Dr. S. Ganesan vs The Registrar, Alagappa University

V.S. Sirpurkar, J.—This judgment shall govern both the writ petitions, W.P. Nos. 8977 and 8978 of 1998. The first writ petition is filed by

one Dr. S. Ganesan, Reader and Head-Incharge, Alagappa Institute of Management, Alagappa University, challenging the Advertisement No.

Appt/1/98 made in the Daily ""The Hindu"" dated 3-6-1998 in so far as it pertains to the post of Director in Alagappa Institute of Management at

Serial No. 2 in the advertisement. The second writ petition is filed by Dr. T. Chockalingam, Reader, Alagappa Institute of Management, Alagappa

University, challenging the same advertisement, in so far as the entry at Serial No. 1 which pertains to the post of Professor in Tamil. Needless to

mention, by this advertisement, the Respondent invited applications for the posts of Professor in Tamil and Director in Algappa Institute of

Management. Dr. Ganesan seeks the interference in so far as the second entry is concerned, while Dr. Chockalingam seeks the interference in

respect of the first entry of Professor in Tamil. The University wanted to fillup these posts with other two posts viz., Controller of Examinations and

Director of Distance Education. The main challenge of the Petitioners in both the petitions is that the advertisement is unconstitutional and arbitrary

as, though it applies to the single cadre posts, there is a reservation made in respect of both the posts. It is found that in so far as the post of

Professor in Tamil is concerned, it is reserved for Scheduled Caste, while in so far as the second post of Director in Alagappa Institute of

Management is concerned, it is reserved for the category of Most Backward Classes. The Petitioners submit that this advertisement is clearly

against the Constitutional mandate as also against the law laid down by the Apex Court in this behalf.

The Respondent has filed separate counters and has tried to justify the reservations on the ground that the University was bound by the Senate

resolutions. The Respondent pointed out a Senate Resolution dated 28-6-1997 by which the University had decided to accept the Report of the

Service Committee constituted by the University. The Report is dated 16-6-1997 and is on record. According to the Respondent, this Report

recommends that till a common policy is framed by the University in respect of reservation, the University should maintain the status quo of treating

the entire University as one unit and adopting the roster category-wise subject to the decisions of the High Court and Supreme Court. The main

contention of the Respondent in so far as the post of Professor in Tamil is concerned, there are about eleven posts in the University of the

Professors of different disciplines and, therefore, the reservation for the post of Professor in Tamil was perfectly justifiable. So also as regards the

post of Director in Alagappa Institute of Management is concerned, the contention is that there were two posts of Professor in that Institute, one of

which was renamed as Director and, therefore, the post of Director could not be said to be a single cadre post like the post of the Professor. It is

on that basis that the advertisement is justified and it is tried to be suggested that the University was well within its rights to reserve these posts for

the members of the Scheduled Castes and members of the Most Backward Classes.

We shall take up the case of the post of Professor in Tamil. In this behalf, the contention raised is that there are about eleven posts of different

disciplines in the University. Besides, there are three posts of Directors which are also equivalent posts of Professors. It is for this reason that the

learned Counsel suggests strenuously that the reservation for the post of Professor in Tamil was possible as under no circumstances could that post

be held to be a single cadre post.

When specifically asked, it was made clear that in so far as the subject of Tamil is concerned, there is only one post of Professor in the whole

University and it is not as if there is more than one such post in the discipline of Tamil. It goes without saying that the Professors in the other

subjects would require separate and distinct qualifications from the qualifications that are required for holding the post of Professor in Tamil. It is,

therefore, clear that in so far as the discipline of Tamil is concerned, there is only a single post. Once that position is obtained, then, no reservation

would be possible, in the case of the post of Professor in Tamil. It was tried to be suggested that there are now eleven posts and, therefore, the

University was filling up the posts as per the roster. Unfortunately, the University has not been able to show as to when the roster was prepared

and how it is working. This is apart from the fact that the contention of the University into the eleven posts of the Professors in different discipline to

be in a common cadre is not legally possible, because of the Apex Court judgment in Chakradhar Paswan Vs. State of Bihar and Ors, . Following

the judgment, though the Supreme Court in the case of Union of India and Another Vs. Madhav Gajanan Chaubal and Another, had struck a

different note, the position is now settled because of the Constitution Bench judgment in Post Graduate Institute of Medical Education and

Research, Chandigarh Vs. Faculty Association and Others, . In this behalf, the following observations of the Apex Court are worthy to be noted:

In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such single post in

the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public.

Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the

Constitutional framework. The decisions of this Court to this effect over the decades have been consistent.

In paragraph 38, the Apex Court has clearly approved the aforementioned decision in Chakradhar''s case (cited supra) that there cannot be any

reservation in a single post cadre and the subsequent three decisions viz.,

(i) Union of India and Another Vs. Madhav Gajanan Chaubal and Another, ;

(ii) Union of India v. Brij Lal Thakur 1997 4 JT (SC) 195 : AIR1997 SCW 1937; and

(iii) State of Bihar and Others Vs. Bageshwari Prasad and Another,

were not approved. In view of this, even if there is any resolution in favour of the whole University being treated as a single unit, the exercise is not

permissible. The advertisement in so far as it pertains to the post of Tamil Professor which provides for a cent percentage reservation is bad and is

quashed.

Now, let us consider the question of advertisement as it pertains to the post of Director in Alagappa Institute of Management. Mr. S. Vadivel,

learned Counsel appearing for the Respondent, has very strenuously pointed out that there were two posts of Professors in this Institute and the

said two posts were the posts of Professor. He also invited my attention to a document which is at page 15 of the common typed set. It is a copy

of a declaration that the qualifications prescribed to the post of Director are that of Professor as per the A.I.C.T.E. norms which were then quoted

in the said document. The last paragraph of the document is as follows:

Out of two posts of Professors sanctioned for the Department of Management Studies, one post of Professor has been renamed as Director.

There appears a signature of a Registrar below this. It is not known as to the nature of the document whether this is a resolution passed by the

Syndicate or the Senate, or whether this is a mere Certificate issued by the Registrar. The document does not have even the date. In the absence

of any such particulars, it is very difficult to accept such a document and act upon the same. Even if the document is to be considered, all that is

said is, that one of the posts of Professor is renamed as a Director.

On this backdrop, my attention is invited by Mr. Krishnappan to the Reply affidavit wherein a specific claim is made by Dr. Ganesan (Petitioner

in W.P. No. 8977 of 1998), that the post of Director has nothing in common with the post of the Professor, excepting that the pay scale of the two

posts is identical. It is pointed out in the Reply affidavit of Dr. S. Ganesan that the Director of the Institute is the Head of the Institute having control

over all the staff working in the University including the Professors. It is then pointed out that the Professors may be more than one, but there is

only one post of Professor, who has the responsibility of supervising the Institute, apart from teaching and research. This is in contravention of the

duties of the Professors, who are only to do the academic duties of teaching and research. It is then pointed out and in my opinion rightly too, that

the person holding the post of Director becomes Ex-Officio Chairman of the Board of Studies, and Chairman of the Board of Examiners. He also

becomes a member of the Senate of the University as also a member of the Standing Committee on Academic Affairs of the University. If that is

so, then there cannot be any quarrel with the proposition that that post of a Director is distinct from the post of a Professor. In that view, it would

be clear that the post is covered by the single post cadre and, therefore, the cent percentage reservation would not be possible in respect of the

said single post. A mere parity in the Pay Scale would not make the post of the Director identical to that of the post of Professor. On this logic, it

has to be said that the post of Director is a single cadre post and, therefore, the reservation may not be possible.

Mr. Vadivel, learned Counsel challenged the locus standi on the part of Dr. Ganesan, (Petitioner in W.P. No. 8977 of 1998) to file the petition

on the ground that he himself did not hold the necessary qualifications as advertised. He also relied upon a judgment of this Court in K.D.

Jayaraman v. The Chairman, Tamil Nadu Housing Board, Madras 35 1980 T.L.N.J. 459. This judgment is of no use, as in the said judgment, it is

an admitted position that the Petitioner did not have the necessary qualifications. That position is not the same here. Here, the Petitioner insists that

he is having the necessary qualifications. Prima facie also, it does appear that the Petitioner has those qualifications. However, it would be for the

University to consider that question when the applications are considered. The Petitioner cannot be stopped, however, on that ground alone from

filing a petition and challenging the advertisement. I hold the petition to be in order.

In view of the above discussion, it will be clear that the advertisement is bad and illegal as it provides 100% reservation to both the posts which

are single cadre posts. The advertisement is accordingly quashed. The University will be free to re-advertise the posts in the light of the

observations made in this judgment. With these observations, both the writ petitions are allowed without any orders as to costs. Rule granted is

made absolute.