ORDER 1. The facts leading to these writ petitions are as follows: The petitioner, who is common to both the writ petitions (Dr. S. Mahadevan), is now working as Special Veterinary Officer, Animal Experimental Laboratory, Madras Medical College, Madras-3. He joined Government Service in 1959 as a Veterinary Assistant Surgeon in the Department of Animal Husbandry. He became Assistant Professor of Parasitology on the 1st of June, 1974. Thereafter, he became Special Veterinary Officer in the same cadre of Assistant Professor and was employed by the Tamil Nadu Agricultural University, the second respondent and the same is represented by its Registrar. 2. An advertisement in the English daily “The Hindu’ appeared on 8.2.1984, inviting applications inter alia for various faculties In the University, including that of Associate Professor. This advertisement was made by the second respondent. The prescribed qualifications for the post of Associate Professor were (1) Ph.D.degree and (2) Five years experience in teaching/ research in the subject concerned. The petitioner applied for the post of Associate Professor in Parasitology, in due form, on 15th of February, 1984, together with his bio-data, certificates and other relevant information. The application was also forwarded through proper channel. 3. The petitioner was called for an interview by the Selection Committee on 21.4.1985. The Selection Committee did not select the petitioner. However, it selected the first respondent who took charge as Associate Professor on 30.4.1984. Thereupon, the petitioner preferred a writ of quo warranto against the first respondent. That was dismissed by this Court. An application to review was also dismissed. It is thereafter, the present Writ Petition No.8226 of 1985 has been filed to quash the order dated 28.4.1984, by which the first respondent came to be appointed. A further prayer is also asked for to direct the second respondent to conduct a fresh selection for the post of Associate Professor in accordance with law. There is yet another Writ Petition No.7938 of 1985 in which the prayer is to prohibit the second respondent from continuing to pay the revised scale of pay to those persons who have not acquired the qualifications, prescribed by the University Grants Commission. 4. The contention of the learned Counsel for the petitioner Mr. P.S. Raman in support of the prayers in these writ petitions are as follows: The qualifications that were required as per the advertisement, were as per G.O.Ms.No.62, Agriculture, dated 10.1.1979. 4. The contention of the learned Counsel for the petitioner Mr. P.S. Raman in support of the prayers in these writ petitions are as follows: The qualifications that were required as per the advertisement, were as per G.O.Ms.No.62, Agriculture, dated 10.1.1979. The said G.O. was only for a period of five years. On the date of advertisement that G.O. was not operative at all, that having come to an end by the efflux of the five years period on 9.1.1984. Therefore, first of all, to state, as stated in the advertisement, that the qualifications will be governed by G.O.Ms. No.62, Agriculture, dated 10.1.1979 itself is wrong. Then what happened was the statute came to be amended. It is true that it was done without time limit of five years, though while amending the statute with regard to qualifications, this G.O.Ms.No.62, Agriculture, dated 10.1.1979 formed the basis of the amendment. However, the files of the University, throughout disclosed that the University never considered the amendment as timeless, or to govern for all time to come, disregardful of the five years limitation. On the contrary, the files clearly show that throughout, the University was conscious of the five years period and, in fact, was requesting the Government to pass fresh orders on the same lines, having regard to certain difficulties experienced by the University. It is only thereafter G.O.Ms.No.1633, Agriculture dated 23.8.1984 came to be passed. The resultant position is, between 10.1.1984 and 23.8.1984, only persons, who had obtained Doctorate (Ph.D. Degree), with requisite other qualifications, alone could apply. The first respondent being, admittedly, a possessor, on the relevant date, of M.Sc. degree was not qualified to apply at all. In support of this submission, reliance in placed on P.K. Ramachandra Iyer v. Union of India P.K. Ramachandra Iyer v. Union of India (1984)1 L.L.J.314 = (1984) Lab.I.C.301= (1984)2 S.C.C.141 = A.I.R.1984 S.C.541. 5. Secondly, this is a case in which injustice has been done to the other Post-Graduates, who were misled by the advertisement, because if they had known that, though they did not possess a Doctorate degree, their applications would be considered, they could have also staked their claims for the post. In so far as they have been denied, this is a clear case of injustice being perpetrated. 6. In so far as they have been denied, this is a clear case of injustice being perpetrated. 6. Thirdly, it is argued that having regard to the attainments and the high educational qualifications of the petitioner, had only the application of the first respondent been rejected, as not being eligible to apply, in terms of the qualifications prescribed by the University Grants Commission, certainly the petitioner would have stood a fair chance. If that chance is denied for any reason, certainly the selection of the first respondent would stand vitiated. 7. Lastly, it is contended that it is true the petitioner filed W.P.No.5426 of 1984 in which the prayer was for a quo warranto against the first respondent. But, in so far as the learned Judge had afforded liberty to challenge the first respondent's appointment, that cannot stand in the way of the petitioner, succeeding. It is equally true W.P.No.9495 of 1985 was filed challenging G.O.Ms.No.1633, Agriculture, dated 23.8.1984, on the contention that it had come to be passed to confirm certain benefit on the first respondent. Even the dismissal of that writ petition cannot stand in the way of the petitioner succeeding. In both the cases, the question never arose as to the relevant time (1) of advertisement, namely 8.3.1984 and (2) of selection of the first respondent, namely 28.4.1984. Neither G.O.Ms.No.62, Agriculture, dated 10.1.1979 was operative, nor again G.O.Ms.No.1633, Agriculture, dated 23.8.1984 come into force, since that came into force only on 23.8.1984. If there was a quietus on these two dates, only the Statute of the University, as amended, would come into play. But, in so far as it is clear from the files of the University the amendment was for all intents and purposes, it was considered to be operative only for a period of five’ years, the said amendment cannot be put against the petitioner beyond 9.1.1984. This was never an issue at all in the earlier writ petition. But, in so far as it is clear from the files of the University the amendment was for all intents and purposes, it was considered to be operative only for a period of five’ years, the said amendment cannot be put against the petitioner beyond 9.1.1984. This was never an issue at all in the earlier writ petition. If, therefore, this was not an issue between the parties, any observation of the Court about the first respondent possessing the necessary qualification would not constitute res Judicata, because that was a writ of quo warranto and the mere dismissal of it, as the learned Judge himself would hold, would not disable the petitioner to bring it now to the notice of the Court that the first respondent did not possess the requisite qualification on the relevant date. 8. The learned Advocate-General, who appears for the second respondent, states that as per the terms of G.O.Ms.No.62, Agriculture, dated 10.1.1979 all the existing members of the Staff, who had been given a right to attain Ph.D. Degree, were eligible to apply. However, G.O.Ms.No.62, Agriculture, dated 10.1.1979 did not stand by itself as an equal to the statute of the University came to be amended. The Board of the University approved the qualifications, as item No.29 (d), and while approving the qualification no time limit was prescribed. Then again, on 28.5.1984 the University requested the extension of the five years period time by another three years. It was that request, which was granted in G.O.Ms.No.1633, Agriculture, dated 23.8.84. The extension was being operative retrospectively for a period of three years from 10.1.1984. Nothing further was done after this Government Order. But, on 11.9.84, a note was put up for information. While the matter stood thus, on 8.2.1984 the advertisement was called for, in accordance with O.O.Ms.No.62, Agriculture, dated 10.1.1979. Irrespective of whether G.O.Ms.No.62, Agriculture, dated 10.1.1979 applied or not, in so far as the Statute of the University was amended, that would be enough to hold the first respondent as possessed the requisite qualification. In fact, this matter is now settled by a decision of this Court, when not only the writ petitions in w.p.Nos.5426 and 9495 of 1984 were dismissed, further, when Review Petitions Nos.6288 and 6289 of 1985 were also dismissed by the learned Judge of this Court. In fact, this matter is now settled by a decision of this Court, when not only the writ petitions in w.p.Nos.5426 and 9495 of 1984 were dismissed, further, when Review Petitions Nos.6288 and 6289 of 1985 were also dismissed by the learned Judge of this Court. In any event, since it is well settled in law that the principle of constructive res judicata is applicable to writ proceedings as well, as laid down in Forward Construction Co. and others v. Prabach Mandal, Regd, Andheri and others Forward Construction Co. and others v. Prabach Mandal, Regd, Andheri and others A.I.R.1986 S.C.391 that will afford a complete answer to the petitioner. 9. Mr. R. Sundaravaradan, learned Counsel for the first respondent, supporting the submissions of the learned Advocate-General, would contend that the earlier judgment of this Court clearly barred the petitioner from raising this contention. In that case, the very qualification of the first respondent was in question. This court having held that the first respondent possessed the qualification, the matter cannot be reopened again. Otherwise, there will be no finality. Then again, there is no justification for the petitioner to raise issue relating to qualifications now, in a collateral fashion, as though during the relevant time the G.O. was not operative, unmindful of the amendment, which had been brought about by the University. He would further contend that the eligibility or the qualification of the first respondent were very much in issue in the previous case. Even otherwise, it must be deemed to have been decided. Therefore, this is a clear case of either res judicata or at least constructive res Judicata. The second contention urged is University is all powerful to prescribe qualifications and there is no justification to contend that the qualifications prescribed were not possessed by the first respondent. 10. The next point that is urged is the Government, being the Pay Master, can always state as to what the qualification ought to be. Therefore, the validity of G.O.Ms.No.1633, Agriculture, dated 23.8.84 having been upheld, it is not open to the petitioner to resurrect the first respondent once again. Lastly, this is a clear case of laches on behalf of the petitioner. Nothing prevented him from questioning this, when he filed the earlier writ petition. As regards constructive res judicata, the learned Advocate General in Forward Construction Co. Lastly, this is a clear case of laches on behalf of the petitioner. Nothing prevented him from questioning this, when he filed the earlier writ petition. As regards constructive res judicata, the learned Advocate General in Forward Construction Co. and others v. Prabhat Mandal (Regd.) Andheri and others Forward Construction Co. and others v. Prabhat Mandal (Regd.) Andheri and others A.I.R.1986 S.C.391 would also seek to derive assistance from T.Govindaraja Muda-liar, etc. v. The State of Tamil Nadu and others T. Govindaraja Muda-liar, etc. v. The State of Tamil Nadu and others (1973)3 S.C.R.222 = A.I.R.1973 S.C. 974= (1973)1 S.C.C.336= as well as Ambika Prasad Mishra v. State of U.P. and others Ambika Prasad Mishra v. State of U.P. and others (1980)3 S.C.C.719 = A.I.R.1980 S.C.1762 and contend that every new discovery cannot lead to a fresh writ petition. 11. In order to appreciate this controversy, it is necessary on my part to provide a factual background. It is common case that the following advertisement appeared in ‘The Hindu’, Wednesday, February 8, 1984: “TAMIL NADU AGRICULTURAL UNIVERSITY COIMBATORE. - 641 003. Advertisement No.50/84. Applications in the prescribed form are invited for the following posts in the University. FACULTY OF AGRICULTURE: Professor: Agricultural Botany Associate Professor: Seed Technology Agricultural Economics. FACULTY OF AGRICULTURAL FNOINFFRING; Professor: Farm Machinery Agro-Industry Associate Professor: Farm Machinery, Soil and Water Construction, Agro Energy. FACULTY OF UNIVERSITY AND ANIMAL SCIENCES: Professor: Animal Nutrition Obstetrics and Gynaecology Preventive medicine Physiology Poultry Science Animal Husbandry Statistics Associate Professor : Parasitology Veterinary Public Health Physiology Livestock Research and Development Centre Surgery Anatomy SCALE OF PAY: Professor : Rs. 1500-60-1S00-100-2000-125-2500 Associate Professor: Rs.1200-50-1300-80-1900 QUALIFICATIONS: (In respect of all faculties other than Agrl. Engineering) Professor: Ph.D. Degree with ten years of experience in Teaching/Research in the subject concerned. Associate Professor: Ph.D. Degree with five years of experience in Teaching/ Research in the subject concerned. QUALIFICATIONS: (In respect of Agrl. Engineering faculty only) Professor: Ph.D. or M.E. or M.Tech. or M.Sc. with 10 years of experience (for all). Associate Professor: Ph.D. or M.E. or M.Tech. or M.Sc. with 5 years of experience (for all). Tamil Nadu Agricultural University Employees will be governed by the rules prescribed in G.O.Ms.No.62, Agriculture Department, dated 10.1.79. QUALIFICATIONS: (In respect of Agrl. Engineering faculty only) Professor: Ph.D. or M.E. or M.Tech. or M.Sc. with 10 years of experience (for all). Associate Professor: Ph.D. or M.E. or M.Tech. or M.Sc. with 5 years of experience (for all). Tamil Nadu Agricultural University Employees will be governed by the rules prescribed in G.O.Ms.No.62, Agriculture Department, dated 10.1.79. Application form and instructions to candidates can be had from the undersigned by sending a crossed postal order for Rs.2 drawn in favour of the Commissioner, Tamil Nadu Agricultural University, payable at Coimbatore 641 003 Post Office with a self addressed envelope (31 × 13cm) bearing postage stamp to the value of Rs.1.70. Completed applications should reach the undersigned before 5.00 p.m. on 9.3.1984. Dr. S.Jayaraj, Registrar. Place: Coimbatore 641003 Date: 3.2.1984.” One of the posts advertised is Associate Professor, Parasitology, with which we are concerned. 12. A careful reading of the above Advertisement shows that Tamil Nadu Agricultural University employees will be governed by the rules prescribed in G.O.Ms.No.62, Agriculture, dated 10.1.1979. The qualifications prescribed under the said G.O. may now be adverted to. In view of the Government receiving representations from the Tamil Nadu Agricultural University Teachers Associations as well as the University seeking certain clarifications in regard to the implementation of the University Grants Commission scales of pay and also the qualifications to be prescribed for the staff under the control of the Tamil Nadu Agricultural University, the Government examined the representations and prescribed the following qualifications: As regards the Associate Professor, the qualifications are (1) Ph.D. Degree and (2) five years of experience in teaching/researching in the subject concerned. After stating so, in paragraph 6, it is specifically held out as follows: “The Government also consider that teachers now in service aged 50 years and above on the date of issue of this order will be exempted from acquiring Ph.D. Degree. Others should acquire Ph.D. qualification within five years from the date of issue of this order. After stating so, in paragraph 6, it is specifically held out as follows: “The Government also consider that teachers now in service aged 50 years and above on the date of issue of this order will be exempted from acquiring Ph.D. Degree. Others should acquire Ph.D. qualification within five years from the date of issue of this order. During the interim period of five years, if any higher posts are advertised for recruitment, the existing regular candidates of the University may apply for such posts irrespective of their qualification but selection will he made after taking into account their experience and competence.” Therefore, it will he clear that those persons who were in the employment of the Tamil Nadu Agricultural University were given” elbow-room “to acquire Ph.D. qualification within five years from the date of the issue of this Government Order, namely, G.O.Ms.No.62, Agricultural Department, dated 10.1.1979. The date of the G.O. being 10.1.1979, it would come to an end by 9.1.1984 itself. Therefore, passing’ here for moment, I am surprised to note that an University, which is an enlightened place of learning, without regard to the terms of the G.O. particularly paragraph 6 thereof, which I have extracted above, must go to the extent of saying that the Agricultural University employees will be governed by this G.O. It should be carefully noted that this G.O. had become a dead letter by then, having lapsed by efflux of time. It should also be equally remembered, that this advertisement of the University does not refer to any rules or regulations made by the University. Therefore, what was held out was the qualifications, as prescribed under a G.O. which were not in force on the date of advertisement, namely, 8.2.1984. This is very important to be borne in mind. 13. It is common case between the parties that the University Grants Commission had insisted upon acquisition of Doctorate and it is only to enable such of those persons, who did not possess this requisite qualification of doctorate, to acquire this qualification the G.O.Ms.No.62, Agricultural Department, dated 10.1.79 came to be passed.. It is not to be understood, as though it is a permanent exemption given to all persons, who did not acquire Ph.D. Degree and to stake their claims, without acquisition of such qualification. In short, the five year period to gain this valuable qualification of Ph.D. was given by the Government. It is not to be understood, as though it is a permanent exemption given to all persons, who did not acquire Ph.D. Degree and to stake their claims, without acquisition of such qualification. In short, the five year period to gain this valuable qualification of Ph.D. was given by the Government. In this context, I will now go to the statutory provision. The Tamil Nadu Agricultural University Act, 1971, was passed for the establishment of University for the development of agriculture and for furthering the advancement of learning and prosecution of research in agriculture and allied sciences section 2 is the defining section. Under clause (d) ‘Board’ has been defined. ‘Board’ means the Board of Management of the University. Tinder clause (q) it is stated that ‘University’ means the Tamil Nadu Agricultural University established under section 3 section 3 talks of establishment of University, which reads as follows: ”3. Establishment of University: (1) For the development of agriculture and for furthering the advancement of learning and prosecution of research in agriculture and allied sciences, on and from the appointed day, there shall be established a University by the name Tamil Nadu Agricultural University. (2) The University shall be a body corporate, shall have perpetual succession and a common seal and shall sue and be sued by the said name. (3) The principal seat of the University shall be located within the town limits of Coimbatore or in any place, within a radius of twenty-five kilometres around the town limits of Coimbatore.” Section 38 talks of Regulations. The regulation-making power of the University is contained in section 46. Chapter III of the Regulation deals with classification of staff, recruitments and appointments. Regulation 5 states the qualification and method of selection and appointing authority in respect of various posts in the University shall be as specified in Appendix I. The qualifications and proceedings for recruitment prescribed in Appendix I shall apply to posts in the University after the date to be specified by Government under section 42 of the Act. The qualifications, as prescribed in Appendix I, for the post of Associate Professor are: “(a) A first or high second class degree in the subject pertaining to the Faculty. (b) A Ph.D. Degree in the concerned field of specialisation. (c) Teaching and/or research experience in any College for at least five years. The qualifications, as prescribed in Appendix I, for the post of Associate Professor are: “(a) A first or high second class degree in the subject pertaining to the Faculty. (b) A Ph.D. Degree in the concerned field of specialisation. (c) Teaching and/or research experience in any College for at least five years. (d) Experience in research in the concerned field of specialisation as evidenced by published papers in scientific journals and books. (e) A Master's degree-holder in the concerned field with not less than five years teaching and/or research experience may also apply.” Rut, the qualification, as prescribed herein, ran counter to the insistence of the University Grants Commission. That is why, I stated earlier, that it is the common case for the post of Associate Professor the University Grants Commission prescribed Ph.D qualification. It is for this reason, it became necessary for the Government of Tamil Nadu to issue G.O.Ms.No.62, Agricultural Department, dated 10.1.1979. As a sequel to this G.O.Ms.No.62, the Board of the Agricultural University, by its proceedings at its 34th Meeting held on January 16, 1979, noted as follows: “In G.O.Ms.No.62, Agriculture Department dated January 10, 1979, the Government have communicated the qualifications for the posts of Professor, Associate Professor and Assistant Professor separately in respect of all faculties other than A.S. Engineering and in respect of Agricultural Engineering faculty. A copy of the G.O. is placed below. The Board is requested to consider and approve the qualifications in modification of the qualifications approved under Agenda Item No.9 of the Twenty-ninth meeting of the Board of Management held on February 1, 1978.” One thing that requires to be carefully noted is that the Board approved the qualifications communicated in G.O.Ms.No.62, Agriculture, dated 10.1.1979; that means by a normal reading, I take it that whatever were the terms of the G.O. they came to be adopted in toto. However, the learned Advocate General would go to the extent of stating that no time limit was prescribed, while approving the qualifications. In accordance with the terms of the G.O. though the G.O. in its terms specifically put a five years limit, I am unable to accept this contention. It is very clear from the following that for all intents and purposes the University considered the five years limit having been engrafted. In accordance with the terms of the G.O. though the G.O. in its terms specifically put a five years limit, I am unable to accept this contention. It is very clear from the following that for all intents and purposes the University considered the five years limit having been engrafted. Otherwise, there is no justification for the University Board, when it met on October 6, 1982, to consider item No.58, namely, extension of period for acquiring the prescribed qualification in respect of Teaching Staff. I will now extract both the Note on that item No.58 as well as the ultimate resolution passed as follows: “Notes on Agenda Item No.58, to consider the extension of period for acquiring the prescribed qualification in respect of Teaching Staff. The University Grants Commission scales of pay were given to the Teaching Staff of the University with effect from 1.1.1974 with monetary benefit from 1.1.1977. Government in their letter. No.118317(A)/AU.I/77-l Agriculture Department dated 1.3.1978 have issued orders to the effect that those who are fully qualified will be allowed to draw their increments without any condition and those who are not qualified should acquire qualification within five years failing which they will cease to draw increments. In G.O.Ms.No.62, Agriculture Department, dated 10.1.1979, the Government have prescribed the following qualifications for the Teaching posts. All Faculties other than Agricultural Engineering: (a) Professor: Ph. D. Degree with ten years of experience in Teaching/Research in the subjects concerned. (b) Associate Professor: Ph.D. Degree with five years of experience in Teaching/Research in the subject concerned. (c) Assistant Professor: Ph.D. Degree or Masters Degree with three years experience. Faculty of Agricultural Engineering: (a) Professor: Ph.D. Degree or M.E. or M.Tech. or M.Sc. with ten years of experience. Faculty of Agricultural Engineering: (b) Associate Professor: Ph.D. or M.E. or M.Tech. or M.Sc with five years of experience. (c) Assistant Professor: M.E. or M. Tech. or M. Sc (B.E. (Ag.) will also be considered as adequate qualification till 31.8.1982 only). Government have also issued orders in the above Government Order that teachers now in service aged 50 years and above on the date of issue of the Government Order 10.1.1979 will be exempted from acquiring Ph.D, qualification within five years from the date of the Government Order. The University is providing Internal and External deputation and also part-time facilities to the Teaching Staff. The University is providing Internal and External deputation and also part-time facilities to the Teaching Staff. However, there are a number of teachers who have not acquired Ph.D. or are not like to acquire the same before 10.1.1984. The Madras Veterinary College Teachers’ Association, Madras and the Tamil Nadu Agricultural University Teachers’ Association have represented that the period of five years prescribed may be extended for another five years for the following reasons: (a) the last two batches of Teachers who are selected for Ph.D programme in the years 1978-79 and 1979-80 under part-time programme may not be in a position to acquire Ph.D. before 10.1.1984. (b) The Teachers selected for Ph.D subsequently under Internal Deputation cannot complete their programme before 10.1.84. (c) Many number of Teachers for whom facilities are not available for doing Ph.D. in Tamil Nadu Agricultural University have not yet been deputed outside the University. The Board is requested to consider the representation and take a decision so that Government may be addressed on this.” After this, on 13th January, 1983, the following letter was addressed by the Registrar to the University, to the Commissioner and Secretary to Government, Agriculture Department. Then on 28.5.1984, when the Board met, the following resolution was passed. I will extract here also the Note on Agenda 10 as well as the ultimate resolution passed thereon: “Notes on Agenda Item No.10 to approve and ratify the adoption of extension of the relaxation for acquiring the qualifications prescribed in respect of certain candidates for recruitment to certain posts beyond 9.1.1984. The Government, while prescribing the qualifications for the posts of Professor, Associate Professor and Assistant Professor in the University in G.O.Ms. No.62, Agri. Dept. dated 10.1.1979, have ordered that the teachers in service aged 50 years and above on the above date will be exempted from acquiring Ph.D. Degree and others should acquire Ph.D. qualification within five years from the date of this order, viz., 10.1.1979. During the interim period of five years if any higher posts are advertised for recruitment, the existing regular candidates of the University may apply for such post irrespective of their qualifications; but selections will be made after taking into account their experience and competence. The five year period prescribed in the aforesaid G.O. expired on 9.1.1984. During the interim period of five years if any higher posts are advertised for recruitment, the existing regular candidates of the University may apply for such post irrespective of their qualifications; but selections will be made after taking into account their experience and competence. The five year period prescribed in the aforesaid G.O. expired on 9.1.1984. In the meanwhile the TAUTA and MVCTA represented that the relaxation given in the above G.O. may be extended for another term of five years. The request was placed before the Board of Management at its Fifty second meeting held on December 27, 1982. The Board considered and decided to recommend to the Government, extension of the period for acquiring the prescribed qualification, viz., Ph.D. in respect of the teaching staff in the University by three years. The Government have been requested to extend the concessions given in G.O.Ms.No.62, Agrl. Dept. dated 10.1.1979 for a further period of three years from 10.1.1984 and the matter is still under the consideration of the Government. In the meanwhile, certain higher positions viz. University Officers, Professors and Associate Professors had to be filled up following the recruitment procedure in vogue, adopting the prescribed qualifications. In view of the fact that the Government have been requested already to grant extension of time limit upto 9.1.1987 to the staff for acquiring Ph.D. qualification and it will take sometime to get the orders of the Government for the same, the relaxations given in G.O.Ms.No.62, Agriculture Department, dated 10.1.1979 have been extended to be given beyond 9.1.84 (viz. the five year period already prescribed) and the existing regular candidates of the University have been allowed to apply and get selected for the higher positions irrespective of their qualifications pending receipt of orders from the Government on the request of the University, subject to the approval of the Board of Management. The Board is requested to approve and ratify the action taken by the University in having adopted the concessions given in G.O.Ms.No.62, Agri. Dept. dated 10.1.79 beyond 9.1.1984 in respect of the existing regular staff of the University pending receipt of Government orders extending the time upto 9.1.87, for recruitment of the existing staff members for higher positions in the University.” Then, after all this, G.O.Ms.No.1633, Agriculture, dated 23.8.1984, which extended the period by three years from 10.1.1984, was forwarded to the Tamil Nadu Agricultural University. The Board of Management, in its Fifty-eighth Meeting held on September 11, 1984, notes this for information, as follows: “Agenda Item No.41: TO NOTE FOR INFORMATION THE ORDERS OF THE GOVERNMENT EXTENDING THE TIME LIMIT FOR ACQUIRING THE PRESCRIBED QUALIFICATION VIZ., Ph.D. BY THE TEACHING STAFF IN THE UNIVERSITY. The Board noted for information the Government Orders extending the same concessions as ordered in the G.O.Ms. No.62, Agriculture Department, dated 10.1.1979 for the teaching staff of the University to acquire the prescribed qualification viz., Ph.D. by three years from 10.1.1984.” Here again, it is necessary for me to extract the notes on the Agenda as well as the ultimate resolution: “NOTES ON AGENDA ITEM NO.41: To note for information the orders of the Government extending the time limit for acquiring the prescribed qualification viz., Ph.D. by the teaching staff in the University. The Board of Management at its fifty-second meeting held on December 27, 1982 considered the requests of the Tamil Nadu Agricultural University Teachers’ Association and the Madras Veterinary College Teachers’ Association for extending the period of five years already prescribed as ordered in G.O. Ms.No.62, Agriculture Department, dated 10.1.1979 and decided to recommend to the Government extension of period for acquiring the prescribed qualification by the teaching’ staff by a period of three years. Accordingly, the Government were addressed for extending the time limit for acquiring the prescribed qualification by the teaching staff by three years from 10.1.1984. Now, the Government in G.O.Ms.No.1633, Agriculture (AU-I) Department dated 23.8.1984 have issued orders on the above and a copy of the G.O. is placed below as Annexure. The Board is requested to note for information the above orders of the Government extending the same concessions as ordered in the G.O.Ms.No.62, Agriculture Department, dated 10.1.1979 for the teaching staff of the University to acquire the prescribed qualification viz.. Ph.D. by three years from 10.1.1984. 2. The Government have also ordered that the teaching staff in service who are aged, below 50 years should acquire Ph.D. degree within a period of five years from the date of issue of the aforesaid order. 3. Ph.D. by three years from 10.1.1984. 2. The Government have also ordered that the teaching staff in service who are aged, below 50 years should acquire Ph.D. degree within a period of five years from the date of issue of the aforesaid order. 3. The Registrar, Tamil Nadu Agricultural University in his letter second read above has requested the Government to extend the period of acquiring the prescribed qualifications, viz., Ph.D. in respect of the teaching staff for a further period of three years from 10.1.1984 and also to allow drawal of increments upto the expiry of the three years period, as recommended by the Board of Management of Tamil Nadu Agricultural University. 4. The Government have examined the above request of the Registrar, Tamil Nadu Agricultural University and they direct that the period for acquiring the prescribed qualifications viz., Ph.D. in respect of the teaching staff aged below 50 years and who have not yet completed the Ph.D. course till date as per the orders already issued in the G.O. first read above be extended for a further period of three years from 10.1.1984 and that the above staff be also entitled to draw their increments upto the expiry of the said period of three years. 5. The Registrar, Tamil Nadu Agricultural University is also informed that no further extension beyond 10.1.1987 under any circumstances will be granted to the teaching staff who have now been given extension of three years for acquiring Ph.D. qualification in para.4 above. 6. This order issues with the concurrence of Finance Department vide its U.O.No.69604/84 Agri.II/84-1, dated 12.7.1984. (BY ORDER OF THE GOVERNOR) Sd/- A. Venkataraman, Commissioner and Secretary to Government”. Thus, it is beyond dispute that at no point of time, the University ever considered that it had modified the qualifications by dispensing with the Ph.D. Degree. Incidentally, I may state that throughout the length and breadth of the Act, I am unable to see as to what exactly is the role assigned to the Government vis-a-vis the University, though Mr.R.Sundara-varadan, learned Counsel for the first respondent, would state that the Government is the Pay Master and therefore it can pass any rule as it likes. The argument has to be rejected as untenable. In the ordinary parlance, he who pays may call the tune. The argument has to be rejected as untenable. In the ordinary parlance, he who pays may call the tune. But, certainly not where the University has come to be established by the Tamil Nadu Agricultural University Act, wherein there is not even a stray right confined on the Government. The Government has no place within the four corners of the Act. But, this need not detain us. What emerges from the above analysis is, during the relevant time, namely on 8th February, 1984, (1) G.O.Ms.No.62, Agriculture, dated 10.1.79 had come to an end by efflux of time and (2) Item No.29(d) dated 16.1.1979, wherein the Board approved the qualification prescribed in G.O.Ms.No.62, Agriculture, dated 10.1.1979, approved the limited five year period for reasons, already stated. Therefore, the approval of the qualification by the Board cannot be extended further. To repeat, because of the insistence and the repeated request by the University to extend it for another three years, G.O.Ms.No.1633, Agriculture, dated 23.8.1984, extended the acquisition of Ph.D. qualification from 10.1.1984. During the relevant date, namely, on the date of the appointment of the first respondent 28.4.1984; the qualifications prescribed by the University Grants Commission alone will prevail. If that were so, the first respondent, not being a possessor with Doctorate Degree, was ineligible to apply. Therefore, his application ought not to have been considered, much less his being selected. I should also observe in this connection that G.O.Ms.No.1633, Agriculture, dated 23.8.1984 does not have any statutory basis, as was found by my learned brother Mr.Justice Nainar Sundaram in W.P.Nos. 5426 and 9495 of 1984. There again, that being an order passed under Article 309 of the Constitution of India, it “could not have been retrospectively effected at all. 14. Now, therefore, arises the question whether the finding in the earlier writ petitions would constitute res judicata In the proper sense or at least constructive res judicata. As regards quo warranto, my learned brother Nainar Sundaram, J. had stated in paragraph 20, as follows: “These irregularities could always be remedied and there is no legal impedi-ment to a reappointment of the first respondent to the office if that process should necessarily be gone through once again as per the statutory prescriptions of qualifications. As regards quo warranto, my learned brother Nainar Sundaram, J. had stated in paragraph 20, as follows: “These irregularities could always be remedied and there is no legal impedi-ment to a reappointment of the first respondent to the office if that process should necessarily be gone through once again as per the statutory prescriptions of qualifications. A writ of quo warranto is not a motion of course and it is in the discretion of the court to issue it, considering the circumstances of the case.” Then again, it was held that, as a matter of fact, the appointment of the first respondent to the Office did satisfy the statutory prescriptions and was not in derogation of any statutory mandate, showing that the statute was prevalent at that time. But the whole question before me is entirely different. Whether there was a relevant statute or a Government Order, which enabled the first respondent to put forth his claim, with a mere M.Sc degree, this question was never agitated before the learned Judge. It is that which is argued before me. It is true that the principle of constructive res ju dicata would apply to writ proceedings as well, because it is a wholesome rule, based on the general principle, that no person shall be punished twice over the same cause. That is why in Forward Construction Co. and others v. Prabhat Mandal (Regd,) Andheri and others Forward Construction Co. and others v. Prabhat Mandal (Regd,) Andheri and others A.I.R.1986 S.C.391 the principle of constructive res judicata was held applicable to writ petitions as well. But, in this case, the files clearly disclose that during the relevant date, neither G.O.Ms.No.62, Agriculture, dated 10.1.1979 nor G.O.Ms.No.1633, Agriculture dated 23.8.1984, could apply and not the amendment carried out to the regulations by the Board could apply. It is a matter of eligibility, which was not subject-matter, and it cannot be contended that this ought to have been put forth. From that point of view, I am unable to see how the principle of constructive res judicata would apply. Even that apart, on general principle, when a glaring instance of injustice is brought to the notice of the Court, the rights of a persons cannot be defeated on such rules, which are intended to attain finality of litigation. From that point of view, I am unable to see how the principle of constructive res judicata would apply. Even that apart, on general principle, when a glaring instance of injustice is brought to the notice of the Court, the rights of a persons cannot be defeated on such rules, which are intended to attain finality of litigation. I say injustice because, admittedly, the petitioner did possess Ph.D. degree on that date; therefore, the disregard of that claim, certainly will be unjust. For all these reasons, I allow W.P.No.8226 of 1985. The writ petitioner will be entitled to costs from the second respondent (one set Rs.1,000/-). 15. As regards the writ of prohibition in W.P.No.7938 of 1985, it is now for the University to consider the prayer therein in the light of the judgment made in W.P.No.8226 of 1985. W.P.No.7938 of 1985 is ordered accordingly. No costs. Petition allowed.