in the said https://hcservices.ecourts.gov.in/hcservices/ advertisement, was appointed by Alagappa University. The sixthrespondent corresponded with Sri Sarada College of Education forWomen, which had informed the sixth respondent that with an approvalof the Director of Collegiate Education, a Medical Officer cumAssistant Professor was appointed in their college and necessarygrant was also being given by the Government. 17. It is brought to the notice of this court that University ofMadras has also prescribed MBBS Degree qualification for the post ofMedical Officer-cum-Lecturer for the Physical Education Course thatis conducted by it. 18. The above facts and circumstances would go to show thatthere are Medical Officer-cum-Lecturer serving in variousUniversities in the state of Tamil Nadu. Therefore, it is not as ifsuch a post is not at all sanctioned by Authorities concerned.19. Here is a case where the unfortunate petitioner, whopossesses MBBS Degree qualification joined with all smartness in theyear 1991 itself in the sixth respondent college on the fond hopethat his appointment would be approved by the authority concerned.The appointment made by the sixth respondent cannot also be foundfault with as the said appointment was made only after G.O.Ms.No.661Education Department dated 16.5.1990 was issued by the Governmentdirecting specifically the sixth respondent to commence the course inPhysical Education in the academic year 1990-91 itself. The sixthrespondent also was tempted by the first respondent saying that therecurring expenditure on the said course will be taken over by thefirst respondent when the University Grants Commission's assistancecame to an end. The University Grants Commission has taken anebulous stand as far as the qualification possessed by thepetitioner to occupy the position of the Doctor-cum-Lecturer. 20. At any rate, it is found that the University GrantsCommission had not prescribed the qualification for the post ofDoctor-cum-Lecturer at the time when a course was started by thesixth respondent. Inasmuch as the said course was started by thesixth respondent only with an assurance of the first respondent thatthe recurring expenditure would be borne by the Government as andwhen the University Grants Commission's assistance came to an end,the first respondent has to step in to shoulder the responsibility ofbearing the recurring expenditure for the course started by the sixthrespondent with the appointment of the petitioner as Doctor-cum-Lecturer atleast after the lapse of five years from the date when thepetitioner was appointed in the sixth respondent college in thatposition.21. The learned counsel appearing for the petitioner would bringto the notice of this court that the services of the petitioner wasavailed by Manonmaniam Sundaranar University for valuation of the https://hcservices.ecourts.gov.in/hcservices/ examination papers in Physical Education Course. But, unfortunately,the fifth respondent comes out with a plea that the petitioner isunfit to hold the position as he has not fulfilled the qualificationprescribed by the University Grants Commission. 22. There is no justification for the first respondent to washoff its hands having given all assurances to the sixth respondent tostart a course and appoint Lecturer to man the respective posts inthe said course. The petitioner, being a well qualified Doctor,would have earned a sizable income had he set up his privatepractice. Non-approval of the appointment of the petitioner in theabove circumstances would definitely result in injustice.23. At this stage, the learned counsel appearing for thepetitioner would submit that the petitioner is even prepared toforego the approval of his post and sanction of grant by theUniversity Grants Commission for the first five years commencing from4.1.1991 to 3.1.1996. Under such circumstances, necessary directionwill have to be issued to the first respondent to approve theappointment of the petitioner as Doctor-cum-Lecturer or MedicalOfficer-cum-Lecturer as the case may be from 4.1.1996 and releasenecessary grant to bear the recurring expenditure from the said date. 24. Therefore, the impugned proceedings in letterNo.11227/E2/98-13 dated 7.1.2002 issued by the first respondent isquashed as it smacks of illegality and consequently, the firstrespondent is directed to approve the petitioner's appointment asMedical Officer-cum-Lecturer of the sixth respondent college in asanctioned post pursuant to G.O.Ms.No.661 Education Department dated16.5.1990 with all service and monetary benefits with effect from4.1.1996 without causing disturbance to the seniority of thepetitioner in the sixth respondent college from 4.1.1991 within aperiod of three months from the date of receipt of this order. Thesalary arrears with effect from 4.1.1996 shall be disbursed to thepetitioner within a period of three months from the date of receiptof this order. Accordingly, the writ petition is allowed. There isno order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssk. https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government, Government of Tamilnadu, Higher Education Department, Fort St. George, Chennai 600 009.2. The Secretary, University Grants Commission, Bahadur Shah Zafar Marg, New Delhi 110 002.3. The Director of Collegiate Education, College Road, Nungambakkam, Chennai 600 006.4. The Joint Director of CollegiateEducation, No.18, Tiruchendur Road, Tirunelveli 627 002. 5. The Registrar, Manonmaniam Sundaranar University, Abisehapatti, Tirunelveli – 12.6. The Secretary, M.D.T. Hindu College, Tirunelveli 627 010. 1 cc To Mr.Row & Reddy, Advocate, SR.185131 cc To The Government Pleader, SR.18553W.P.No.18701 of 2003trm(co)pmk.19.4.2010.