[Judgment of the Court was delivered by J.NISHA BANU, J.] The appellants herein are the respondents in W.P(MD).No.9700 of 2011 and the first respondent herein is the Writ petitioner in the said Writ Petition. However, for the sake of convenience, the parties are referred to as per the rank mentioned in the Writ Petition.
2. This Writ Appeal has been filed against the order dated 27.08.2012 made in W.P.(MD).No.9700 of 2011, in and by which, the impugned order passed by the first respondent and the third respondent therein were set aside and consequently a direction was issued to the respondents to appoint the petitioner as Principal, Constituent Colleges of Bharathidasan University, Lalgudi in pursuance of the petitioner's selection by the Syndicate of respondent University. Aggrieved over the same, the respondents are before this Court.
3. The short facts leading to filing of this Writ Appeal is as follows:-
3.1. Since the facts had been extensively dealt with by the learned Judge, we summarise the same for the purpose of deciding this appeal alone. As we earlier pointed out, the parties are referred to as per the order made in the W.P.(MD).No.9700 of 2011.
3.2. The case of the petitioner is that she passed the graduation in Bachelor of Science in Chemistry in the year 1987, and got a degree of Post Graduate in Bio-Chemistry in the year 1989 and M.Phil., in 1994 in Applied Chemistry. The petitioner was conferred with Ph.D., (Bio Chemistry) and qualified in the State Level Educational Test. She has put in total service of 19 years in teaching field working as Lecturer and Head, Department of Bio-Chemistry, J.J.College of Arts and Science, Pudukottai, which is affiliated to the second respondent University. Now, the petitioner is working as an Assistant Professor, Department of Bio-Chemistry in Raja Sarfoogi Government College, Thanjavur, and is also the Chairman and Member of Board of Studies, Chairman/Chief Examiner and Member of Board of examination of Bharathidasan University. In addition, the petitioner holds other positions in Alagappa University and Tamil University in different capacity.
3.3. In view of the qualification of the petitioner with more than ten years of experience, the petitioner is entitled to be considered as holding a post equivalent to Selection Grade Lecturers working in the Government Colleges. While so, Bharathidasan University invited applications for faculty position in the constituent Colleges at Orathanadu, Perambalur and Lalkudi. The qualification prescribed for the Cadre of Principal reads as under:-
?A Master's Degree with at least 55% of the marks or its equivalent grade of B in the 7 point scale with letter grades O, A, B, C, D, E & F.
Ph.D., or equivalent qualification.
Professor in an University or Lecturer (SG), Reader in a College with at least 15 years of teaching experience at UG / PG level.
Administrative experience preferred?.
3.4. The petitioner was also called for personal interview for the post of Lecturer on 03.06.2009 and she was selected for the post of Principal of Lalkudi College, but thereafter, no communication was received by her. A Resolution was also adopted by the Syndicate in its 187th meeting held on 10.06.2009, approving the appointment of the petitioner. A decision was also taken to issue offer of appointment to the petitioner as Principal of Lalkudi College under the general turn category. In spite of the approval by the Syndicate of the University, the petitioner was not issued with any appointment letter. The petitioner sent a representation on 01.10.2009, to the first respondent, which was followed by another representation dated 29.10.2009, to the second respondent for issuance of appointment order in pursuance to her selection. However, as there was no response from the respondents, the petitioner was constrained to file W.P.(MD)No.11601 of 2009 for a direction to the respondents to appoint the petitioner, as Principal, Lalgudi College, Lalgudi and the said Writ Petition was disposed of by this Court on 07.04.2011 with a direction that the representation sent by the petitioner shall be treated as an appeal and to pass final orders within a period of two months from the date of receipt of the copy of the order.
3.5. While the matter stood thus, the petitioner was informed that even though the petitioner was duly selected, she was only working as a Lecturer and hence the appointment letter could not be issued. Ultimately, it was informed by the respondents that the petitioner was not eligible for the post of Principal and a decision was taken to fill up the post of Principal through re-advertisement. It is the admitted case of the parties, that the reason for non-issuance of appointment letter to the petitioner is that, at the time of interview, though the petitioner was working as a Lecturer having 19 years of experience, she was not conferred with Selection Grade.
4. Considering the above submissions made by the petitioner as well as the respondents and the materials placed before the Writ Court, the learned Judge has allowed the Writ Petition. Aggrieved by the same, the respondents are before this Court.
5. The learned Counsel for the respondents has filed this appeal by contending that the Syndicate has passed a resolution to issue the appointment order to the petitioner and subsequently, the same Syndicate has passed a resolution to go for fresh selection. He also vehemently argues that the petitioner after participating in the selection process, now could not question the selection process. The respondents further submits that as per the Government Order in G.O.Ms.No.345 Higher Education (H1 Department) dated 03.10.2005, selection grade is a qualification and the advertisement is against the said government order and therefore, the Syndicate decided to go for fresh selection and placed reliance on many judgments reported by this Court stating that there is no dispute to the fact, if there is a conflict between the qualification prescribed by the State Government and the University Grants Commission, it is the University Grants Commission Guidelines, which prevails. But, it is always open for the State to prescribe more or additional or extra or maximum qualification, if the state regulation is not inconsistent with the UGC regulation, the same will not be interfered and relied on judgments reported in 2004 (4) SCC 513, State of Tamil Nadu and another Vs. S.V.Bratheep, 2011 (4) SCC 606, Visveswaraiah Technological University Vs. Krishnendu Halder, and 2015 (6) SCC 363, Kalyani Mathivanan Vs K.V.Jeyaraj and Others. He also submits that the instruction to candidate forms part of the notification and therefore, it is mandatory to follow the instruction and relied on judgment reported in 2006 (3) CTC 449, Dr.M.Vennila Vs. Tamil nadu Public Service Commission. He also makes his further submission that as the petitioner has participated in the selection, she is estopped from questioning the selection process and relied on the judgment reported in 2013 (11) SCC 309, Ramesh Chandra Shan and Others Vs. Anil Joshi and Others.
6. It is also the submission of the respondent counsel that the petitioner had not worked in a sanctioned post but worked in a consolidated pay and was not even in a time scale of pay and therefore, she was not conferred with the selection grade. The respondents also submit that the additional typed set filed during final arguments in appeal cannot be relied on, as it is not supported by pleadings. In this connection, he relied on the judgment reported in 2008 (17) SCC 491, Banchhaj Nahar Vs Nilima Mandal and another.
7. Per contra, the counsel for the petitioner would contend that the petitioner was working in a time scale of pay and had put in 19 years of experience. He also submits that even as per the qualification prescribed in the State Government in G.O.Ms.No.345 Higher Education (H1 Department) dated 03.10.2005 the minimum of total experience is 15 years of teaching/research in Universities/Colleges and other institutions of higher education, whereas, the selection grade mentioned in the explanation is only applicable for the appointment by promotion and not in the case of direct recruitment. There should be no discrimination among the lecturers who have rendered 15 years of service in Government Colleges as well as in self-finance colleges and also denied that the appointment is a temporary one. In the appointment order itself, it is mentioned that the pay is a time scale of pay as per the University Grant Commission regulations and also the appointment of the petitioner is a permanent one and admittedly, the petitioner has put in 19 years of service.
8. The learned Counsel for the petitioner also submitted that the learned Judge while allowing the Writ Petition also considered the submission that one Dr.R.Mathivanan, who was identically placed like the petitioner had also 20 years of experience as Lecturer and Head of the Department of Commerce in Thandhai Hans Rover College, Perambalur, without being placed in selection grade was appointed as Principal of Bharathiyar Universwity College of Arts and Science, Valparai. Even in the subsequent advertisement made by the appellant university in Notification No.12204/H4/2014 dated 07.08.2014 the prescribed qualification for appointment to the post of Principal is Ph.D., degree with 15 years of experience in teaching in any institution of learning without insisting on selection grade. It was further contended by the learned Counsel for the petitioner that the Resolution by itself is not an order and the same can be given effect to only by passing formal order by the competent authority and therefore, the resolution made by the University cannot be subjected to judicial review and relied on the judgment reported in 2015 (2) CWC 366, Shantha Srinivasan Vs. The Secretary to Government Housing and Urban Development Department. Therefore, the order of the learned Single Judge does not warrant interference.
9. Heard the submissions made on either side and perused the materials available on record.
10. Before going into the aspect of the matter, it is useful to extract the relevant portion of the G.O.Ms.No.345 Higher Education (H1 Department) dated 03.10.2005 reads as under:-
?2. PRINCIPALS (GRADE ? I) i.A Masters Degree with at least 55% of marks of its equivalent grade ?B? in the seven point scale.
ii.Ph.D., or equivalent qualification A minimum total experience of 15 years of teaching / research in Universities / Colleges and other institutions of Higher Education.
PRINCIPALS (GRADE ? II) i.A Master Degree with at least 55% of marks or its equivalent Grade ?B? in the seven point scale.
ii.Ph.D or equivalent qualification iii.A minimum total experience of 10 years of teaching / research in Universities / Colleges and other institutions of Higher Education.
Explanation:-
i.However, the Principals of Government Colleges are presently being placed in two grades on the basis of the following criteria; Grade-1 Principals are posted to colleges with atleast two P.G.Courses and a student strength of not less than 1000 in regular course of study. Grade-II Principals are posted to other colleges.
ii.Appointment to the post of Principals is being made from among the holders of posts of Lecturers (Selection Grade/Reader) in colleges. The seniority as Selection Grade Lecturer is the criteria for promotion. iii.........
iv...........?.
11. From the reading of the above provision, in our considered opinion, it is very clear that the total qualification prescribed is only a minimum total experience of 15 years of teaching/research in Universities/Colleges and other institutions of a higher education and the selection grade which is meant in the explanation is only applicable for appointment by promotion and not in the case of direct recruitment.
12. Further, in the present case, the selection grade, in our opinion, is not a promotion but an upgradation given to an individual to recognise his/her service on completion of ten years as she/he does not have any promotional avenue for the post for ten years and it is a kind of upgradation that has been given only in Government Colleges and not in private colleges. In other words, if a person completes a period of ten years, he/she is deemed to have been conferred with selection grade and here the petitioner, admittedly, had put in a period of 19 years of qualifying service and therefore, in our considered opinion, the petitioner comes within the norms of the qualification prescribed in G.O.Ms.No.345 Higher Education (H1 Department) dated 03.10.2005 and is entitled for appointment as Principal which was well founded by the learned Judge and therefore, the judgments relied on by the learned Counsel for the appellants are not applicable to the case on hand. Even in the subsequent advertisement, it is not called for the qualification of selection grade and therefore, the submissions made by the appellants cannot be sustained.
13. The argument advanced by the respondents stating that the resolution of her selection was not challenged by the petitioner can also not be accepted as her resolution cannot be subjected to judicial review as reported in 2015 (2) CWC 366, Shantha Srinivasan Vs. The Secretary to Government Housing and Urban Development Department.
14. The further argument made by the respondents that the petitioner is a temporary employee who does not receive any time scale of pay is also against the available records and it is seen that the petitioner is a regular lecturer who has been paid with time scale of pay with regular increments and the learned Judge, while allowing the Writ Petition has rightly considered the submissions made by the learned Counsel for the petitioner that while appointing one Dr.R.Mathivanan, who has got 20 years of experience as Lecturer and Head of the Department of Commerce in Thandhai Hans Rover College, Perambalur, as Principal of Bharathiyar University College of Arts and Science, Valparai, the same was done without insisting on the selection grade. Therefore, from any angle, the argument advanced by the respondents cannot be accepted in the case on hand.
15. Apart from that, we find that while allowing the claim of the petitioner, the learned Judge has rightly relied on the Hon'ble Supreme Court, in the case of SHANKARSAN DASH ..VS.. UNION OF INDIA (A.I.R. 1991 S.C. 1612) wherein it is held that inclusion of candidates name in merit list does not confer any right to be selected, in this very case, the Hon'ble Supreme Court held that this position of law does not authorise the State Government to act in an arbitrary manner, as the decision not to fill up the vacancy has to be taken bona fide for appropriate reason.
16. The learned Judge for arriving at his conclusion has relied upon yet another Supreme Court in the case of MISS NEELIMA SHANGLA ..VS.. STATE OF HARYANA (A.I.R 1987 S.C. 169) wherein it was pleased to lay down that it was open to the Government not to fill up all the vacancies, but the selection cannot be arbitrarily restricted to few candidates notwithstanding the number of vacancies and the availability of qualified candidates as there has to be a conscious application of mind by the government before any appointment is restricted. It was also held that the State can not act in an arbitrary manner.
17. In this case, it is not only that the petitioner was selected for the post, but also her appointment was duly approved by the competent authority i.e., the Syndicate. It was only a ministerial act of issuance of an appointment letter, which was left to be completed. The action of the respondents, in not issuing the appointment letter and going for fresh selection is arbitrary and amounts to colourable exercise of power. After the approval of appointment of the petitioner by the Syndicate, the petitioner had acquired vested right to get her appointment, which could not be defeated, in one way or the other, in an arbitrary manner, as rightly pointed out by the learned Judge and therefore, the judgment relied on by the respondents in any angle is not applicable to the present case in hand.
18. For all the afore-stated circumstances and findings, the order of the learned Judge does not warrant any interference from this Court.
19. In the result, this Writ Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Vice Chancellor, Bharathidasan University, Trichirappalli ? 620 024.
2.The Registrar, Bharathidasan University, Trichirappalli ? 620 024. .