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Judgment
K.P. Sivasubramaniam, J.—The petitioner prays for a Certiorarified Mandamus to call for the records relating to the order dated 14.9.2001
issued by the first respondent, to quash the same and to direct the first respondent to appoint the petitioner as the Dean of Pandit Jawaharlal Nehru
College of Agriculture and Research Institute (PAJANCOA), Karaikal, with effect from 14.9.2001 with all the consequential benefits.
According to the petitioner, he had served as the Associate Professor at the Kerala Agricultural University (KAU) with effect from 16.10.1981
and he was promoted as Professor on 19.1.1990. He was posted on deputation to PAJANCOA as Professor. PAJANCOA is a Society
controlled by the Government of Pondicherry.
An advertisement was issued on 29.9.1999 for filling up seven posts of Professors and it was stipulated that candidates should hold B.Sc.
Degree in Agriculture, Master''s Degree in the relevant subject and Ph.D. in the concerned field of specialisation. The person holding the post of
Associate Professor or equivalent having a total experience of ten years in Post-Graduate teaching is eligible for appointment. As the petitioner
claims to be eligible in all respects, he obtained leave from his parent employer KAU and applied for the post and was selected at the interview
held on 8.12.1999.
An advertisement was issued in the Employees News, inviting applications to fill up the post of Dean, PAJANCOA, by deputation. In terms of
the recruitment rules, the post of Dean was to be filled up by transfer on deputation from among the professors of Agricultural Universities,
Agricultural Colleges, etc. The applicant should have been in regular service as Professor possessing the basic degree in Agriculture of not less than
4 years duration, Master''s degree in Agriculture or Horticulture, Ph.D. in the concerned field of specialisation and a total experience of 15 years
with a minimum of six years'' experience as Professor and the upper age limit being 55 years. The petitioner submitted his application, which was
however returned, to send the application through his parent department KAU, and the application was then forwarded to KAU and he was
required to send the service certificates showing that he had put in eleven years of service in the Grade of Professor. The said certificate was
submitted directly to the first respondent at the interview held on 25.8.2001.
According to the petitioner, he performed well in the interview and was expecting appointment as Dean. However, by a circular dated
17.9.2001, it was announced that the third respondent was appointed and had assumed charge of the post of Dean.
The said appointment of the third respondent has been questioned by the writ petitioner on the following grounds:
(i) The third respondent is an in-service employee of PAJANCOA and hence, not entitled to be appointed in terms of the advertisement.
(ii) The third respondent does not have regular service of six years as Professor as on the date of the advertisement.
(iii) The third respondent had crossed the age of 55 on the last date of the application.
Hence, the writ petition.
In the counter affidavit filed by the first and second respondents, it is stated that the college took action for filling up the various posts in the
college including the post of Professors and Associate Professors during the year 1999 through direct recruitment. The petitioner was one of the
candidates who was selected as Professor in the discipline of Agricultural Entomology in the interview held on 8.12.1999.
In the meantime, the then incumbent working as Dean on deputation was due to complete his term of appointment as on 11.3.2000. Therefore,
the Government issued advertisement in newspapers calling for applications for the post of Dean. It was decided to appoint the Dean on
deputation. The term of appointment of the incumbent came to an end on 11.3.2003. The Governing Body resolved to relieve him with effect from
the said date and to direct the third respondent, who was the only professor available in the college at that point of time, to look after the duties of
the Dean.
After finalisation of the recruitment rules, the Governing Body, on 20.2.2001, finally approved the recruitment rules, and in terms of the said
rules, the post was to be filled up by deputation or by direct recruitment and the Governing Body was to decide whether the post was to be filled
up by deputation or by direct recruitment. It is further stated that the qualification for direct recruitment was a basic Decree in Agriculture of not
less than four years'' duration, Master''s Degree in Agriculture or Horticulture, Ph.D. in the concerned field of specialisation and a total teaching
experience of 15 years with a minimum of six years'' experience as Professor. For appointment on transfer on deputation, the requirement was six
years'' regular service in the scale of pay of Rs.16000-22400 and possessing educational and other qualification as required for direct recruits. The
applications were invited through advertisement and no age limit was mentioned in the advertisement. The Selection Committee was constituted
which interviewed six candidates who were considered as eligible as per the particulars furnished by them in their applications. The Committee
selected the third respondent for the post of Dean and also recommended to keep the name of Dr.T.N.Balasubramaniam in the wait list.
The respondents further state that the third respondent was already working as Professor of Horticulture in PAJANCOA and since in-service
candidates could not be appointed on deputation, his appointment had to be treated as promotion instead of deputation. After the Selection
Committee finalised the name of Dr.Selvaraj, the third respondent, the matter was referred to the Government and the approval of the Lieutenant
Governor of Pondicherry was obtained for appointing the third respondent and treating the appointment as promotion to the post of Dean instead
of deputation, with specific approval for relaxing the recruitment rules. It was decided that his appointment would be treated as promotion.
As far as the petitioner is concerned, based on the certificate issued by KAU, the Selection Committee considered him as eligible for the post
of Dean. The Committee, after interviewing all the six candidates and considering their performance in the interview, academic record and
experience, selected the third respondent. However, subsequently, it was found that the certificate issued in favour of the petitioner by the KAU
giving retrospective promotion to the petitioner as Professor with effect from 19.1.1990 was a conditional order subject to ratification and
approval by the Kerala Government. The respondents further proceed to state that such approval by the Kerala Government was not obtained
and therefore, he was not eligible to be considered for the post of Dean. To the various contentions raised by the petitioner regarding the alleged
ineligibility of the third respondent to be appointed as a Dean, the respondents have contended that as the petitioner himself was not qualified, he
can have no legitimate grievance against the selection of the third respondent.
The third respondent has been rightly appointed after giving necessary relaxation. No age limit was prescribed in the advertisement and hence,
the contention that the third respondent had completed the age of 55 years cannot be sustained. The age limit was applicable only to direct recruits
and as the said post was being filled up through deputation, there was no age limit. The further contention that the third respondent did not satisfy
the minimum period of six years as Professor was also denied and it is stated that the third respondent had to his credit a length of service of 6
years, 2 months and 14 days.
The petitioner has filed a detailed reply affidavit denying the various contentions raised in the counter affidavit, including the allegation that the
petitioner himself was not properly qualified and that he had been given a retrospective promotion as Professor and as such, he cannot claim having
satisfied the minimum period of six years of service as Professor. The claim of the respondents that the third respondent had meritorious
qualifications were also denied.
Learned counsel for the petitioner referred to the advertisement for the post of Dean as well as recruitment rules for the post of Dean and
contended that the post was intended to be filled up only on deputation. In terms of the recruitment rules, the appointment can be only by selection
and the maximum age was also specified as 55 years. Though the method of recruitment as to whether it should be by deputation or by direct
recruitment, it would be decided by the Governing Body each time when the post is required to be filled up. Though the Governing Body is given
the discretion, the discretion is only to decide as to whether the post should be filled up by deputation or by direct recruitment. However, in the
present case, the third respondent is admittedly an in-service candidate and the respondents themselves have pleaded that he has been appointed
on promotion and such appointment had been subsequently ratified by the competent authority. Neither the Board nor the competent authority will
have jurisdiction or power to go beyond the recruitment rules or the advertisement which had been issued.
In the context of the contention that the third respondent did not have the requisite minimum service of six years, learned counsel refers to the
very details given in the counter affidavit in terms of which, the maximum period of service is shown to be 6 years 2 months and 14 days. The said
period includes the period of 4 months and 24 days which was spent only on probation when the third respondent was working as a Professor.
This period cannot be included. As regards the experience, in the petitioner Institution, though the total period is shown as 1 year 8 months and 10
days, the said period is calculated from 15.12.1999 to 25.8.2001, being the date of appointment. The last date for receipt of applications was
30.5.2001 and therefore, the experience of the third respondent as Professor can be calculated only upto 30.5.2001 and not upto 25.8.2001.
As regards the objection that the third respondent had crossed the age of 55 years, admittedly, the third respondent had crossed the age of 55
years as on the date of appointment. Therefore, the selection of the third respondent was vitiated on all the three grounds.
Mr.R.Muthukumaraswamy, learned senior counsel appearing for the third respondent, contends that the petitioner has no locus standi for filing
the above writ petition for several reasons. That apart, the petitioner himself was an in-service candidate and during the period of selection, he was
serving as a professor in the respondent Institution. Therefore, he cannot be heard to raise the objection that the third respondent, as an in-service
candidate, should not have been considered for appointment. Though in terms of the rules, there is no provision for considering the case of in-
service candidate, the appointment of the third respondent was duly ratified by the competent authority and the approval of the Lieutenant
Governor had also been obtained and therefore, there was no irregularity in the appointment of the third respondent. As regards the completion of
55 years of age, reference is made to the advertisement and the learned senior counsel contends that in terms of the advertisement, no age limit
was prescribed. With reference to the alleged lack of period of six years as professor, the respondents are perfectly justified in taking into account
the services rendered by the petitioner upto the date of appointment. As regards the period between 7.4.1995 and 31.8.1995, no materials have
been produced to show that the third respondent was serving only as a probationer. Further, according to the learned senior counsel, after
confirmation of service, for all purposes, the service period will be inclusive of from the date of original appointment and hence, there was nothing
illegal about having included the period of probation also.
Learned senior counsel further strenuously contends that the various claims made by the petitioner about his own service of having completed
more than six years of service as professor was not factually correct. On a later verification, it was found that the confirmation of the petitioner as
Professor has been retrospectively granted. The said order was, however, a conditional order subject to ratification and approval by the Kerala
Government, and according to the respondent, such ratification was not granted by the Kerala Government. Therefore, the petitioner himself was
not qualified to be appointed as Dean and hence, he has no locus standi to question the appointment of the third respondent.
Learned Government Pleader (Pondicherry) appearing for the first and second respondents, while adopting the arguments of
Mr.R.Muthukumaraswamy, also contends that the appointment of the third respondent by promotion was duly ratified and confirmed by the
appropriate authorities including the Government. Such power of relaxation is also implied in the service conditions and the power of the employer.
In this context, reference ismade to the judgment of the Supreme Court in Union of India (UOI) Vs. Joginder Sharma, . Reference is made to the
observations contained in the said judgment holding that where the question of relaxation was in the discretion of an authority in the Government, it
was purely administrative and if the authority exercises the policy in its discretion, there is hardly any scope for the Tribunal or Court to compel the
authorities either to exercise or not to exercise the power of granting relaxation.
I have considered the submissions of both sides.
Though elaborate arguments were advanced on the issue as to whether the petitioner himself was qualified with the requisite years of service as
Professor or not, I am not inclined to entertain the said objection, considering that it was not on that ground the claim of the petitioner was rejected
by the respondents. The respondents have accepted the credentials of the petitioner and had treated him as qualified. This is not a case where the
petitioner is held to be disqualified and the petitioner is questioning such decision by the respondents. Therefore, such objection cannot be
entertained.
As regards the objection that the petitioner himself was an in-service candidate, here again, the respondents have not dealt with the case of the
petitioner in the said manner. The petitioner has, in fact, forwarded the application through Kerala Agricultural University and was thus been
treated only as an outside candidate even by the respondents themselves. The fact that the petitioner was working with the respondent institution
on deputation cannot result in holding that the petitioner was an in-service candidate.
Now, coming to the objections raised by the petitioner regarding the appointment of the third respondent, I find that the petitioner is entitled to
succeed on all the three grounds of objections.
�A perusal of the advertisement discloses that the post was to be filled up only on deputation. The rules relating to recruitment also discloses
that the post has to be filled up only either by direct recruitment or by deputation. It is true that discretion is left with the General Body to decide as
to whether the selection should be by direct recruitment or by deputation. In the present case, the appropriate authority/the Governing Body has
decided to fill up the post by deputation and hence, any other method of selection in the appointment cannot be sustained. In the case of the third
respondent, even on the facts pleaded by the respondents themselves, the third respondent has been appointed only on promotion. A perusal of
the rules disclose that there is no power of relaxation in the authorities and hence, the approval alleged to have been obtained from the Government
can have no relevance at all. The power of relaxation has to be available in the rule itself and there can be no question of any inherent power of
relaxation with reference to the mode of recruitment. If that be so, no purpose would be served in the requirement under the rules that the
appointment should be only by selection either by deputation or by direct recruitment. Even the General Body which is entitled to decide on the
mode of selection can prescribe the mode of selection only either as by direct recruitment or as by deputation. Even the General Body does not
have the power to appoint the Dean on promotion. It is a settled proposition of law that when the statute or the rules prescribe the manner in which
a thing shall be done, the authority can discharge their functions only in terms of the rules and in accordance with the procedure laid down in the
rules and it is not open to them to go beyond the procedure and contend that there was inherent power of relaxation.
On the second ground also regarding the required minimum period of six years, it is seen that the period has been calculated upto the date of
selection and appointment, namely, 25.8.2001. The last date for receipt of applications was 30.5.2001 and hence, the total years of service of the
third respondent as Professor can be calculated only upto �30.5.2001. As regards the qualification and experience, it is the date of application
which is relevant and not the date of appointment, which will be very much subsequent to the date of the application. In Hoshiar Singh Vs. State of
Haryana and Others, , the Selection Board was required to send its recommendations only for certain number of posts. But the Board made
recommendations of large number of persons than the number of posts for which requisition was sent. It was held that the appointment on
additional posts on the basis of such selection would be legally unsustainable and that such appointments would deprive candidates who were not
eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for
appointment thereafter. The opportunity of being considered for appointment on the additional posts would have been deprived to other persons.
In the same judgment, it was also held that when the advertisement was silent about relaxation of the standards prescribed by the Board, the Board
cannot relax the standards. The above-mentioned judgment will also be applicable for negativing the contention of the respondent that the authority
had power of relaxation under the context of the mode of recruitment, namely, after having appointed the third respondent on promotion, instead of
on deputation, as required under the rules.
In State of Haryana and Others Vs. Anurag Srivastava and Another, , while dealing with the eligibility conditions, the Supreme Court held that
the crucial date would be the last date for the submission of the applications. In that case, the advertisement was issued for the post of Assistant
Archivist, prescribing educational qualification as ""Master''s Degree or equivalent Honours degree in Modern Indian History with an optional paper
of post-1600 period, of a recognised university"". The respondent did not possess Master''s Degree as on the last date for submission of her
application though she had acquired the prescribed qualification after the interview and selection. The Supreme Court held that the crucial date for
deciding the eligibility condition was the last date for submission of the application. Therefore, I am inclined to hold that as regards the minimum
period of six years'' experience as Professor, as on the last date of submission of application, namely, �30.5.2001, admittedly, the third
respondent did not complete the six years'' period of service. The calculation adopted by the respondent-Institution by considering the service upto
25.8.2001, being the date of selection, is therefore erroneous.
On the issue of completion of 55 years of age, the contention of the respondents that no age limit had been prescribed in the advertisement
cannot at all be sustained. It may be noticed that the date of birth of the candidate is mentioned as one of the facts to be furnished in the proforma
of the application, as seen in the advertisement, which could be relevant only for calculating the age. That apart, the respondents cannot be heard
to plead that the recruitment rules relating to the appointment for the post of Dean would be irrelevant. Column 6 to the annexure of the rules
specifies that the maximum age shall be 55 years. Therefore, admittedly, the third respondent, having exceeded the age of 55 years as on the date
of applying for the post, he ought not to have been considered by the respondents. For all the aforesaid reasons, I am inclined to hold that the
appointment of the third respondent as Dean is illegal and liable to be set aside.
However, both the learned counsel appearing for the respondents contend that the period of appointment of the third respondent itself comes
to an end by the second week of September, �2004, the period of appointment being only for three years. Mr.R.Muthukumaraswamy, learned
senior counsel, contends that the practice and convention of this Court is not to issue �a futile or ineffective writ. The third respondent having
already completed the period, no purpose would be served by declaring his appointment as illegal.
It is true that no futile or ineffective orders can be issued especially in a discretionary remedy under Article 226 of the constitution. The fact
remains that the third respondent is holding the post as on date and therefore, it cannot be stated that issuing a writ as prayed for would amount to
a futile order. Nonetheless, in moulding the relief, there need not be any interference with the continuance of the third respondent in service till he
completes the period, notwithstanding the finding of this Court that the selection is illegal. It is only to be hoped that the respondent-Institution will
strictly adhere to the rules and regulations in selecting the future incumbents for the post of Dean instead of resorting to a series of violations as in
the present case.
With the result, the writ petition is allowed as prayed for. However, it is made clear that the third respondent shall be permitted to complete his
period of appointment. The relief is thus restricted to quashing and setting aside the order appointing the third respondent, subject to the
observations as above. No direction can be issued for appointing the petitioner. Any fresh appointment can be only by a proper process of
selection and respondents-1 and 2 are directed to take steps to fill up the post only in accordance with the rules and regulations. No costs.