Dr. K. Karunakaran vs The Government of Tamilnadu and Others

M. Jeyapaul, J.—The petitioner is an MBBS Degree holder. He was appointed as Doctor-cum-Lecturer in Physical Education Department

of the sixth respondent college. The appointment was made subject to the approval of the University and the Deputy Director of Collegiate

Education. Only after due advertisement was made in ''The Hindu'' daily, he was appointed as Doctor-cum-Lecturer in the said college. The

Government of Tamil Nadu agreed to take over the course and bear all the recurring expenditure after five years. The second respondent

University Grants Commission refused to approve the appointment of the petitioner on the ground that he did not fulfil the qualification for the post

of Lecturer. The second respondent subsequently informed the sixth respondent college that the petitioner might be requested to contact the State

Government as the second respondent had not prescribed qualification for the post of Doctor-cum-Lecturer. As the second respondent refused to

approve the appointment of the petitioner, the first respondent also washed off its hands saying that his appointment could not be approved and

consequently, no grant can be sanctioned by the Government. The aforesaid proceedings of the first respondent is under challenge before this

Court.

Respondents 1, 3 and 4 filed their counter admitting the position that the University Grants Commission originally undertook to meet out the

recurring expenditure of the Physical Education, Health Education and Sports courses for five years. The first respondent undertook to take over

the recurring expenditure as and when University Grants Commission''s assistance came to an end. As the University Grants Commission, which

controls all the Universities including the Manonmaniam Sundaranar University, has declared that the petitioner was unqualified to hold the post of

Lecturer in Physical Education, Health Education and Sports, the qualification approval orders issued by Manonmaniam Sundaranar University

became invalid. The Government of Tamil Nadu has also not admitted the petitioner as approved staff for the release of Government grant for the

academic year 1995-1996. The first respondent need not necessarily accept the report submitted by the inspection commission. Inasmuch as the

University Grants Commission has not accepted the qualification of the petitioner, no grant was released by the University Grants Commission for

the first five years and therefore, the first respondent also could not approve his appointment for the purpose of sanctioning grants to meet the

recurring expenditure for the appointment of the petitioner. In view of the above, respondents 1, 3 and 4 pray for dismissal of the writ petition.

The fifth respondent Manonmaniam Sundaranar University filed counter stating that the petitioner failed to understand the difference between the

post of Medical Officer and the post of Lecturer in Physical Education. As per the University Grants Commission norms, a person appointed to

any Teaching Post should possess post graduate degree in the respective discipline. A medical person with a Post Graduate qualification in

Physical Education with 55% of marks can be appointed as a Lecturer in a college. The decision of the University Grants Commission in respect of

qualification is the last word as pointed out by the Supreme Court. The sixth respondent college had taken risk in employing the petitioner even

after the end of academic year 1990-91 inspite of the fact that the University Grants Commission has, by its proceedings dated 23.11.1991,

communicated its disapproval of the petitioner for the post of Lecturer in Physical Education and Anatomy. Therefore, the fifth respondent prayed

for dismissal of the writ petition.

Learned Counsel appearing for the petitioner would submit that the sixth respondent was pleased to advertise for the post of Doctor-cum-

Lecturer and appointed the petitioner as Doctor-cum-Lecturer only after the Government approved the Physical Education Course in the sixth

respondent college pursuant to the recommendations made by one man inspection commission appointed by Madurai Kamaraj University. It is his

further submission that the first respondent also assured the sixth respondent college that they would incur the recurring expenditure after the lapse

of five years, the moment the grant sanctioned by the University Grants Commission came to an end. It is his further submission that University

Grants Commission has come out with three different reasons on various occasions to disapprove the appointment of the petitioner as Doctor-

cum-Lecturer in the sixth respondent college. Drawing attention of this Court to the qualification prescribed by the Madras University, the

advertisement made by Alagappa University to fill up similar post in the University and the approval of such appointment order by the first

respondent in Sarada College, Salem, the learned Counsel appearing for the petitioner would submit that in the matter of approval of the petitioner,

discrimination was practised by the first respondent.

Learned Counsel appearing for respondents 1, 3 and 4 would submit that the first respondent had not prescribed any qualification for the post

of Doctor-cum-Lecturer. The University Grants Commission had already expressed its disapproval of the appointment of the petitioner with such

qualification to the post of Doctor-cum-Lecturer. As the University Grants Commission has not approved the appointment on the ground that the

petitioner had not fulfilled the required qualification, the first respondent cannot approve the appointment of the petitioner and release the grant as

prayed for.

Learned Counsel appearing for the Manonmaniam Sundaranar University would submit that the order of approval of the qualification of the

petitioner was passed by the fifth respondent long prior to the qualification prescribed by the University Grants Commission. The University Grants

Commission is the sole authority in fixing the qualification for the post of Lecturer in the college which comes under the purview of any of the

Universities in the entire country. As the University Grants Commission has disapproved the qualification of the petitioner, the petitioner cannot

harp on the order of approval of the qualification passed by the fifth respondent. At any rate, the petitioner cannot press for the approval of the

appointment by the first respondent as he had not acquired the required qualification, he submits.

The proceedings of the Madurai Kamaraj University issued on 9.11.1988 to Dr. N. Krishnamoorthy, Principal, Sri Ramakrishna Mission

Vidyalaya Maruthi College of Physical Education before ever the formation of Manonmaniam Sundaranar University, Tirunelveli, would disclose

that the said Dr. N. Krishnamoorthy was appointed as one man inspection commission to inspect and report on the arrangement made by the

management of the sixth respondent college for further affiliation in B.Sc three years degree course in Physical Education, Health Education and

Sports. It has also been made clear in the said correspondence that the University Grants Commission has accepted in principle the proposal of the

college for the introduction of the said course.

Dr. N. Krishnamoorthy, having inspected the sixth respondent college, recommended that in the first year one of the Assistant Professors among

the three may be a Medical Doctor who could be of help for teaching Anatomy and Physiology. The first respondent, thereafter, issued G.O.Ms.

No. 661 Education Department dated 16.5.1990 granting permission to the sixth respondent college for appointment of four Lecturers for the first

year course of Physical Education, Health Education and Sports from the year 1990-91 onwards. The sixth respondent also was reminded of the

fact that the University Grants Commission had already informed the first respondent that in case an institution was not able to start the course

latest by the academic year 1990-91, the approval would be withdrawn. It has also been made clear that the Government, having approved the

proposal of starting a course in Physical Education, Health Education and Sports in the sixth respondent college from the year 1990-91 onwards,

undertook to bear the recurring expenditure after five years period when the patronage of University Grants Commission''s assistance came to an

end.

Emboldened by such approval of the proposal to start the course in Physical Education, Health Education and Sports and the assurance given

by the first respondent that it would bear the recurring expenditure of the course after the expiry of five years when the University Grants

Commission''s assistance came to an end, the sixth respondent gave advertisements in the leading newspapers including ''The Hindu'' calling for the

applications to fill up the post of a Lecturer who has got MBBS Degree for the purpose of teaching Physiology and Anatomy.

Having found that the petitioner Dr. K. Karunakaran possessed the required qualification, the sixth respondent appointed him as Lecturer for

Physical Education, Health Education and Sports as per the order of appointment dated 4.1.1991.

By the time the said appointment was made by the sixth respondent, Manonmaniam Sundaranar University was formed at Tirunelveli. The sixth

respondent wrote a letter to the Manonmaniam Sundaranar University seeking approval of the appointment of the petitioner. Manonmaniam

Sundaranar University, by its communication dated 9.10.1991, approved the qualification of the petitioner for the post of Lecturer for Physical

Education with effect form 21.1.1991.

Very strange submission is made now by Manonmaniam Sundaranar University that such an approval was accorded prior to the prescription

of qualification made by the University Grants Commission. If at all the qualification possessed by the petitioner did not satisfy the prescription, if

any, of the qualification made by the University Grants Commission, Manonmaniam Sundaranar University should not have approved the

qualification of the petitioner and communicated the same to the sixth respondent. It appears that as a result of such approval, the petitioner, who

possessed MBBS Degree, thought it fit to continue in the sixth respondent college with the fond hope that his appointment would be approved by

the authority concerned. Had Manonmaniam Sundaranar University not approved the qualification of the petitioner, the petitioner, having such

qualification in Medicine, would not have continued in the sixth respondent college.

The University Grants Commission, the second respondent herein issued a proceeding dated 23.11.1991 disapproving the appointment of the

petitioner on the ground that the petitioner did not fulfil the qualification prescribed for the post of Lecturer. The very same second respondent

again communicated to the sixth respondent, by its proceedings dated 9.5.1992, responding to its request for approval of appointment of the

petitioner emanated from the sixth respondent, its inability to approve the appointment of the petitioner having the qualification of MBBS degree. It

made a remark that such a candidate should have atleast possessed a post graduate degree with 55% marks for the post. A communication was

sent by the University Grants Commission to a Member of Parliament, by its letter dated 19.1.1996, in reply to his letter dated 19.12.1995,

informing him that Doctor-cum-Lecturer Post was not a recognized post of the University Grants Commission, that the qualification for such post

had not been prescribed by the Commission and that therefore, the matter had to be dealt with by the Tamil Nadu Government. The petitioner also

was requested to contact the State Government in that regard.

As rightly pointed out by the learned Counsel appearing for the petitioner, the University Grants Commission has come out with three different

reasons for expressing its disapproval of the appointment of the petitioner. At the first instance, it had informed the sixth respondent that the

petitioner did not fulfil the qualification prescribed for the post of Doctor-cum-Lecturer. In the second communication, the second respondent

informed the sixth respondent that the petitioner should have atleast acquired Post Graduate Degree in Medicine with 55% marks. In the last and

third communication, the second respondent took a stand that no such qualification was prescribed for the post of Doctor-cum-Lecturer by the

University Grants Commission.

The sixth respondent started the course in Physical Education only as per the Government Order issued by the first respondent. The first

respondent, in fact, approved the proposal to start such a course in the sixth respondent college. An one man commission was appointed and the

one man commission, having inspected the premises of the sixth respondent, recommended for commencing a Physical Education Course in the

college of the sixth respondent. The one man commission had also strongly recommended for filling up one of the post of Lecturer in the said

course by a Medical Doctor. The first respondent had virtually forced the sixth respondent to commence the course at the earliest point of time

latest by the academic year 1990-91 informing the sixth respondent that the approval for such a course would be withdrawn by University Grants

Commission if such a course was not commenced by then. The Government also undertook to incur the recurring expenditure after the lapse of

five years as and when the University Grants Commission''s assistance came to an end. Only after getting such assurance from the Government, it

appears that the sixth respondent started the Physical Education Course and appointed the petitioner as Lecturer in its Physical Education Course.

Now, the University Grants Commission comes out with a plea that no prescription of qualification was made for the post of Doctor-cum-Lecturer

in the Physical Education course.

The petitioner has produced a copy of the advertisement flashed in ''The Hindu'' daily dated 23.2.2000 calling for the post of Lecturer-cum-

Medical Officer to man the Department of Physical Education at Alagappa University. But, of course, there is no material to show that such a

Lecturer, as called for in the said advertisement, was appointed by Alagappa University. The sixth respondent corresponded with Sri Sarada

College of Education for Women, which had informed the sixth respondent that with an approval of the Director of Collegiate Education, a

Medical Officer cum Assistant Professor was appointed in their college and necessary grant was also being given by the Government.

It is brought to the notice of this Court that University of Madras has also prescribed MBBS Degree qualification for the post of Medical

Officer-cum-Lecturer for the Physical Education Course that is conducted by it.

The above facts and circumstances would go to show that there are Medical Officer-cum-Lecturer serving in various Universities in the state of

Tamil Nadu. Therefore, it is not as if such a post is not at all sanctioned by Authorities concerned.

Here is a case where the unfortunate petitioner, who possesses MBBS Degree qualification, joined with all smartness in the year 1991 itself in

the sixth respondent college on the fond hope that his appointment would be approved by the authority concerned. The appointment made by the

sixth respondent cannot also be found fault with as the said appointment was made only after G.O.Ms. No. 661 Education Department dated

16.5.1990 was issued by the Government directing specifically the sixth respondent to commence the course in Physical Education in the academic

year 1990-91 itself. The sixth respondent also was tempted by the first respondent saying that the recurring expenditure on the said course will be

taken over by the first respondent when the University Grants Commission''s assistance came to an end. The University Grants Commission has

taken a nebulous stand as far as the qualification possessed by the petitioner to occupy the position of the Doctor-cum-Lecturer.

At any rate, it is found that the University Grants Commission had not prescribed the qualification for the post of Doctor-cum-Lecturer at the

time when a course was started by the sixth respondent. Inasmuch as the said course was started by the sixth respondent only with an assurance of

the first respondent that the recurring expenditure would be borne by the Government as and when the University Grants Commission''s assistance

came to an end, the first respondent has to step in to shoulder the responsibility of bearing the recurring expenditure for the course started by the

sixth respondent with the appointment of the petitioner as Doctor-cum-Lecturer atleast after the lapse of five years from the date when the

petitioner was appointed in the sixth respondent college in that position.

The learned Counsel appearing for the petitioner would bring to the notice of this Court that the services of the petitioner was availed by

Manonmaniam Sundaranar University for valuation of the examination papers in Physical Education Course. But, unfortunately, the fifth respondent

comes out with a plea that the petitioner is unfit to hold the position as he has not fulfilled the qualification prescribed by the University Grants

Commission.

There is no justification for the first respondent to wash off its hands having given all assurances to the sixth respondent to start a course and

appoint Lecturer to man the respective posts in the said course. The petitioner, being a well qualified Doctor, would have earned a sizable income

had he set up his private practice. Non-approval of the appointment of the petitioner in the above circumstances would definitely result in injustice.

At this stage, the learned Counsel appearing for the petitioner would submit that the petitioner is even prepared to forego the approval of his

post and sanction of grant by the University Grants Commission for the first five years commencing from 4.1.1991 to 3.1.1996. Under such

circumstances, necessary direction will have to be issued to the first respondent to approve the appointment of the petitioner as Doctor-cum-

Lecturer or Medical Officer-cum-Lecturer as the case may be from 4.1.1996 and release necessary grant to bear the recurring expenditure from

the said date.

Therefore, the impugned proceedings in letter No. 11227/E2/98-13 dated 7.1.2002 issued by the first respondent is quashed as it smacks of

illegality and consequently, the first respondent is directed to approve the petitioner''s appointment as Medical Officer-cum-Lecturer of the sixth

respondent college in a sanctioned post pursuant to G.O.Ms. No. 661 Education Department dated 16.5.1990 with all service and monetary

benefits with effect from 4.1.1996 without causing disturbance to the seniority of the petitioner in the sixth respondent college from 4.1.1991 within

a period of three months from the date of receipt of this order. The salary arrears with effect from 4.1.1996 shall be disbursed to the petitioner

within a period of three months from the date of receipt of this order. Accordingly, the writ petition is allowed. There is no order as to costs.