R. Sridharan vs The Registrar, Annamalai University

S. Nagamuthu, J.—The petitioner was formerly working as an Assistant Professor in the Department of Botany in Annamalai University, Chidambaram, Cuddalore District. The respondent University has issued advertisement under Notification No. 1/2007(c) dated 28.02.2007, calling for the applications from eligible candidates for appointment to the post of Professors, Readers, Lecturers in various disciplines as detailed there under. So far as the post of Reader is concerned, as per the Government Order, a Teacher who possesses P.hd degree with 5 years of teaching experience alone is eligible for direct recruitment as Reader. The last date for submission of application as per the advertisement was 15.03.2007. But, the petitioner submitted his application for the post of Reader on 20.03.2007. As on the date of advertisement, the petitioner did not have the required 5 years of teaching experience. However, he made his application to the said post. The University Selection Committee, held the selection process and selected the petitioner as Reader by its proceedings dated 21 to 23.03.2007. Thereafter, an appointment order was issued to the petitioner by the Registrar of University by his proceeding in Appointment Order No. 605/2007(c) dated 29.03.2007 thereby appointing the petitioner as Reader in the Department of Botany at the scale of pay of Rs. 12,000/-. Accordingly, the petitioner joined service as Reader and he was so working.

While so, it appears that there was some audit objection in respect of the pay fixed on the petitioner. Based on the same, the Registrar of Annamalai University, by his proceeding in University Order No. 1315/2013(c) dated 13.12.2013, reverted the petitioner back to the position of Assistant Professor from the post of Reader. Challenging the said order of reversion, the petitioner is before this Court with this writ petition.

I have heard the learned counsel for the petitioner and the learned counsel appearing for the respondents and I have also perused the records carefully.

A perusal of the impugned order would go to show that the same came to be passed only on the ground that as on the date of recruitment, the petitioner did not possess 5 years of teaching experience. According to the impugned order, as on the said date, the petitioner had 4 years 11 months and 6 days of teaching experience.

The learned counsel for the petitioner would submit that it is true that as on the date of appointment, the petitioner was short of 24 days to 5 years of teaching experience which is required. But, for that reason, the reversion ought not to have been made after 6 years. In this regard, the learned counsel would rely on a judgment of the Hon''ble Supreme Court in Buddhi Nath Chaudhary and Others Etc. Vs. Abahi Kumar and Others, wherein, the Hon''ble Supreme Court has held that lack of experience, if any, at the time of recruitment is made good now and therefore, the new exercise ordered by the High Court will only lead to anomalous results. Making heavy reliance on the said judgment, the learned counsel would submit that in the case on hand, after 6 years, the impugned order has been passed though, the petitioner has gained sufficient experience in the post of Reader all these years.

In the counter filed by the respondents, the writ petition is very stoutly resisted. The crux of the counter is that, the University was earlier named by certain individuals. It was during their tenure, the petitioner was appointed though he was not fully qualified for being appointed as a Reader in the Botany Department as he was lacking 5 years of teaching experience which was one of the essential qualification for appointment as Reader. It was further stated that though, the last date for receipt of application was 15.03.2007, the application itself was submitted by the petitioner on 20.03.2007. It is further stated that, now, under a Government Order, the University has been taken over and the Special Officer has been appointed. Thereafter, so many irregularities committed by the earlier management of the University have been unearthed. Now only, this has come to light that the petitioner''s appointment was illegal. Therefore, according to the counter, the impugned order came to be passed and the delay of 6 years in passing the said order is immaterial.

The learned counsel for the respondent University would rely on a judgment of a Division Bench of this Court in A.P. John Paulraj v. The Vice Chancellor, University of Madras (W.A. No. 179 of 2004 dated 08.10.2009) wherein, the Division Bench has taken the view that if once the appointment is found to be illegal for want of essential qualification, for the said post, then such appointment is void in law and therefore, the same is liable to be set aside.

I have considered the above submissions.

From the records, it is crystal clear that at the time of appointment, the petitioner was lacking sufficient teaching experience which was one of the essential qualifications for making appointment. It is not known, as to how the application of the petitioner was entertained by the University when he did not have the required qualification even to make application. It is also not explained to the Court as to how the application was received beyond the last date fixed under the advertisement for submission of applications.

With these admitted facts, let us have a look into the legal aspects. The petitioner has been appointed as a Reader though he had 26 days short of 5 years of teaching experience, which is one of the essential qualifications for appointment as Reader. But, now, the question is as to whether on this ground, the impugned order is to be sustained thereby affirming the order of reversion.

As I have already pointed out, the learned counsel for the petitioner has relied on a recent judgment of the Hon''ble Supreme Court in Buddhi Nath Chaudhary v. Abahi Kumar (cited supra). That was a case where the appointment of Motor Vehicle Inspector in pursuance of the advertisement was under challenge. As per the advertisement, apart from the essential qualifications, the experience of varying terms was also prescribed as one of the qualifications. Though, the candidates therein had the educational qualification, they did not have sufficient experience which was also prescribed as one of the essential qualifications. Therefore, on the ground that the appointment of the candidates those who had no sufficient experience was challenged before the High Court. A learned Single Judge of the High Court who examined the said issue directed the Transport Commissioner to re-do the selection process and on appeal, the Division Bench of the High Court has set aside the same. The Division Bench also directed fresh consideration of the matter by the Transport Commissioner. That was taken to the Hon''ble Supreme Court. Having considered the contention that the appointment of the candidates who lack qualification was illegal, in paragraph Nos. 4, 5 & 6 of the judgment, the Hon''ble Supreme Court has held as follows:-

On the ground that the selected candidates did not possess the qualification or experience in appointment in an appropriate automobile institution registered under the Factories Act, 1948 or they did not possess driving licence, their appointments were challenged by some of the candidates who were not selected in several writ petitions. The learned Single Judge of the High Court who dealt with these writ petitions did not examine the contentions raised on behalf of the writ petitioners in the necessary detail with reference to each selected candidate but directed the Transport Commissioner to do that exercise. On appeal, the Division Bench of the High Court set aside the report sent by the Transport Commissioner pursuant to the order made by the learned Single Judge which was received during the pendency of the appeal and directed fresh consideration of the matter by the Transport Commissioner.

We fail to understand as to how the matter of selection and appointment to a post could have been entrusted to the Transport Commissioner when the Commission had been specifically entrusted with such a job and such Commission, which is an autonomous authority having a constitutional status, has selected the candidates whose appointments were in challenge. If the selection of these candidates was improper the same should have been set aside with appropriate directions to redo the process of selection or at best, the High Court could have directed the Government, which is the appointing authority, to take appropriate steps in the matter. However, in the facts and circumstances of this case, we need not dilate on this aspect nor do we need to examine various elaborate contentions addressed by either side. Suffice to say that all the selected candidates, who are in employment, except one, possess necessary qualification and in regard to that one excepted candidate, it cannot be disputed that he possesses equivalent qualification. Thus the dispute narrows down to one aspect, that is, the selected candidates may not possess necessary experience which is now required to be examined by the Transport Commissioner.

The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they would have acquired the requisite experience. Lack of experience, if any, at the time of recruitment is made good now. Therefore, the new exercise ordered by the High Court will only lead to anomalous results. Since we are disposing of these matters on equitable consideration, the learned counsel for the contesting respondents submitted that their cases for appointment should also be considered. It is not clear whether there is any vacancy for the post of Motor Vehicle Inspectors. If that is so, unless any one or more of the selected candidates are displaced, the cases of the contesting respondents cannot be considered. We think that such adjustment is not feasible for practical reasons. We have extended equitable considerations to such selected candidates who have worked in the post for a long period, but the contesting respondents do not come in that class. The effect of our conclusion is that appointments made long back pursuant to a selection need not be disturbed. Such a view can be derived from several decisions of this Court including the decisions in Ram Sarup v. State of Haryana; District Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi and H.C. Puttaswamy v. Hon''ble Chief Justice of Karnataka High Court, Bangalore. Therefore, we must let the matters lie where they are.

Applying the said principle to the facts of the present case, it is crystal clear that though, as on the date of appointment of the petitioner as Reader, he was lacking teaching experience, now, having worked in the Department of Botany as Reader for 6 years, he has gained experience and therefore, on equitable ground, in my considered opinion, the impugned order needs to be interfered with.

Now, turning to the judgment of the Division Bench of this Court in A.P. John Paulraj v. The Vice Chancellor, University of Madras (cited supra), the learned counsel would submit that that was a case where the appointment of a candidate who had no essential qualification was challenged by an un-successful candidate, but, that was not after the appointment was made. On an appeal against the order of the learned Single Judge of this Court, a Division Bench of this Court, having relied on few judgments of the Hon''ble Supreme Court including the case of Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others, , has held that the selected candidate had no Post Graduate degree from an Indian University nor any equivalent degree from any foreign University and, thus, did not possess the minimum essential qualification for appointment as Lecturer. On this factual finding, the Division Bench has set aside the appointment.

In my considered opinion, this judgment cannot be made applicable to the facts of the present case, since, that was a case where the selected candidate did not even have the basic required educational qualification. But, in the case on hand, it is not as though the petitioner did not have the required educational qualification. As I have already pointed out what was lacking was teaching experience. He had experience of 4 years 11 months and 6 days, whereas, the required experience in teaching is 5 years. Now, after 6 years of the appointment of the petitioner as Reader, reversion cannot be made on the ground of non possession of required experience in teaching. Hence, as has been held by the Hon''ble Supreme Court, on an equitable ground, the impugned order is liable to be set aside.

In the result, the writ petition is allowed and the impugned order of the first respondent bearing Ref. No. University Order No. 1315/2013(C) dt. 13.12.2013 is set aside. The respondent University is directed to issue a consequential order allowing the petitioner to join duty as Reader in the Department of Botany, within a period of six weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.