Madurai Kamaraj University vs A. Sundara Mahalingam

G. Rajasuria, J.—A resume of the previous proceedings, as stood exposited from the records, could be portrayed thus:

(a) Sundara Mahalingam, an official of Madurai Kamaraj University, the respondent in the appeals, was working on the administrative side of the Madurai Kamaraj University for a pretty long time and ultimately he rose to the level of Superintendent-I. He acquired Ph.D. qualification during the year 1992. It appears, he wanted to be a faculty in Madurai Kamaraj University i.e., the appellant University, by switching over from administrative side to academic side. Since he experienced some difficulty in getting himself inducted as a faculty member, he filed the writ petition in W.P.No. 2197/2001 with the following prayer:

... to issue a writ of certiorarified mandamus by calling for the records of the respondents relating to the selection in pursuance of the notification No. R-34VC/2000 and R/37/VC/2001 issued by the second respondent 21.12.2000 and 11.1.2001 published in Indian Express dated 26.12.2000 and 16.1.2001 respectively in so far as the School of Energy is concerned and quash the same and consequently direct the respondents to absorb the petitioner in the post of Lecturer in Bio-Energy, Department of School of Energy, where he is already working, as provided by the Syndicate resolution dated 4.3.96 and the memorandum of agreements dated 7.4.89 and November 1999.

(b)In the course of hearing in the above writ petition, it appears that the learned Counsel who appeared for the University made submission, which was recorded by the Court, and it runs thus:

... Learned Counsel appearing for the University would submit that if the writ petitioner gives a representation seeking the relief of absorption and if he satisfies the UGC norms (UGC prescribed norms for such posts), then, the University will have no difficulty at all in absorbing the writ petitioner. ...

Ultimately, on 12.09.2005, the Court in the said writ petition ordered thus:

Validity of the advertisement is not gone into, since it is withdrawn. The writ petitioner is permitted to give a representation to the University seeking absorption in the post mentioned above. If the writ petitioner satisfies the norms prescribed by the UGC for the said post, the respondents, who have told this Court by their learned Counsel, would consider the said representation and pass orders on it, in any event, not later than 30 days from the date of receipt of such representation. If the writ petitioner is aggrieved on the order directed to be passed by the University, it is open to him to approach the competent forum for appropriate relief.

(c) It appears, the University sent the communication, dated 31.10.2005, calling upon the respondent to attend an interview before the Selection Committee for the post of Lecturer in the Department of Bio-Energy, School of Energy, Environment & Natural Resources at 11.30 a.m. on 11th November, 2005 at the Syndicate Room, Madurai kamaraj University. However, the respondent absented himself from attending the said interview, even though he was the only candidate called upon to attend the interview for the above said post. Thereupon, the University by its communication, dated 16.11.2005, rejected the representation of the petitioner, dated 05.10.2005, to absorb him in the academic side as a Lecturer. Obviously, the respondent filed writ Petition (MD)No. 11053/2005 with the following prayer.

... to issue a writ of certiorarified mandamus or such other writ, direction or order in the nature of writ by calling for the records of the respondents relating to the impugned order passed by the 2nd respondent in Memo No. MKU/LC/Estt.Case/2005, dt.16-11-2005 and quash the same and consequently direct the respondents to pass suitable order for absorbing the petitioner as Lecturer, ont he representation given by the petitioner dt.05-10-2005, as directed by this Hon''ble Court in W.P.No. 2197/2001 dated 123.09.2005....

(d) Subsequently, the respondent Sundara Mahalingam also filed one other writ petition in W.P.(MD)No. 3668 of 2006 with the following prayer.:

... to issue a writ of certiorari or such other writ, direction or order in the nature of writ by calling for the records of the respondents relating to the impugned notification dated 21.07.2006 issued by the second respondent as published in the Newspaper New Indian Express dated 01.02.2006 and quash the same in so far as the posts covered in S.No. 1, 2, 3 and 4 ....

(e) Thereupon, both the writ petitions, namely W.P.(MD)Nos. 11053/2005 and 3668/2006 were taken up for hearing by the learned Single Judge and passed the common order on 25.07.2006. The operative portion of it runs thus:

In view of the above facts and circumstances of the case, both the writ petitions are ordered in the following terms:

The respondent University shall constitute the Selection Committee in accordance with the norms prescribed by U.G.C. within a period of 15 days from the date of receipt of a copy of this order;

The writ petitioner is directed to appear before the Selection Committee, to be constituted by the respondent University, for the post of lecturer in Bio-Energy Department;

The Selection Committee shall consider the qualification and other eligibility criteria of the petitioner for the post of lecturer in the department of Bio Energy by taking into consideration the order passed by this Court in W.P.No. 2197 of 2001 dated 12.09.2005 and also the other qualifications and expertise acquired by the petitioner in the teaching side from the year 1997 to ill date in the department of Bio Energy and recommend for appointment on such compliance;

The impugned notification dated 27.01.2006 issued by the respondent University in so far as it relates to Sl. No. 2, Advertisement No. R/84/Dean (E&D), Bio-Energy Department for the post of lecturer alone is set aside.

(f) Being aggrieved by the said common order, the University filed Writ Appeal Nos. 369 and 370 of 2006. However, even before the filing of the writ appeals by the University as aforesaid, the respondent. Sundara Mahalingam filed another writ petition in W.P.No. 7880/2006 with the following prayer.

...to issue a writ of certiorarified mandamus or such other writ, direction or order in the nature of writ by calling for the records relating to the impugned proceedings of the Madurai Kamaraj University as issued by the 2nd respondent in ref. No. Memo. No. MKU/VC/ Lect. Appt./2006 dated 28.08.2006 and quash the same and issue suitable directions to absorb in the post of lecturer with back wages and all service benefits ....

The learned Single Judge on 22.09.2006 passed orders allowing the writ petition by observing and directing as follows:

Therefore the non-selection of the petitioner on the ground that he has not answered the questions during the interview cannot be a valid reason in the facts and circumstances of this case, particularly when the petitioner is aged 57 years and has been working as Lecturer in the Department of Bio-Energy from 22.7.1997, without any complaint or deficiency in conducting classes. Even in the counter affidavit nothing is stated about the performance of the petitioner in the Department of Bio-Energy hence the impugned order is declared as illegal.

In the result, the writ petition is allowed as prayed for the impugned order is quashed and the respondents are directed to absorb the petitioner as Lecturer as he is fully qualified to hold the post of Lecturer as per the UGC norms. Orders to the above effect shall be passed by the second respondent within a period of eight weeks from the date of receipt of copy of this order...."

(g) Aggrieved over the "said order, the University also filed W.A.(MD)No. 386 of 2006. As such, before this Bench, three writ appeals, namely, W.A.(MD)Nos. 369, 370 and 386 of 2006 are pending.

Heard both sides in entirety.

The nitty-gritty, the gist and kernel, the warp and woof of the case of the respondent Sundara Mahalingam is to the effect that he should be absorbed as such without he being tested relating to his suitability, namely

(a) Aptitude for teaching and research.

(b) Ability to communicate clearly and effectively.

(c) Ability to analyse and discuss.

Per contra, the University would contend that adherence to U.G.C. norms includes testing the respondent Sundara Mahalingam''s aforesaid three qualities also.

Hence, in these circumstances, the following point arises for consideration.

Whether the respondent could be absorbed as such without being tested relating to his aptitude for teaching and research, ability to communicate clearly and effectively and ability to analyse and discuss, for the post of lecturer?

The main thrust of the argument of the learned Advocate appearing for the respondent is to the effect that the University is estopped from conducting interview so as to test the respondent''s aptitude for teaching and research, ability to communicate clearly and effectively and ability to analyse and discuss, in view of the learned Advocate for the University having submitted before this Court in W.P.No. 2197/2001 to the effect that the respondent herein would be absorbed if he would be found satisfying the UGC norms and that the University would have no difficulty at all in absorbing him; for which, the learned senior counsel appearing for the University would submit that the operative portion of the order of this Court, dated 12.09.2005, passed in W.P.No. 2197/2001 would in no way states so and that the respondent should satisfy all the UGC norms, including the interview meant for testing the aptitude for teaching and research skill, ability to communicate clearly and effectively and ability to analyse and discuss.

The perusal of the order of the learned Single Judge, dated 12.09.2005, in W.P.No. 2197 of 2001, would show that the said order did not give any carte blanch to get himself absorbed in the post of lecturer merely by producing his educational credentials. The said order would contemplate that the respondent herein should satisfy the UGC norms and subject to that alone he could be taken as lecturer by the University. It is quite obvious that the University is governed by the mandates of the University Grants Commission and it cannot opt out of it. At this juncture, it is worthwhile to refer to the UGC norms, which are available in the typed set of papers and an excerpt from it is extracted herein for ready reference.

The process of selection should involve the following:-

a) Assessment of aptitude for teaching and research.

b) Ability to communicate clearly and effectively.

c) Ability to analyse and discuss.

d) Optional: Ability to communicate may be assessed by requiring the candidate to participate in a group discussion or by exposure to a class room situation/lecture, wherever it is possible.

The unassailable and indubitable fact is that the Selection Committee, as per UGC norms should comprise of high level academicians and the selection committee for the post of University Lecturer should be on the following pattern.

At the University level, all selections must be done within the system with the Vice Chancellor as the Head of the Selection Committee.

The Vice Chancellor to be the Chairperson of the Selection Committee.

Three experts in the concerned subject to e invited on the basis of the list recommended by the Vice Chancellor and approved by the Executive Council/Syndicate.

Dean of the concerned Faculty/ Head/Chairperson of the Department.

An academician nominated by the Visitor/Chancellor.

The quorum should be four, out of which at least two outside subject experts must be present.

The detailing and delineation of the facts in the previous proceedings before the learned Single Judges would express and expatiate that even though the respondent initially refused to participate in the interview, subsequently he participated in the interview but he objected for questions being put to him by the Selection Committee. His bone of contention is that the selection committee was competent only to verify his documents containing his qualifications and nothing more. The core question arises as to why for verifying certificates and degrees, such a high level selection committee should be constituted at all and it is quite obvious that such verification of the certificates, is only a clerical job. The term ''UGC norms'' connotes, the ''entire UGC norms'' prescribed for selection. The respondent herein cannot call upon the Court to truncate the procedure to his own benefits and apply only a part of the UGC norms and leave the rest. The perusal of the UGC norms would leave no doubt in the mind of the Court that such norms are meant for recruiting really worthy personnel as lecturers in the University and necessarily suitability should be tested by adhering to the process contemplated in the UGC norms by the Selection Committee for selecting any one for the post of lecturer.

The respondent herein would project himself as an experienced person in the academic field by contending that he was virtually transferred from the administrative side of the University to the academic side and work was extracted from him as Lecturer for a pretty long time and that it was too late in the day as well as an after thought on the part of the University, in veering round and taking pleas quite antithetical to such realities and contend as though the respondent should undergo suitability test as per UGC norms. To buttress and fortify, to support and strengthen his contention, he would rely on the Memorandum No. 177/Estt./1/Dt.30.05.1997 of the University, which forms part of the typed set and demonstrates that various administrative officials were posted on the academic side and also the Memorandum No. Estt./Admn./1/97, dated 22.07.1997, would read that the respondent herein, who was working at that time as Superintendent (D), Demand Draft Section, was transferred to the Department of Bio-Energy, School of Energy, Environment and Natural Resources. The scrutiny of the memorandum, dated 22.07.1997, would show that the respondent herein was directed to work under the directions of the Head of the Department concerned. It is pertinent and relevant to note that the said communication in no way appointed the occupy such posts. Be that as it may, at this stage, we do not want to ponder over that point as much water has flown under the bridge and at present the factual position here is that the University has decided to conduct interview only for the respondent herein. But the University simply and solely, primarily and paramountly insist that the respondent should satisfy the suitability test as contemplated under the UGC norms set out supra. The learned Advocate for the respondent would try to carry conviction with this Court by his persuasive argument relating to his plea that such interview would be an empty formality and in all probabilities the respondent would be rejected as unsuitable in view of the respondent having engaged himself in litigative battle with the University all along. The learned senior counsel for the University would correctly torpedo such argument by stating that the University is, day in and day out, facing all such sort of litigations and they in no way were perturbed or prejudiced by the litigations initiated by the respondent herein as against the University. We are of the opinion that simply because the respondent herein waged a litigative battle as against the University, which had temporarily made it to meet with its Waterloo, there is no presumption that the University authorities would bear grudge as against their own staff, the respondent herein, if he is otherwise suitable for the post of lectureship. We also specifically record herein that the University authorities shall deal with the respondent with open mind. More over, the selection committee comprises respondent herein as lecturer in the Department of Bio-Energy, School of Energy, Environment and Natural Resources. But, it only mandated that he should work under the directions of the Head of the department concerned.

During arguments it transpired that despite such transfer the respondent herein was not paid salary on par with lecturers, for which the learned Counsel appearing for the respondent would try to expound and explain, that for such non-extension of lecturers pay scale to the respondent, he cannot be found fault with. It is not the question of quantum of money that matters but the circumstances would matter much. Had really the respondent herein been appointed as lecturer or treated as lecturer, he would have been placed in the scale of pay of lecturer. The very fact that the respondent did not insist for the lecturer scale and that the University also did not place him in the lecturer scale, would speak volumes that he was simply transferred from the administrative side to the academic side with no assurance that he would be absorbed automatically by considering only his educational qualifications.

During arguments it also came to limelight that it has become a trait proposition of law that whenever any such post is lying vacant, it should not be filled-up by way of an internal selection, as that would offend the rights of the outsiders who are fully qualified and suitable to of various academicians from outside the University also. Hence in this view of the matter, the contention raised on the side of the respondent cannot be countenanced.

The learned Single Judge in the common order, dated 25.07.2006, would consider that the respondent herein is working on the teaching side in the Department of Bio-Energy and that he possesses all the required qualifications for appointment as a lecturer which job he has been doing ever since 1997 and accordingly treated his case as an "individual case and cannot be clubbed with any other regular appointment to be made for the post of lecturer in the University". We are not in agreement with the said finding for the reason that there is absolutely no basis for treating his case as an ''individual case''. The Court cannot mandate the University to treat any case as an ''individual case'' when the UGC norms, without mincing words by its directions, contemplate that any one who would be appointed as lecturer should satisfy the suitability. The learned Single Judge concentrated only on the qualification of the respondent but not the suitability which the Court cannot assess but only the Selection Committee by putting questions could and should assess the aptitude for teaching and research, ability to communicate clearly and effectively and ability to analyse and discuss, of the candidate.

Similarly, the learned Single Judge in the order dated 22.09.2006 in Writ Petition No. 7880/2006, following the common order dated 25.07.2006 passed in the previous proceedings by the earlier learned Single Judge, felt that such an order of the Court should be implemented because there was no appeal against the order, dated 25.07.2006. Now then, the University filed two appeals, namely W.A.(MD)NOs.369 and 370 of ''2006, challenging the common order dated 25.07.2006 and in such view of the matter, the subsequent order dated 22.09.2006, which reiterates the previous order, dated 25.07.2006, cannot held to be having any independent approach to the problem. In fact, the learned Single Judge, in the Order dated 22.09.2006 went to the extent of mandating as under.

. . . the respondents are directed to absorb the petitioner as Lecturer as he is fully qualified to hold the post of Lecturer as per the UGC norms. Orders to the above effect shall be passed by the second respondent within a period of eight weeks from the date of receipt of copy of this order....

The aforesaid extract of the order would tantamount to issuing appointment order itself by the Court, which, in catena of decisions, the Hon''ble Supreme Court does not confirm.

On the appellants'' side, the decision of the Hon''ble Apex Court reported in Uptron India Limited Vs. Shammi Bhan and Another, has been cited to highlight the point that wrong concession made by counsel on a question of law would have no binding effect on his client. Our discussion supra relating to the order of the learned Single Judge in W.P.No. 2197 of 2001, dated 12.09.2005, would show that in fact there was no concession given by the learned Counsel for the University and the court also did not act upon it, but the court order is clear to the effect that UGC norms should be adhered to. As has been correctly highlighted in the Hon''ble Apex Court''s judgment referred to above, even for any reason such representation before the learned Single Judge has to be treated as a concession given by the learned Advocate for the University, yet it would not bind the University.

The learned Advocate for the respondent herein would cite the decision of the Hon''ble Apex Court reported AIR 1979 SC 681 (M.P. Sugar Mills v. State of U.P.) so as to stress upon the point that doctrine of promissory estoppel would be operative even as against the University. To the risk of repetition, we would highlight that by making representation before the learned Single Judge in W.P.No. 2179/2001, the learned Advocate for the University did not usher in the doctrine of promissory estoppel in favour of the respondent. The litigation already started between the respondent herein and the University, long before such representation, alledgedly imbued with concession. In such a case, by no stretch of imagination or any presumption or assumption, the principle of estoppel could be pressed into service by the respondent herein. In the typed set of papers as well as from the arguments advanced by the learned Advocate for the respondent herein, we could see no law, rule or regulation in support of the respondent that on his possessing certain educational qualifications to become a lecturer, he should necessarily be absorbed as a lecturer.

Hence, in this view of the matter, all the three writ appeals are allowed and common order, dated 25.07.2006, passed in W.P.(MD)Nos. 11503/2005 and 3668/2006 and the order dated 22.09.2006 passed in W.P.(MD)No. 7880/2006 are set aside. Connected M.P.(MD)No. 2 of 2006 in W.A.(MD)No. 370/2006 and M.P.(MD)No. 1 of 2006 in W.A.(MD)No. 386 of 2006 are closed. However, during arguments, we sensed that the University is even now willing to constitute a Selection Committee so as to enable the respondent herein to appear before it so that he could prove his suitability by answering the questions that would be put to him by the experts of the Selection Committee. Hence, we are of the opinion that considering the over all circumstances involved in this case, the respondent could be given one more opportunity of appearing before the Selection Committee. With this in mind, we direct that the University shall make arrangements for the constitution of the Selection Committee, which shall, strictly in accordance with the UGC norms, test the suitability of the respondent by putting appropriate questions, for which the respondent herein is bound to answer. We also stress that the University shall deal with this matter with open mind untrammeled by the bitter experience, if any the University had in view of the litigation initiated by the respondent herein as against the University.

In the facts and circumstances of the case, the parties shall bear their respective costs.