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2010 DIGILAW 247 (GAU)

H. Biren Singh v. State of Manipur

2010-04-08

ASHOK POTSANGBAM

body2010
JUDGMENT A. Potsangbam, J. 1. Heard Mr. H.S. Paonam, learned Counsel appearing for the petitioner, Mr. Y. Ashang, learned Government Advocate appearing on behalf of respondent Nos. 1, 2 and 3 and also heard Mr. A. Jagjit and Mr. S. Jaljit, and learned Counsels appearing for the respondent Nos. 5 and 6 respectively. None appears on behalf of respondent No. 4. 2. This petition has been filed by the writ petitioner, challenging the impugned order dated 17.9.2009 (Annexure-13) by which the respondent Nos. 4, 5 and 6 have been transferred and posted as Principal-In-charge of Government Colleges, on the ground that the private respondent Nos. 4, 5 and 6 did not have the requisite qualification for appointment as Principal of Government College, in terms of the Recruitment Rules dated 4.9.2002. During the pendency of this writ petition, the private respondents have retired from service. The respondent No. 4 retired earlier and the respondent Nos. 5 and 6 retired w.e.f. 28.2.2010. In view of the above, I do not propose to discuss the facts in detail except the facts which may be required for determination of the sole issue i.e. "Eligibility for appointment as Principal of Government Colleges in terms of the relevant Recruitment Rules." 3. It is stated that the petitioner who was appointed as Lecturer in the year 1975, was placed in the grade of selection grade lecturer w.e.f. 28.6.1989 and thereafter, he obtained his Ph.D. degree. By notification dated 28.11.1994, the petitioner was placed in the grade of Reader on the recommendation of a DPC associated with Public Service Commission. Thus, the petitioner claims that he is eligible for appointment as Principal in any Government College in terms of the extant Recruitment Rules. 4. It is pertinent to mention that after a consensus arrived at the conference of Vice Chancellors of Indian Universities, held in the year 1989, a resolution was adopted by the conference to the effect that uniform educational qualification and pay scales be prescribed for all the grades of teacher in Colleges and Universities. Thereafter, various Commissions were set up by the Government of India and on the recommendation such Commissions, being consistent with the consensus arrived at the Vice Chancellors conference as referred to above, Regulation 1991 was framed and issued by the University Grants Commission (UGC for short) with revision and modification made from time to time. Thereafter, various Commissions were set up by the Government of India and on the recommendation such Commissions, being consistent with the consensus arrived at the Vice Chancellors conference as referred to above, Regulation 1991 was framed and issued by the University Grants Commission (UGC for short) with revision and modification made from time to time. In the aforesaid Regulation, minimum qualification for appointment in different grades of teacher and scale of pay for all the grades were prescribed. 5. Reverting to the relevant facts of the instant case, it may be stated that by a communication dated 4.4.2000, all the Universities were notified by the University Grants Commission about the framing of the UGC Regulation on minimum qualification for appointment and career advancement in various grades of teacher for the Universities and Colleges. By this regulation, all the posts of Principals, both in the grade of Professor as well as reader, have been made as direct recruitment post and qualifications prescribed for the aforesaid two grades of Principals are as follows : 1.1.0. Principal (Professor's grade). 1. A Master's Degree with at least 55% of the marks or its equivalent grade of B in the 7 point scale with latter grades O, A, B, C, D, E and F. 2. Ph.D. or equivalent published work. 3. Total experience of 15 years of teaching/Research in Universities/Colleges and other institutions of higher education. 1.2.0. Principal (Reader's Grade) 1. A Master's Degree with at least 55% of the marks or its equivalent grade of B in the 7 point scale with latter grades, O, A, B, C, D, E and F. 2. Ph.D. or equivalent published work. 3. Total experience of 10 years of teaching/Research in Universities/Colleges and other institutions of higher education. 6. 1.2.0. Principal (Reader's Grade) 1. A Master's Degree with at least 55% of the marks or its equivalent grade of B in the 7 point scale with latter grades, O, A, B, C, D, E and F. 2. Ph.D. or equivalent published work. 3. Total experience of 10 years of teaching/Research in Universities/Colleges and other institutions of higher education. 6. In supersession of all previous Rules issued for recruitment to the post of Principal of Government College, the Governor of Manipur, in exercise of power conferred by the proviso to Article 309 of the Constitution of India, made the Recruitment Rule for appointment to the post of Principal in Government Colleges (Reader grade), vide notification dated 4.9.2002 and this Recruitment Rule is called as "Education (U) Department, Manipur (Principal of Government Colleges (Reader's Grade) (Except Principal in Law College, D.M. College of Teachers' Education and Government College of Technology) Recruitment Rules, 2002 (hereinafter referred to as Recruitment Rules, 2002)." By this Recruitment Rules, 2002, the post of Principal has become a direct recruitment post and only those teachers who fulfil the qualification prescribed therein, as extracted hereinabove, could become eligible for consideration of appointment against any post of Principal in Government Colleges. In other words, an incumbent, in addition to securing 55% marks or equivalent in Master Degree, has to possess Ph.D. Degree or equivalent qualification with 10 years of experience in teaching/research in University/College and other institutions of higher education, in order to earn eligibility for appointment as Principal of a Government College. A relaxation of 5% is provided in respect of marks to be secured at the Master Degree for SC/ST categories etc. as well as for those who obtained Ph.D. Degree before 19.9.1991. 7. The contention of the petitioner is that only those lecturers in the grade of Reader who fulfil the qualification prescribed in column 7 of the Recruitment Rules, 2002, can be considered for appointment as Principal of Government College, either on regular basis or officiating or ad hoc or even on In-charge basis. The further case of the petitioner is that even for appointment of Principal on In-charge basis, one has to fulfil the conditions of recruitment prescribed in the Statutory Rules, 2002. Therefore, the transfer and posting of private respondent Nos. The further case of the petitioner is that even for appointment of Principal on In-charge basis, one has to fulfil the conditions of recruitment prescribed in the Statutory Rules, 2002. Therefore, the transfer and posting of private respondent Nos. 4, 5 and 6 who, admittedly, were not Ph.D. degree-holders, as Principal In-charge of Government Colleges was in violation of the Statutory Rules and that too by ignoring the claims of qualified candidate like the petitioner and as such the appointment and posting of private respondents as Principal In-charge of Government Colleges are liable to be quashed. The above is the sum and substance of the arguments advanced by the learned Counsel appearing for the petitioner. 8. The respondent Nos. 5 and 6, though retired during the pendency of the this writ petition, filed their respective affidavits contending therein that as the post of Principal in Government College became vacant before the Recruitment Rules, 2002 came into force, appointment/promotion to the post of Principal of Government College should be governed by the Rules prevalent at the time of occurrence of the vacancies i.e. Recruitment Rules of 1981. In support of the above proposition, the respondents have pressed into service the following cases : (1989) 3 SCC 284 Y.B. Rangaiah v. J. Serrnevasa and (1997) 10 SCC 419 State of Rajasthan v. R. Dayal and Ors. In both the cases, the Apex Court held that if the vacancies occurred at a particular point of time in a promotion post, the Recruitment Rules prevalent at the time of occurring the vacancies shall be the rules which shall govern the appointment and filling up of the vacancies. It must be clearly understood that in both the cases, the question which came up for consideration before the Apex Court, was as to which of the rules, either the rules prevalent at the time of occurrence of the vacancies or the rules amended after the occurrence of the vacancy, should govern the appointment and filling up of the vacancies. This Court has no problem with the ratio laid down by the Apex Court in those cases and the aforesaid proposition is still holding the field on the subject-matter. 9. This Court has no problem with the ratio laid down by the Apex Court in those cases and the aforesaid proposition is still holding the field on the subject-matter. 9. As against the aforesaid proposition, the learned Counsel appearing for the petitioner submits that the ratio laid down in the aforesaid two cases are not applicable in the case at hand because in the instant case, the post of Principal is a direct recruitment post, not a promotion post. The further submission is that during the validity and subsistence of 1981 Recruitment Rules, the post of Principal was a promotion post but the 1981 Rules had already been superseded by the Recruitment Rules, 2002 and there is no challenge by the private respondents against the 2002 Rules and as such, the question of revival of 1981 Rules does not arise for any consideration by this Court. 10. In support of the aforesaid propositions, Mr. H.S. Paonam, learned Counsel for the petitioner, cited 1994 (Supp) 2 SCC 226 Union of India and Anr. v. Yogendra Singh, wherein the Apex Court held that "No candidate who does not possess the currently prescribed qualifications, but who may possess the educational qualifications prescribed earlier, can be said to qualify or have any vested right to appointment even against some earlier unfilled vacancy. Every candidate who aspires to fill any vacancy must possess the educational qualifications that are then prescribed." In 1997 (3) SCC 497 Dr. P.N. Dubey and Ors. v. State of Maharashtra, the Apex Court held that the rules in force on the date of advertisement is the relevant rules, which shall govern the process of recruitment to the post. The above two cases relate to filling up of post, under direct recruitment. Thus, it can be well concluded that insofar as filling up of direct recruitment posts, it is the rules prevalent at the time of advertisement and the qualifications prescribed in such advertisement is the qualifications to be considered for determining the eligibility of a candidate. The above proposition of law is not contrary to the law laid down by the Apex Court with regard to filling up of vacancy in promotion posts. 11. It is stated by the Government in their affidavit dated 5.1.2010 that requisition had already been made by the Government for filling up 26 Nos. The above proposition of law is not contrary to the law laid down by the Apex Court with regard to filling up of vacancy in promotion posts. 11. It is stated by the Government in their affidavit dated 5.1.2010 that requisition had already been made by the Government for filling up 26 Nos. vacant post of Principal in Government Colleges through MPSC and the MPSC had already issued advertisement on 21.6.2008, fixing 18.7.2008 as a last date for receipt of application forms and determination of age of the candidates. In other words, the Government is supporting the case of the petitioner to the extent that it is the 2002 Recruitment Rules, which is applicable for filling up of the vacancies of Principals in the Government Colleges which are now direct recruitment posts. There cannot be any dispute that 1981 Rules, have now been superseded by 2002 Rules, and as such, 1981 Rules do not exist for any consideration by the Court. The Government also made a categorical statement in their affidavit that the Recruitment Rules, 2002, shall be strictly adhered to at the time of appointment of Principals on regular basis. However, in paragraph-6 of the affidavit, it is averred by the Government that the R.R. of 2002 is not applicable in case of in-charge appointment of Principals, which is purely a stop-gap and temporary arrangement. Disputing this proposition of the Government, the learned Counsel for the petitioner has argued that it is impermissible for any authority, much less the Government of Manipur, to make Rule framed under Rule 309 applicable only in the matter of regular appointment and not applicable in the matter of appointment on in-charge Principal in Government Colleges. The Government has not spelt out any Rule, standing order, which could guide the Government in making appointment of Principal in Government College. The Government has not spelt out any Rule, standing order which could guide the Government for appointment of In-charge Principal in Government Colleges. It is further submitted by the learned Counsel for the petitioner that it is illegal for the Government to allow somebody who does not have the requisite qualifications prescribed in the existing Rules for the post of Principal, to work, function and discharge the duties of a Principal by ignoring the claim of the eligible and qualified candidates. It is further submitted by the learned Counsel for the petitioner that it is illegal for the Government to allow somebody who does not have the requisite qualifications prescribed in the existing Rules for the post of Principal, to work, function and discharge the duties of a Principal by ignoring the claim of the eligible and qualified candidates. In this regard, the learned Counsel for the petitioner has referred to a decision of this Court reported in 2004 GLT 808 wherein, it is held that there cannot be two sets of principle on the basis of same very set of Rules, relating to regular and temporary appointment. Similarly, there cannot be two sets of principle under the same Recruitment Rules, 2002, i.e. one for appointment on regular basis and another for In-charge appointment. The very purpose of Vice Chancellors conference followed by issuance of Regulation, framing of the extant Recruitment Rules and prescription of qualifications for appointment of Principal of Government Colleges, shall be defeated, if the prescribed qualifications is ignored without any authorisation of law and as such, this Court has no hesitation to hold that the Government cannot be permitted to allow a person, without the requisite qualifications prescribed in the relevant R.R. 2002, to work and function as Principals of a Government Colleges and that too by overlooking the claim of qualified candidates. 12. One aspect which cannot be lost sight of this Court is the hierarchy of teachers provided in the Regulations of UGC which is followed by the Manipur University as well as the Colleges affiliated to Manipur University. According to this regulation, a lecturer who fulfils the qualification prescribed for senior Lecturer can be considered for placement in the grade of senior scale Lecturer through a process of selection. A senior scale Lecturer who does not have Ph.D. degree can also be placed as Lecturer in Selection grade. However, a lecturer in the senior scale with Ph.D. Degree will become eligible for promotion to the post of Reader if the incumbent has completed 5 years of service in the senior scale. A Lecturer who has been promoted as a Reader in the manner indicated above can only be considered for appointment as Principal of Government Colleges as per 2002 Recruitment Rules. It is a settled position of law that Statutory Rules are framed for adherence and compliance, not for violation. A Lecturer who has been promoted as a Reader in the manner indicated above can only be considered for appointment as Principal of Government Colleges as per 2002 Recruitment Rules. It is a settled position of law that Statutory Rules are framed for adherence and compliance, not for violation. When there is rule framed under Article 309 for recruitment to a particular post, no person without qualification prescribed in the Rules can be appointed against the post in any capacity, either on regular or ad hoc or officiating or in-charge basis. 13. In view of the finding recorded above by this Court, the posting and transfer of respondent Nos. 4, 5 and 6 as Principal In-charge in Government Colleges are liable to be quashed as unsustainable in law. However, due to change of circumstances, which have taken place during the pendency of this writ petition, as already discussed above, no meaningful purpose will be served in quashing the impugned order dated 17.2.2009 (Annexure 13 to the writ petition) inasmuch as all the private respondents have already retired form service. However, it is made clear that no persons/teachers who do not possess the requisite qualifications prescribed in the Recruitment Rules, 2002, shall be appointed by the Government as Principal of Government Colleges either on regular basis or ad hoc or officiating or in-charge basis. Even temporary arrangement/appointment to the post of Principal should be made strictly from amongst the candidates who possess the requisite qualification prescribed in the Recruitment Rules, 2002. 14. Though the MPSC is not made a party in this case, in order to avoid further litigation arising from filling up the post of Principal in Government Colleges on In-charge basis, it is the desire of this Court that the MPSC should expedite the selection process for filling up the posts of Principal of Government Colleges for which requisition had already been made in the year 2008. Registry is directed to send a copy of this judgment and order to MPSC, through its Secretary, forthwith. 15. With the above observations and directions, this writ petition stands disposed of. No order as to costs. Petition allowed.