Madras High Court
The Governing Council Of American ... vs The State Of Tamil Nadu on 12 January, 2021
W.P.(MD)Nos.13488, 13495 and 19374 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 02.02.2022
PRONOUNCED ON: 04.02.2022
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.(MD)Nos.13488, 13495 and 19374 of 2021
and
W.M.P.(MD)Nos.10437, 10439, 10440, 10448, 10449, 10451, 12610 and
16095 of 2021
W.P.(MD)No.13488 of 2021:-
The Governing Council of American College,
represented by its Secretary,
American College Complex,
Tallakulam, Madurai. ... Petitioner
vs.
1.The State of Tamil Nadu,
represented by its Secretary,
Higher Education (H1) Department,
Fort St.George, Chennai.
2.The Regional Joint Director of Collegiate Education,
Office of the RJD, Madurai, Madurai.
3.The Madurai Kamaraj University,
represented by its Registrar,
Palkalai Nagar, Madurai.
4.R.Prabahar Vedamanickkam ... Respondents
(R4 impleaded vide order of this Court in W.M.P.(MD)No.16379 of
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2019, dated 12.01.2021)
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari to call for the records relating to
the impugned order of the respondent in G.O.Ms.No.5, Higher Education
(H1) Department, dated 11.01.2021 and quash the same as illegal.
For Petitioner :Mr.M.Ajmal Khan,
Senior Counsel
for M/s.Ajmal Associates
For R1 and R2 :Mr.Veerakathiravan
Additional Advocate General
assisted by Mr.D.Ghandiraj,
Special Government Pleader
For R3 :Mr.T.Sakthi Kumaran
For R4 :Mr.N.Vijay Narayanan
Senior Counsel
for Mr.Karuppasamy Pandian
W.P.(MD)No.13495 of 2021:-
Sadakathullah Appa College,
represented by its Secretary,
Rahmath Nagar, Tirunelveli,
Tirunelveli District. ... Petitioner
vs.
1.The State of Tamil Nadu,
represented by its Secretary,
Higher Education (H1) Department,
Fort St.George, Chennai.
2.The Regional Joint Director of Collegiate Education,
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Office of the RJD,
18, Tiruchendur Road, Murugankuruchi,
Tirunelveli. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari to call for the records relating to
the impugned order of the respondent in G.O.Ms.No.5, Higher Education
(H1) Department, dated 11.01.2021 and quash the same as illegal.
For Petitioner :Mr.M.Ajmal Khan,
Senior Counsel
for M/s.Ajmal Associates
For R1 and R2 :Mr.Veerakathiravan
Additional Advocate General
assisted by Mr.D.Ghandiraj,
Special Government Pleader
W.P.(MD)No.19374 of 2021:-
R.Prabahar Vedamanickkam ... Petitioner
vs.
1.The State of Tamil Nadu,
represented by its Secretary,
Higher Education (H1) Department,
Fort St.George, Chennai.
2.The Director of Collegiate Education,
Department of Higher Education,
Government of Tamil Nadu.
3.The Governing Council of American College,
represented by its Secretary,
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American College Complex, Tallakulam,
Madurai.
4.The Madurai Kamaraj University,
represented by its Registrar,
Palakalai Nagar, Madurai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari to call for the records relating to
the impugned order of the respondent in G.O.Ms.No.5, Higher Education
(H1) Department, dated 11.01.2021 and quash the same as illegal.
For Petitioner :Mr.N.Vijaya Narayanan
Senior Counsel
for Mr.Karuppasamy Pandian
For R1 and R2 :Mr.Veerakathiravan
Additional Advocate General
assisted by Mr.D.Ghandiraj,
Special Government Pleader
For R3 :Mr.M.Ajmal Khan
Senior Counsel
for M/s.Ajmal Associates
For R4 :Mr.T.Sakthi Kumaran
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COMMONORDER
The common issue raised in the above three Writ Petitions is with
respect to the applicability or enforcement of G.O.Ms.No.5, Higher
Education (H1) Department, dated 11.01.2021 of the first
respondent/State of Tamil Nadu represented by its Secretary, Higher
Education (H1) Department, Chennai, on the petitioners in W.P.(MD)No.
13488 of 2021 and W.P.(MD)No.13495 of 2021 with specific reference
to the regulation imposed on the tenure of the respective College
Principals.
2.The petitioner in W.P.(MD)No.13488 of 2021, is the American
College, Madurai and the petitioner in W.P.(MD)No.13495 of 2021, is
Sadakathullah Appa College, Tirunelveli. G.O.Ms.No.5, Higher
Education (H1) Department, dated 11.01.2021 had been passed by the
Government of Tamil Nadu directing adoption with some modifications
of the Regulation on Minimum Qualification for appointment of Teachers
and Other Academic Staff in Universities and Colleges and Measures for
the Maintenance and Standards in Higher Education, 2018 notified by the
University Grants Commission (UGC) on 18.07.2018.
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3.The Writ Petitioners in W.P(MD)No.13488 of 2021 and
W.P.(MD)No.13495 of 2021 have raised contentions assailing
G.O.Ms.No.5, whereas, the Writ Petitioner in W.P.(MD)No.19374 of
2021 had called upon the contesting respondents thereon to act in
accordance with G.O.Ms.No.5 and had sought a Mandamus to be issued
accordingly.
Brief facts:-
4.The petitioner in W.P.(MD)No.13488 of 2021, the American
College is a minority educational institution and the Writ had been filed
by the Governing Council represented by the Secretary, who, as a matter
of fact, is also the Principal of the College. The College had been
established in the year 1881 by Christian Missionaries/the American
Mission and is affiliated to the third respondent/Madurai Kamaraj
University. It is recognised as a minority educational institution by the
Government of Tamil Nadu. It has hallowed past. It is the belief of the
Governing Council that to maintain standards expected, a right has been
guaranteed under the Constitution that there would not be direct or
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indirect interference with the administration of the College by any means
whatsoever. The Writ Petition has been filed seeking to preserve such
right and its autonomy to administer the College in the standards
expected to be maintained.
5.The petitioner in W.P.(MD)No.13495 of 2021, Sadakathullah
Appa College, is a religious minority educational institution established
and administered by Sadakathullah Educational Society registered under
the Societies Registration Act, 1860 (Act 21 of 1860). The College had
been recognised by the Government of Tamil Nadu as a minority
institution. It is claimed that the College caters to the higher education of
the poor and rural students in Tirunelveli and adjoining districts. It offers
graduate, post graduate, doctorate and research level programmes. It is
affiliated to Manonmaniam Sundaranar University.
6.Both the Writ Petitioners are deeply aggrieved by a particular
clause in the Regulation of UGC and in G.O.Ms.No.5 prescribing
minimum qualifications for appointment of Teachers and other academic
staff and measures for maintenance of standards in higher education.
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The two Writ Petitioners have taken umbrage over the clause relating to
the College Principal, not with respect to the eligibility criteria, but with
respect to the tenure to which the Principal can hold office.
7.The Principal of the American College had been appointed on
28.10.2011. He is still functioning as Principal. The Principal of
Sadakathullah Appa College had been appointed as Principal on
25.05.2011 and is so functioning as on date.
8.When things stood thus, the tenure of both the Principals came to
be seriously jeopardized by the notification of the UGC which prescribed
that a College Principal shall be appointed for an initial period of five
years and which term can be extended for another period of five years on
the basis of performance assessed by a Committee appointed by the
respective Universities and that, after the completion of the said term of
maximum of ten years, the incumbent will have to be appointed back to
the parent organisation with the designation as Professor and in the cadre
of Professor.
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9.This notification of the UGC has been claimed to have been
taken on board by the State of Tamil Nadu by an Executive Order in
G.O.Ms.No.5, Higher Education (H1) Department, dated 11.01.2021.
This naturally meant that as on date of the filing of Writ Petitions or
atleast as on date, the two Principals apprehended that have far outrun
the term which they can hold, namely, ten years. Claiming that this
curtailment of their tenure was a direct infringement of the right of a
minority institution to administer, the two Writ Petitions have been filed
seeking interference with that particular clause in the
notification/Government Order relating to the tenure of a Principal of the
College.
10.W.P.(MD)No.19374 of 2021 had been filed by an Associate
Professor in the Department of Tamil, the American College, Madurai, in
the nature of a Mandamus seeking a direction to the third respondent
therein/Governing Council of the American College to consider a
representation, dated 29.05.2021 given by him and consequently, to
direct the said third respondent to invite applications for the post of
Principal and fill the same in accordance with G.O.Ms.No.5, Higher
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Education (H1) Department, dated 11.01.2021, by which Government
Order, the UGC Notification, dated 18.07.2018 had been adopted by the
Government of Tamil Nadu. The petitioner lays a claim for the post of
Principal of the American College and is frustrated by the continuation of
the present Principal beyond the period of ten years, even though by the
aforesaid Government Order, the tenure was restricted to ten years.
11.W.M.P.(MD)No.12610 of 2021 had been filed by a third party
who seeks to implead himself as respondent to W.P.(MD)No.13488 of
2021 and claims that he should also be heard in view of his erstwhile
position as Professor in the Department of Zoology in the American
College. He claims that the stipulation of a maximum period of ten years
in the post of Principal would serve the ends of justice and would
improve the quality of higher education.
The Contentions raised in W.P(MD)No.13488 of 2021 and
13495 of 2021:-
12.The Writ Petitioners contend that every minority educational
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institution is entitled to protection under Article 30(1) of the Constitution
of India which guarantees a right to establish and administer the said
institution free from State interference. They claimed that the rights
guaranteed include:
(i)the right to choose a Governing Body to conduct the affairs of
the institution to manage the institution;
(ii)the right to appoint Teaching staff, particularly, the
Principal/Head of Academic Staff as well as non-teaching staff and to
take disciplinary action against the said persons/employees;
(iii)the right to admit eligible students of their choice and to set up
a reasonable fee structure
iv)the right to use the properties and assets of the institution to its
benefit.
13.They also claim that this right to establish and administer an
institution had been the subject matter of interpretation by various
judicial pronouncements and had been upheld and recognised. It had
been stated that a Principal was the fulcrum of any educational institution
and therefore, appointment and determination of tenure should be vested
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only with the educational institution and there should not be any
interference. This right was to maintain the philosophy and the objects
of minority institutions.
14.It had been claimed that though Section 26 of the University
Grants Commission Act, 1956, empowers stipulating regulations, such
regulations have to be approved by the Parliament. The consequence of a
University not complying with any of the regulation stipulated is to
withhold the grants, as provided under Section 14 of the Act. It had also
been contended that the UGC Regulations are only directory for
Universities, Colleges and other higher education institutions established
under State legislations and would not be applicable if the regulations are
not adopted by the State Government by amending the related State
legislations in tune with the regulations.
15.It is further contended that the Universities will have to suitably
amend its regulations to incorporate the regulation of the UGC
Regulation. It is claimed that the UGC Regulation aforementioned, dated
18.11.2018 had been adopted by the State Government by passing an
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Executive Order and not by introducing a legislation adopting such
regulation. It had also been stated that the two Universities, namely,
Madurai Kamaraj University and Manonmaniam Sundaranar University
have also not amended their respective statutes permitting adoption of
the Government Order passed by the State Government.
16.A doubt had therefore been cast over the applicability of the
regulations to the two Writ Petition Colleges. It had therefore been stated
that the UGC Regulations 2018 would not be applicable to the American
College, Madurai and to the Sadakathulla Appa College, Tirunelveli. It
had also been stated that in view of the fact that the aforementioned two
Colleges are minority educational institutions, the protection guaranteed
under Article 30(1) of Constitution of India is sacrosanct and the rights
guaranteed under Constitution cannot be frustrated by an Executive
Order of the State Government. This would amount to serious
infringement of the right of the educational institution to administer the
College in accordance with their principles. It had been repeatedly
contended that the curtailment of the tenure of the Principal and more
particularly, introducing third party assessment of the Principal after a
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period of five years are direct violations of the rights guaranteed under
the Constitution of India.
17.It had therefore been stated that G.O.Ms.No.5, Higher
Education (H1) Department, dated 11.01.2021, should be struck down by
this Court insofar as the clause determining the tenure of Principal of the
two Colleges are concerned.
Contentions of the State Government/Universities:-
18.The Government had issued G.O.Ms.No.5, Higher Education
(H1) Department, dated 11.01.2021, to adopt the UGC Regulations 2018
and thereby, making it obligatory on Universities within the State of
Tamil Nadu to fall in line with such regulations. This would naturally
imply that the Colleges affiliated with the Universities should also have
to necessarily adhere to the regulations introduced.
19.The petitioners being aided minority institutions protest such
infringement of their fundamental right as guaranteed under Article 30(1)
of Constitution of India, they question the restrictions placed on the
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tenure of a Principal of a minority institution.
20.It is the contention of the State Government that necessary
precautions have been taken to preserve the identity of the minority
status and as a matter of fact, more ample space has been given to the
minority institutions for including members of various grades to
participate in the selection of a Principal. It is therefore stated that the
minority institutions need not have any apprehension that their right to
select a Principal of their choice had been interfered with. It had been
stated that the selection of a Principal has to be on a broad based
opinioned procedure and the Government Order provides for such a
procedure to be put in place. There was no restriction on the right of the
minorities, but the existing right was only being regulated with an
intention to bringing about quality and merit.
21.It is also the contention of the Government that the post of a
Principal had been recognised in various judgments of the Honourable
Supreme Court to be the fulcrum in any educational institution and
therefore, much care had been taken for selection or appointment of a
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particular individual as a Principal which is done only after examination
of the credentials with wide participation of the College
Council/Society/Trust.
22.The further aspect is that the Principal, if he/she completes the
period of five years, then an assessment is done regarding his/her
suitability to continue for a further period of five years. This is one of
the stipulations of the UGC Regulations 2018, which had been
introduced only to enhance the performance and the standard of every
educational institution. Such object is inbuilt in the Universities Grants
Commission Act, 1956, which is an Act passed by the Parliament.
Higher education is very important and to provide quality higher
education, a Principal of a College must be beyond reproach. His/her
ability would flow down to the Teachers and finally, to the students.
23.It is the further contention of the State Government that it was
only after due deliberation, G.O.Ms.No.5, Higher Education (H1)
Department, dated 11.01.2021, had been passed adopting the UGC
Regulations 2018 to be put in effect by Universities/Colleges/Institutions
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in the State of Tamil Nadu.
24.Madurai Kamaraj University for their part also contended that
their Syndicate had adopted the implementation of the various guidelines
and regulations given in G.O.Ms.No.5, dated 11.01.2021, by passing
necessary resolution, which would naturally indicate that they also
adopted the UGC Regulation 2018. It had been further stated that as
affiliated College, the petitioner/the American College will have to
adhere to such guidelines and there is no restriction on the fundamental
right, but there was only a regulation of the manner in which such
fundamental right is exercised. There was no involvement into the
administration of the institution.
25.It is the further contention that the Principal-elect, who is
thought to be fit to administer has to pass through certain assessments
and it was these assessments which have been introduced. It had also
been contended that a Principal of minority institution and Principal of
any other College should stand on the same footing and there can be no
discrimination or difference in the eligibility criteria of the two Principals
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of two separate Colleges. It had been contended that these Writ Petitions
are misconceived and should not be considered by this Court.
Contentions of the petitioner in W.P.(MD)No.19374 of 2021:-
26.The petitioner is also a respondent in W.P.(MD)No.13488 of
2021. He can be termed as a groom in waiting. He had nursed legitimate
expectation that the term of the Principal would, at some point of time
come to an end by efflux of time, and his expectation was heightened
with the introduction of UGC Regulation 2018, which restricted the
tenure to a period of maximum ten years. The however Principal had
filed the Writ Petition holding that such restriction is violative of Article
30(1) of Constitution of India which provides a fundamental right to a
minority institution and this petitioner is caught in a catch 22 situation.
He owes allegiance to the minority institution but he also owes allegiance
to ensure that the standard of the institution does not fall, owing to the
clinging to a post by a particular individual. Such clinging would only
lead to stagnation in the thought process and innovation would be the
sufferer.
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27.It is his contention that there has been no infringement in the
selection process of the Principal, but reasonable assessment has been
contemplated at the end of five years. It is his contention that such
regulation having been adopted by the State Government and in turn by
the Syndicate of the Madurai Kamaraj University should be made
applicable to the American College and there should be no discrimination
among Colleges, because, the aim of these regulations is only to upgrade
the existing merit of such Colleges.
28.W.M.P.(MD)No.12610 of 2021 in W.P.(MD)No.13488 of 2021,
had been filed seeking to implead a former Professor as a respondent in
that Writ Petition. He had also raised contentions that the UGC
guidelines should be adopted by the American College owing to the fact
that it only regulates the post of Principal. There is a freedom to the
institution to appoint a particular individual as a Principal, but it is only
just that the said individual is so appointed after he comes through a
particular process of evaluation credentials. It is the contention of the
said retired Professor that the tenure being restricted to ten years is
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reasonable and that the Writ Petitions filed by the Colleges should be
dismissed.
The Arguments:-
29.Substantiating the aforementioned contentions, arguments were
advanced and I must state that it was with much pleasure that I heard
sagacious arguments advanced by Mr.M.Ajmal Khan, learned Senior
Counsel for the petitioners in W.P.(MD)Nos.13488 and 13495 of 2021,
Mr.N.Vijay Narayanan, learned Senior Counsel for the petitioner in W.P.
(MD)No.19374 of 2021, Mr.Veerakathiravan, learned Additional
Advocate General, assisted by Mr.D.Ghandiraj, learned Special
Government Pleader appearing for the State Government, Mr.T.Sakthi
Kumaran, learned Counsel for the second respondent in W.P.(MD)No.
13488 of 2021 and the fourth respondent in W.P.(MD)No.13495 of
2021/Madurai Kamaraj University and Mr.Lajapathi Roy, learned
Counsel for the petitioner in W.M.P.(MD)No.12610 of 2021 in W.P.
(MD)No.13488 of 2021.
30.Mr.M.Ajmal Khan, learned Senior Counsel for the petitioners in
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W.P.(MD)No.13488 and 13495 of 2021 pointed out the Regulations 2018
of UGC and stated that there was an inbuilt condition which required that
within the stipulated period as mentioned therein, the State Government
should bring a legislation adopting the said regulation. The learned
Senior Counsel stated that thereafter, it was obligatory on the part of the
Universities within the particular State to suitably amend the enactments
governing them and it was emphasized that these procedures should be
followed for the regulations to be adopted in letter and spirit and to be
applied to the Colleges affiliated to the Universities within a particular
State.
31.The learned Senior Counsel pointed that a similar regulation
had been introduced by the UGC in the year 2010 and thereafter,
appointment of a Vice Chancellor to the Madurai Kamaraj University of
a Professor, Kalyani Mathivanan, was challenged before this Court by
filing a Writ of Quo Warranto. The Division Bench held that since the
regulations had not been adopted in manner prescribed, the appointment
of the said individual as Vice Chancellor, could not be sustained and the
Writ Petition was allowed. This dictum had been upheld by the
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Honourable Supreme Court.
32.The learned Senior Counsel stated that in the present case, the
State Government had only passed an Executive Order, namely,
G.O.Ms.No.5, Higher Education (H1) Department, dated 11.01.2021 and
the learned Senior Counsel very seriously questioned the legality of such
an act when a legislation was required to be passed. The learned Senior
Counsel also pointed that Madurai Kamaraj University had also not
brought about suitable amendment by incorporating the regulations, but
that the Syndicate had only passed a resolution adopting the legislation.
It was therefore urged that this Court should hold that G.O.Ms.No.5,
Higher Education (H1) Department, dated 11.01.2021 cannot be thrust
upon Colleges in view of lack of legality surrounding the said Executive
Order.
33.It was thereafter primarily and very strongly stressed by the
learned Senior Counsel that the very regulation and the consequential
Government Order passed, even if it is to be accepted that an Executive
Order would be sufficient, cannot and should not be applied to minority
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institution. The learned Senior Counsel also pointed out Article 30(1) of
Constitution of India and stated that the right guaranteed under the said
Article is not subject to any restriction or even regulation. It was a right
guaranteed to be enjoyed by the minority institution and there should not
be any interference with the same.
34.The learned Senior Counsel pointed out that among other rights
guaranteed to minority institutions is the right to administer and this
would include the right to appoint persons who are to so administer the
institutions. It would also as a corollary, include the right to continue
such appointees in service for the tenure which the institution deems to
the best advantage of the institution. There cannot be any restriction on
the tenure. The learned Senior Counsel also stated that the qualification
required is not questioned by the minority institution, but stated that the
right to select a particular individual must rest only with the Governing
Council or College Committee of the minority institution and that there
cannot be any interference either directly or indirectly in such selection
process by any third party or by any third party process. Thereafter, if the
College Committee or the Governing Council is of the opinion that, if the
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service of the appointed individual is to be interfered, then, they alone
should have such decision making authority and there cannot be a review
of such selection at any period of time or as prescribed under the UGC
guidelines after five years.
35.It was pointed out that such review was by external agencies
and this was a direct intrusion into the right of the minority institution to
take an independent decision to continue in service the Principal till they
feel competent to do so. The assessment at the end of five years by a
third party who may or may not have the welfare of minority institutions
at heart would certainly affect the right to administer the institution,
which is guaranteed under the Constitution. Thereafter, fixing the tenure
at ten years and limiting such tenure to that particular period and directly
interfere with the further continuation of the said individual would once
again be an assault on the independence of minority institution to
administer the College and which administration would include
appointment and retention as Principal of the College, a particular
individual in whom they have confidence. It was therefore pointed out
that the State Government, by introducing the Government Order, which
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is impugned in the Writ Petition had erred in all aspects while adopting
the UGC guidelines with respect to the tenure of a Principal by limiting
the tenure to five years in the first instance and thereafter, placing a
necessity to assess the performance on the basis of criteria which could
be totally alien to the believes of minority institution. This would also
indirectly play upon the thought process of such Principal who to pass
such assessment might, either voluntarily or involuntarily for sake some
of the ideas which are required to administer the minority institution.
36.It was further emphasized that if the tenures were to be
curtailed at ten years, then the institution would loose out on the
experience which the Principal had gained over the past ten years and a
wrong incumbent, might not be in a position to take the institution
forward as would have been expected by an experienced Principal. The
learned Senior Counsel also pointed out that insofar as the Tamil Nadu
Private Colleges (Regulation) Act, 1976, is concerned, it is an Act which
had been approved by the Parliament and when there are provisions
governing the appointment of a Principal and the tenure of a Principal in
that particular legislation, then it cannot be overridden by passing an
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Executive Order in G.O.Ms.No.5. The conditions of service have been
given in the said enactment.
37.The learned Senior Counsel pointed out that Article 254 of the
Constitution of India is pressed into service when there is conflict
between the State legislation and the Central legislation. It was reiterated
that the State Government had not brought in any amending legislation,
but had only passed an Executive Order. The learned Senior Counsel
also pointed out that the Madurai Kamaraj University is also governed by
an Act of the year 1965 and the provision of that Act had also not been
amended in accordance with the regulation.
38.The learned Senior Counsel also pointed out that the contention
of the respondents that the Writ Petitioner in W.P.(MD)No.19374 of 2021
is waiting in the wings cannot be a legal argument, since a junior should
give way to a senior so long as competency is the criteria. The learned
Senior Counsel therefore urged that this Court should protect the rights
and interests of the minority institution whose rights have been
guaranteed under the Constitution and hold that G.O.Ms.No.5, dated
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11.01.2021 is not applicable with respect to the limitations provided
regarding Principals of the minority institutions.
39.Mr.Veerakathiran, learned Additional Advocate General pointed
out that the role of a Principal had been discussed by the Honourable
Supreme Court in their pronouncements and stated that the institution's
independence is being retained and there is no intrusion into the
Governing Council or in the Committee. The learned Additional
Advocate General stated that the qualifications required to be considered
for appointment of a Principal has to be uniform for all Colleges as
otherwise, it would lead to a situation where a person who is qualified to
be a Principal in one College would be unqualified to be even considered
by any other College at some point of time particularly, when the object
is to impart education. There must be equal standards and on that
particular ground, it cannot be viewed as a minority or a non minority
institution. The focus of the amendment is providing better education for
the students who come to study in the College. For that purpose, the
Principal who is the nucleus and fulcrum around which any educational
institution revolves will necessarily have to have some basic and
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fundamental qualifications and before appointment as Principal, there has
to be an uniform testing criteria to be in place, which are minority or non
minority institution. The test is on the individual and not on the
institution as such.
40.It was also pointed by the learned Additional Advocate General
that during the selection process, ample leverage has been given to
include the members of the minority institution at various levels to
participate in the selection process and therefore, without their consent
and without their opinion being considered, nobody can be appointed as
Principal. The right of the minority institution to administer is
recognised and it is only a participative procedures, where the College
would also benefit by having a competent person as a Principal. It is
only to the advantage of the College and there was no intention of the
State Government to intrude into any right enjoyed by the minority
institution.
41.The learned Additional Advocate General also pointed out that
the only right guaranteed under Article 30(1) of the Constitution was to
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establish and administer education institutions. The Government had not
interfered with the establishment of the minority institution. By way of
this Government Order, there is also no interference with respect to the
administration of the minority institution. As an institution, there was
only a regulation regarding the appointment of the Principal and the
assessment of the Principal at the end of five years and putting a cap on
the term to hold the post of Principal. A further five years, a reasonable
length of time of ten years have been given for any individual, who is
selected as Principal.
42.It is also the contention of the learned Additional Advocate
General that thereafter the individual is to serve as a Professor and his
opportunity to later became Vice Chancellor of a University is still
retained. The learned Additional Advocate General stated that there is no
other intention of the State Government, but to ensure that the
educational quality improves. The object was only to ensure academic
excellence. It was also pointed out that the State Government is directly
providing funds for aided Colleges. They have then prescribed these
conditions in accordance with the UGC guidelines and therefore, no fault
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can be found by the petitioners in the Government Order adopting the
guidelines.
43.Mr.T.Sakthi Kumar, learned Standing Counsel for the Madurai
Kamaraj University stated that the Syndicate of the University had also
passed a resolution adopting the terms of G.O.Ms.No.5, Higher
Education (H1) Department, dated 11.01.2021. The learned Counsel also
pointed that the Syndicate by its resolution had also adopted the
aforementioned UGC regulations. The learned Counsel then stated that
the Writ Petitioners cannot enjoy unlimited period of service and there
reasonable restriction to their service conditions and regulations must put
in place. It had been pointed that the UGC Regulations 2018 had been
passed or adopted by the UGC only after deep study and therefore the
learned Counsel stated that the contentions of the Writ Petitioners are
mischievous and has to be rejected by this Court.
44.Mr.N.Vijay Narayanan, learned Senior Counsel appearing on
behalf of the petitioner in W.P.(MD)No.19374 of 2021 pointed out that
the entire issues revolve around the following aspects:
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i)The effect of regulation now introduced on Article 30(1) of the
Constitution and whether it restricts or regulates in larger public interest
of the higher education of the State.
ii)The effect of Private Colleges (Regulation) Act, 1976.
iii)The right of UGC to make regulation under the UGC Act with
respect to entry 66 in List I relating to higher education and whether it is
only the Parliament that can bring in such regulations.
iv)The post of Principal and its importance in every Government
institution which is alone examined and it was pointed out by the learned
Senior Counsel that the most crucial post in any College is the Principal
and it was only natural that some regulations are put in place. The
learned Senior also pointed that even though the petitioners claim that
they are appointed in the year 2011 and the regulations were introduced
in the year 2018 and it was not applicable to them is not a correct
approach. He stated that every quasi-judicial order or an administration
order, they may not be retrospective in nature, but will still have a retro-
active effect. It would be applicable to the date when it should have been
made applicable on any individual whose continues to be service in
respect of such introduction or amendment. The learned Senior Counsel
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pointed out that the Writ Petitioners had completed the tenure of ten
years and have to be automatically terminated and a fresh selection of a
Principal will have to be done by the two respective Colleges.
45.The learned Senior Counsel then stated that the Writ Petitioners
have only questioned G.O.Ms.No.5, dated 11.01.2021 and that for
reasons best known to them, they have not questioned or challenged the
UGC Regulations, 2018 and unless that is challenged, the petitioners
cannot be granted any relief.
46.The learned Senior Counsel also relied upon the judgments of
the Honourable Supreme Court and stated that the restriction or
regulation is only for the benefit of the College. He stated that if a new
Principal comes in, there could be innovative ideas projected and fresh
solutions obtained. This would not be possible if a Principal has the
impression that he can continue to be Principal till he attains the age of
superannuation and naturally, there is always a possibility of stagnation
occuring in the minds of such Principal.
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47.It was also pointed out that it had been held even earlier by this
Court that the UGC guidelines are binding on the State Government and
grant in aid colleges. There was also a necessity that all States should
adopt the enactments and the regulations thereon. The learned Senior
Counsel also pointed out that G.O.Ms.No.5 was a practical and exact
replica of the UGC guidelines. It had been pointed out that the Rules
have been tweaked to give necessary representations to the institution
and their representatives to be part of a selection committee.
48.The learned Senior Counsel also pointed out the provisions of
Private Colleges (Regulation) Act and stated that the Rules are silent as
to how merit can be assessed. The UGC regulations provide regulations
to assess the merit thereby filling any gap left out by the rules of the
Private Colleges (Regulation) Act. It was stated that fresh blood can be
introduced and effective of innovative ideas, it would surface the
advantage of the institution. He also stated that there cannot be a vested
right to continue. Law fixes a retirement age and that age is not
interfered with. However, only the tenure of the post held during the
period of service, which alone was regulated and therefore, the right of
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the individual is certainly protected. There is no invasion in any official
discharge of the duties.
49.The learned Senior Counsel drew an with the Payment of
Gratuity Act, which was introduced in the year 1972, an pointed out that
if any employee, who had put in 30 years of service retires on the next
year, after the introduction of the said Act, he would still get the benefit
of 30 years of employment. The past period is considered. Similarly, in
the reverse context, if the tenure was for ten years, then advantage cannot
be taken of the fact that merely because, the petitioner had been
appointed in the year 2011 and the regulation had been introduced in the
year 2018 and that the Government Order had issued in the year 2021,
they would not be applicable to them and that they can continue further
till they attain the age of superannuation irrespective of the fact that the
Government Order fixed a tenure of ten years governing the Principal.
50.The learned Senior Counsel further pointed out that the
regulations are only for the benefit of a minority institution and
wondered as to the prejudice, that would be caused to them since it is
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only efficiency and competency, which are examined to hold the post and
certainly, the institution as such, and this examination of the efficiency of
a Principal, would only benefit the students which would in turn reflect
upon the administration of the College. Therefore, it was pointed out
that it was win-win situation for the Principal and the students.
51.Mr.Lajapathi Roy, learned Counsel for the petitioner who had
filed the impleading application in W.M.P.(MD)No.12610 of 2021 also
advanced arguments and this Court specifically stated that a platform to
grind personal grievances is not provided and that the learned Counsel
can advance arguments on the issues raised.
52.The learned Counsel pointed out that the Hon'ble Supreme
Court had passed another judgment, wherein, they had examined the
existing right and compared that with the vested right. It was pointed out
by the learned Counsel that Thiyagaraja Committee was not brought to
the notice of the Division Bench of Bombay High Court which had
struck down the UGC guidelines.
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53.The learned Counsel pointed out that there were four rights
guaranteed, namely, to choose the Governing Body, to choose the
Teachers, to admit eligible students and to use the properties, which are
alone guaranteed for minority institution and these rights are certainly
not interfered with. It was pointed out that the conditions of service as
provided, namely, ten years is common and applicable to minority and
non minority institutions and it would be extremely unfair for a minority
institution to claim that they stand out and seek exemption from such
guidelines given for upgrading their own institution. There could be a
danger of them failing the assessment test of the institution itself, if their
Principal is found wanting owing to periodic assessment not having been
done, as stipulated by the UGC guidelines. The learned Counsel
therefore stated that the Writ Petitions should be dismissed.
54.Mr.M.Ajmal Khan, learned Senior Counsel in his reply
arguments once again pointed out that the regulations are not challenged,
but the Government Order was alone challenged because the regulations
do not become applicable to the State or the University or the College.
They become applicable only when the State Government adopts them
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and such adoption should be by way of introducing a legislation. Here,
since an Executive order has been passed in G.O.Ms.No.5, the petitioners
have questioned only the Government Order, which is made applicable to
them. It might have drawn its source from the UGC guidelines, but there
had been some modifications made and the Government had passed
G.O.Ms.No.5 and therefore, the petitioners are well within the rights to
question only the Government Order.
55.The learned Senior Counsel also pointed out that the Tamil
Nadu Private Colleges (Regulation) Act, 1976, is exclusive to Colleges in
Tamil Nadu and that when that legislation is in force and which
legislation has been approved by the Parliament, introducing a
Government Order directly re-examining the provisions of the said
legislation, cannot be countenanced and has to be set aside. The learned
Senior Counsel also reemphasized the fact that the Madurai Kamaraj
University Act, 1965 had not been amended and only a resolution had
been passed by a Syndicate and wondered as to its applicability to any
College, much less the petitioner College. The learned Senior Counsel
therefore reiterated that the Writ Petitions should be allowed.
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56.The learned Additional Advocate General in his reply pointed
out that the subject matter of the Writ Petitions is only the tenure of the
Principal and not the right or the method in which the Principal is to be
appointed. Insofar the condition of service is concerned, it was stressed
by the learned Additional Advocate General that there cannot be any
different yardstick for minority or non minority institution. If the age of
superannuation is sixty years, it is sixty years for every Professor and that
it cannot be claimed that the service should be extended beyond the
period of sixty years merely because he is functioning in a minority
institution. The learned Additional Advocate General also pointed out
that the regulations are not challenged and the UGC which is the
competent authority had not been made a respondent in the Writ
Petitions. The learned Additional Advocate General insisted that the Writ
Petitions should be dismissed.
57.Mr.T.Sakthi Kumar, learned Standing Counsel for the Madurai
Kamaraj University in his reply arguments stated that the tenure of a
Principal is only being regulated and the service conditions have been
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specified in the regulations and the learned Counsel stated that the
Syndicate had properly adopted the Government Order to put in effect
the regulation of UGC 2018 to be followed by every College across its
domain. The learned Counsel also stated that it would only be
appropriate that the petitioner College also confirms to the same, since it
is only to their benefit. It was once again urged that the Writ Petitions
should be dismissed.
58.Mr.Lajapathi Roy, learned Counsel also sought permission to
argue again in rejoinder. He pointed out that the petitioners have not
actually questioned the selection process, but only the tenure of ten years.
The learned Counsel stated that the Principal can always return back as
Professor and is certainly not degraded. It was pointed out that the
institution will never be headless.
Discussion, Analysis and Determination:-
59.I have carefully considered the arguments and perused the
materials on record. Even before I commence, it must be pointed out that
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the learned Additional Advocate General, learned Senior Counsels and
the Counsel who had argued had relied upon precedents and I have only
narrated the facts as stated in the arguments.
60.Let me start from the very beginning.
61.The University Grants Commission Act, 1956 (Act 3 of 1956)
had received the assent of the President of India on 03.03.1956 and had
been published in the gazette of India, Extraordinary, Part-II, Section 1
Page No.423, dated 03.03.1956. The Act provides for the co-ordination
and determination of standards in Universities and for that purpose, to
establish a University Grants Commission.
62.Under the statement of objects and reasons, it had been stated
that the University Grants Commission would be a corporate body acting
as an expert body with power to recommend measures necessary for the
reforms and improvement of University education. This would meant
that the University Grants Commission will also have the power to cause
an inspection or enquiry to be made on any University established by law
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in India.
63.Section 2(f) defines “University”, which as follows:
“2.Definitions :
(f)University” means a University established or
incorporated by or under a Central Act, a Provincial Act or a
State Act, and includes any such institution as may, in
consultation with the University concerned, be recognised by the
Commission in accordance with with the regulations made in this
behalf under this Act.”
64.Section 14 of University Grants Commission Act, 1956 is as
follows:
“14. Consequences of failure of Universities to comply
with recommendations of the Commission.—If any
University 11[grants affiliation in respect of any course of study
to any college referred to in sub-section (5) of Section 12-A in
contravention of the provisions of that sub-section or] fails within
a reasonable time to comply with any recommendation made by
the Commission under Section 12 or Section 13 12[or
contravenes the provisions of any rule made under clause (f) or
clause (g) of sub-section (2) of Section 25, or of any regulation
made under clause (e) of clause (f) or clause (g) of Section 26,],
the Commission, after taking into consideration the cause, if any,
shown by the University 13[for such failure or contravention,],
may withhold from the University the grants proposed to be made
out of the Fund of the Commission.”
65.Section 26 of the Act deals with powers to make regulation and
Section 26(1)(e) and (g) are as follows:
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“26.Power to make regulations: (1).....
(e) defining the qualifications that should ordinarily be
required of any person to be appointed to the teaching staff of the
University, having regard to the branch of education in which he
is expected to give instruction;
......
(g) regulating the maintenance of standards and the co-
ordination of work or facilities in Universities.
66.It is seen from the above that UGC has the power to make
regulations with respect to the qualification of any person to be
appointed as teaching staff and to regulate the maintenance of standards
in Universities. This would naturally mean that they also have the power
to refix or re-examine the qualifications which had been determined in
accordance with the needs of University education. Under Section 14, if
any University contravenes any regulations made under Clause (e) or
Clause (g) of Section 26 referred to supra, then grants proposed to be
made to the University may be withheld.
67.In exercise of the power under Section 26(e) and (g) of
University Grants Commission, 1956, r/w Section 14, the UGC had
introduced regulations in the year 2018 called “UGC Regulation 2018,
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dated 18.07.2018 on Minimum Qualification for appointment of Teachers
and Other Academic Staff in Universities and Colleges and Measures for
the Maintenance and Standards in Higher Education, 2018”. These
regulations had obtained the assent of the Parliament and have been
published in the Gazette of India, Extraordinary, Part III, Section 4, dated
18.07.2018. In the regulation, it had been stated as follows:
“1.2 These shall apply to every University established or
incorporated by or under a Central Act, Provincial Act or a State
Act, every Institution including a Constituent or an affiliated
College recognized by the Commission, in consultation with the
University concerned under Clause (i) of Section 2 of the
University Grants Commission Act, 1956 and every Institution
deemed to be a University under Section 3 of the said Act.
1.3 These shall come into force from the date of
notification.”
68.The regulation included determining and fixing the minimum
qualification for the post of Professors, Associate Professor and Teachers
and other academic staff in Universities, Colleges and also the revision
of pay scales. It was further stated as follows:
1.2 Every university or institution deemed to be University,
as the case may be, shall as soon as may be, but not later than
within six months of the coming into force of these Regulations,
take effective steps for the amendment of the statutes, ordinances
or other statutory provisions governing it, so as to bring the same
in accordance with these Regulations.
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69.It is thus seen that every University should within the period of
six months of the coming into force of the regulations, take effective
steps for amendment of the statutes governing the State University. As
stated, the regulation came into effect on and from 18.07.2018. This
implied that the Universities should have brought in amendment to their
respective statutes on or before 18.01.2019.
70.The Universities concerned in the instant Writ Petitions,
namely, Madurai Kamaraj University and Manonmaniam Sundaranar
University have not till this date brought in necessary amendment to their
statutes, namely, Madurai Kamaran University Act 1965 (Tamil Nadu Act
33 of 1965) and Manonmaniam Sundaranar University Act, 1990 (Act 3
of 1990).
71.It must be straightaway mentioned that very dishearteningly and
I hope without any mala fide intention, the petitioner in W.P.(MD)No.
13495 of 2021 had not even impleaded the University governing the said
Writ Petitioner, namely, Manonmaniam Sundaranar University. Still
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worse, both the Writ Petitioners have not impleaded the UGC as
respondent. This is significant because, the fact that both the
Universities have not brought in amendment to their statutes would have
stood exposed before the UGC, if the said UGC has been made as
respondent to these Writ Petitions. This gives an impression that
probably the petitioner Colleges also do not want to stand exposed before
the UGC.
72.A perusal of the MKU Act, 1965, shows that Section 14, gives
the authorities of the of the University. A similar provision is in Section
16 of the MSU Act, 1990. In both the provisions aforementioned, the
authorities included the Senate and the Syndicate. The composition of
the Senate and Syndicate had also been given.
73.Under Section 17 of MKU Act, 1965, the powers of the Senate
included to make an amendment or repeal the same. A similar power had
been given to the Syndicate in Section 24 of the MSU Act, 1990.
74.Thus, both the legislations contain unbuilt provision to bring
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about the necessary amendments to their statute and more particularly,
since they are Universities as defined under the UGC Act 1956, there was
a compulsion on them to bring about necessary amendments to their
statutes and to ensure that the statutes are in accordance with UGC
Regulation 2018. Both the Universities had not done.
75.The learned Standing Counsel for the Madurai Kamraaj
University provided a small input stating that the Syndicate had approved
G.O.Ms.No.5, dated 11.01.2021. Such approval will not and cannot be
termed as an amendment to the statute, which was what prescribed by the
UGC regulation, 2018.
76.It is thus clear that both the Universities have deliberately
avoided bringing into effect the UGC regulation 2018. The syndicate
which had passed such a resolution consists of Vice Chancellor and
Secretaries of Education Department, Health and Welfare Department,
Law Department and Directors of Higher Education, Technical
Education and Medical Education and Legal Studies. There are also
other members. The details of the dates, when the Syndicate convened
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the meeting and the number of members who actually attended the
meeting and the resolution passed have not been furnished to the Court.
It has also not been disclosed whether there was any effective
deliberation with respect to the applicability of these regulations to
minority institution coming under the said University and particularly in
view of the right guaranteed under Article 30(1) of Constitution of India
to minority institution to administer their institutions without any
interference. It is therefore seen that both the Universities have failed to
perform their statutory obligation. I wonder how they will react if grants
are withheld by the UGC for failing to amend the statutes as directed
under UGC Regulations 2018.
77.For good measure, the Government had passed an Executive
Order in G.O.Ms.No.5, Higher Education (H1) Department, dated
11.01.2021, nearly 2½ years after the regulations were notified by UGC.
It is thus seen that there was a deliberate step taken by both the
Government and the two Universities to effectively avoid the Regulation
being introduced and discussed in the Legislative Assembly of the State
of Tamil Nadu. But at the same, a Government Order was passed as a
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facade to project adherence to the regulations, though a Government
Order can never be an amendment to any statute.
78.In the background of the aforesaid circumstances, the
petitioners in W.P.(MD)Nos.13488 and 13495 of 2021 have expressed
deep concern over one particular clause, which directly affected their
continuance in service as Principals of the American College, Madurai
and the Sadakathullah Appa College, Tirunelveli, respectively.
79.The UGC Regulation, 2018 while touching upon the Principals
of Colleges had brought in a regulation, which as follows:
“V. College Principal and Professor (Professor’s Grade)
A. Eligibility:
(i) Ph.D. degree
(ii) Professor/Associate Professor with a total service/
experience of at least fifteen years of teaching/research in
Universities, Colleges and other institutions of higher education.
(iii) A minimum of 10 research publications in peer-
reviewed or UGC-listed journals.
(iv) A minimum of 110 Research Score as per Appendix
II,Table 2 B. Tenure
i) A College Principal shall be appointed for a period of
five years, extendable for another term of five years on the basis
of performance assessment by a Committee appointed by the
University, constituted as per these regulations.
ii) After the completion of his/her term as Principal, the
incumbent shall join back his/her parent organization with the
designation as Professor and in the grade of the Professor.”
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80.In accordance with the above, the State of Tamil Nadu in
G.O.Ms.No.5, dated 11.01.2021 which is impugned before this Court in
both the aforementioned Writ Petitions, have brought in a very similar or
if not an exact regulation and that is also extracted below:
“V. College Principal and Professor (Professor’s Grade)
A. Eligibility:
(i) Ph.D. degree
(ii) Professor/Associate Professor with a total service/
experience of at least fifteen years of teaching/research in
Universities, Colleges and other institutions of higher education.
(iii) A minimum of 10 research publications in peer-
reviewed or UGC-listed journals.
(iv) A minimum of 110 Research Score as per Appendix
II,Table 2 B. Tenure
i) A College Principal shall be appointed for a period of
five years, extendable for another term of five years on the basis
of performance assessment by a Committee appointed by the
University, constituted as per these regulations.
ii) After the completion of his/her term as Principal, the
incumbent shall join back his/her parent organization with the
designation as Professor and in the grade of the Professor.”
It might appear that the same regulation had been extracted twice over,
but it is only to emphasis that the Government had adopted the very same
Regulation.
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81.Both the Writ Petitioners have no grievance about the eligibility
criteria fixed. But they have wept to their hearts content with respect to
the tenure stated.
82.It must be mentioned that the Writ Petitioner in W.P.(MD)No.
13488 of 2021 had opened up a battle in one front to protect his own
service as Principal and another in another front ostensibly to protect the
right of the College to choose a person (himself) to administer the
College and to ensure that the said person (himself) continues as
Principal for ever and ever.
83.Both the Writ Petitioners/Principals claim that at no point of
time in their service should their performance ever be assessed by anyone
much less the authorities controlling their College, namely, the
Universities and the providers of the grant, namely, UGC. They claim
that such assessment would be a direct infringement on the right of the
minority institution to choose any person of their choice to administer the
College. But, I wonder whether they would in the same breath accept if
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by some mischance, an inappropriate person had been selected as
Principal and would then prevent assessment of performance after a
period of five years or continue with the said individual even though he
is not a proper fit for the seat of the Principal of the College. Any way
that is a hypothetical scenario.
84.The tenure extracted above is clear. The terms are simple. The
terms are straightforward. It only provides that if any individual is
selected as a Principal, the initial appointment should be for five years. It
also provides that after five years and on completion of five years there
will be an assessment of the performance over the past five years and
eligibility/suitability to continue further. It must be kept in mind that the
two Writ Petitioners are Principals of educational institution where,
assessment of performance is inbuilt in the said institution itself. The
concept of assessment is ingrained at the time of establishment of every
educational institution. Every student and every teacher is assessed day
after day, month after month, quarterly after quarterly, semester after
semester and annually after annually. This process continues till the end
of term which the student studies or the Teacher continues to work as a
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teacher. It is not only made to weed out dead wood or those who stagger
behind on quality, but also to encourage better performance.
85.In G.O.Ms.No.5, dated 11.01.2021, the method in which a
Principal shall be selected and the assessment procedure have both been
given. They are as follows:
“VIII.College Principal and Professor:-
The existing procedure of promoting the Associate Professor to
the post of Principal on the basis of seniority shall be continued
in Government Colleges.
The selection procedure mentioned below shall be applicable to
selection of Principals to private colleges including Government
Aided Colleges.
A. Selection Committee
(a) The Selection Committee for the post of College Principal and
Professor shall have the following composition:
i) Chairperson of the Governing Body to be the
Chairperson.
ii) Two members of the Governing Body of the college to
be nominated by the Chairperson of whom one shall be an
expert in academic administration.
iii) Two nominees of the Vice-Chancellor who shall be
Higher Education experts in the subject/field concerned
out of which at least one shall be a person not connected
in any manner with the affiliating University. In case of
Colleges notified/declared as minority educational
institutions, one nominee of the Chairperson of the
College from out of a panel of five names, preferably from
minority communities, recommended by the Vice-
Chancellor of the affiliating university of whom one
should be a subject expert.
iv) Three Higher Education experts consisting of the
Principal of a College, a Professor and an accomplished
educationist not below the rank of a Professor (to be
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nominated by the Governing Body of the college out of a
panel of six experts approved by the relevant statutory
body of the university concerned).
v) An academician representing
SC/ST/OBC/Minority/Women/ Differently-abled
categories, if any of candidates representing these
categories is the applicant, to be nominated by the Vice
Chancellor, if any of the above members of the selection
committee does not belong to that category.
vi)Two subject-experts not connected with the college to
be nominated by the Chairperson of the governing body of
the college out of a panel of five names recommended by
the Vice Chancellor from the list of subject experts
approved by the relevant statutory body of the university
concerned. In case of colleges notified/declared as
minority educational institutions, two subject experts not
connected with the University nominated by the
Chairperson of the College governing body out of the -27-
panel of five names, preferably from minority
communities, recommended by the Vice Chancellor from
the list of subject experts approved by the relevant
statutory body.
(b) Five members, including two experts, shall constitute
the quorum.
(c) All the selection procedures of the selection committee
shall be completed on the day/last day of the selection
committee meeting itself, wherein, minutes are recorded
along with the scoring Proforma and recommendation
made on the basis of merit with the list of selected and
waitlisted candidates/Panel of names in order of merit,
duly signed by all members of the selection committee.
(d) The term of appointment of the College Principal shall
be five years, with eligibility for reappointment for one
more term only after an assessment by a Committee
appointed by the University as per the composition given
in sub-clause (B) of 5.1 (VIII).
(e) After the completion of his/her term as Principal, the
incumbent shall join back his/her parent organisation with
the designation as Professor and in the grade of the
Professor.
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B. Committee for Assessment of College Principal and
Professor for Second Term
The Committee for assessment to the post of College
Principal for second term shall have the following composition:
i) Nominee of the Vice-Chancellor of the affiliating
University.
ii) Nominee of the Chairman, University Grants
Commission.
The nominees shall be nominated from the Principals of the
Colleges with Excellence/College with Potential of
Excellence/Autonomous College/NAAC Grade ‘A’ accredited
colleges.”
86.The selection process has been interpreted in different ways by
the learned Senior Counsels and by the learned Additional Advocate
General.
87.The process of having a Selection Committee had been charged
as a direct interference with the right of a minority institution to
administer, namely, to chose a member of their own choice as guaranteed
under Article 30(1) of the Constitution of India by the learned Senior
Counsel appearing on behalf of the petitioners and on the other hand
viewed as a broad based opinionated selection process by the learned
Additional Advocate General, who stated that the Government of Tamil
Nadu, while introducing the Government Order, had taken care to see
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that representatives from minority education institutions are included in
the Selection Committee under every category. As a matter of fact, the
Chairperson will have the right to veto any choice and have a right to
vote if there is a tie among selected candidates. Thus, the final word of
selection would by the Chairperson of the Governing Body of the
College, in this case, the American College and the Sadakathullah
College. It is thus pointed out that more than sufficient space had been
given to the minority institution to ensure that their choice of Principal is
selected and an opportunity is given to them to also expresses views and
such views are expressed only in the interest of institution.
88.The discussion made lead us to examine a first issue, namely,
whether in the absence of amendment to the statute of the two
Universities as laid down by the UGC Regulation 2018, the terms or
clauses of G.O.Ms.No.5, dated 11.01.2018 can be thrust on the petitioner
Colleges?
89.Only when the answer to the above is held in the affirmative
can a meaningful discussion be gone into the next issue namely,
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(ii)Whether the selection process and the assessment of process at
the time of end of five years of College Principal of the two Colleges is
an intrusion into the right guaranteed under Article 30(1) of the
Constitution of India?
90.Let me examine the first issue:
91.It had been pointed out that the Senate in the case of MKU and
the Syndicate in the MSU have been given the power to amend or repeal
their existing statutes. In the case of MKU, however the Syndicate had
passed a resolution adopting G.O.Ms.No.5, dated 11.01.2018. No details
are given with respect to the decision taken by the authorities in
Manonmanim Sundaranar University.
92.Discussion of the above issue would naturally further extend to
examination whether an Executive Order by the State Government would
suffice or whether it should have been passed or introduced in the
Legislature or at least whether the bill to amend the two statutes
involving the two Universities should have been introduced in the
Legislature and an amendment brought about.
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93.This must also be examined in the background that in Tamil
Nadu, the private Colleges are governed by Tamil Nadu Private Colleges
(Regulation) Act, 1976.
94.Chapter-IV of the said enactment deals with terms and
conditions of service of Teachers and other persons employed in private
Colleges.
95.Sections 15 and 16 of the Act are as follows:
“15. Qualifications of teachers and other persons
employed in private colleges.- (1) The University may make
regulations, statutes or ordinances specifying the qualifications
required for the appointment of teachers[xxx]employed in any
private college.
[(2) The Government may make rules specifying the
qualifications required for appointment to any post, other than
teachers, in any private college.]
16. Appointment of teachers and other persons in private
colleges.-
(1) No person who does not possess the qualifications
specified under section 15 shall, on or after the date of
commencement of this Act, be appointed as teacher or other
employee in any Private College.
(2) Nothing contained in this section or any regulation,
statute or ordinance made under section 15 shall apply to any
person who, on or before the date of commencement of this Act, is
employed as teacher or other employee in any private college.”
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96.Section 24(i) is as follows:
“24.Chapter to have overriding effect and certain
provisions thereof not to apply to minority colleges.- .....
(i) other law for the time being in force, or
......”
Section 52 is as follows:
“52.Overriding effect of this Act. - The provision of this
Act shall have effect notwithstanding anything to the contrary
contained in any other law for the time being in force including
any regulation or statute of any University.”
97.Rule 11 of Tamil Nadu Private Colleges (Regulation) Rule
1976, provides for conditions of service, etc of Teachers and other
persons in a Private College. Rule 11(2)(i) and 11(4)(i) is as follows:
11. Conditions of service, etc.. of teachers and other
persons in college.-
(1) .....
(2) (i) The committee of every college shall enter into an
agreement with the teachers form 7-A and with the employees
other than teachers in Form 7-C. It the appointment is for a
period not exceeding three months, the agreement shall be made
in Form 7-B in the case of teachers and in Form7-D in the case
of employees other than teachers.
......
4(i)Promotions in respect of teaching staff shall be made
on grounds of merit and ability, seniority, being considered only
where merit and ability are approximately equal and in respect of
non-teaching staff promotions shall be made on seniority basis,
provided other conditions regarding qualification are satisfied
..... ”
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98.It is seen that the Act also provides and stipulates qualifications
and the manner in which promotion can be given. This Act was
introduced in the year 1975 and owing the promulgation of State of
Emergency at that time, that Act was approved by the President of India.
99.It is the contention of the learned Senior Counsel for the
petitioners that when this particular enactment is in force, introducing a
new set of guidelines or regulations would be an infringement of the
right of a minority institution. But what has been missed out in that
argument is that if introducing the Regulation 2018 can be said to be a
violation of the rights guaranteed under Article 30(1) of Constitution of
India, then the introduction or applicability of the Tamil Nadu Private
Colleges (Regulation) Act and Rules themselves should also be
considered as an infringement of the right of the minority institution.
Therefore, that argument cannot be countenanced.
100.However, the fact that the two Universities had not brought in
legislation or amendment to their statute and the Government of Tamil
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Nadu had also not brought in necessary amendment or introduced the
amendments to the two statutes in the Legislature, brings into focus one
important fact. If these amendments to the two Acts of the two
Universities had been introduced in the Legislature, then there would
have been scope for discussion with respect to its applicability to the
various categories of educational institution, particularly minority
institutions and a discussion on the right guaranteed under Article 30(1)
of the Constitution.
101.The arguments putforth before this Court should have been a
discussion in the Legislature. The views of Legislators are in fact the
voices of people. The legislature could have introducd a binding
enactment. They did not have that opportunity. The petitioners have
therefore raised a challenge to G.O.Ms.No.5.
102.Thus, a combined failure of the institutions, namely, the
legislature of the Government and the executive of the Universities have
emboldened the two Colleges to question the introduction of the
regulations by way of an Executive Order by the State Government.
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103.It is the contention of the learned Additional Advocate General
and Mr.N.Vijay Narayanan, learned Senior Counsel that there was no
necessity to introduce a legislation in the sense that the Government did
not question any of the regulations stipulated by the UGC and therefore,
passing a Government Order would suffice. In the same breath, the
learned Senior Counsel also faulted the Writ Petitioners in not having
questioned the UGC Regulations 2018 by stating that the said
Regulations were the source for the passing of Government Order.
104.When the University Grants Commission had brought in UGC
Regulations 2010, Dr.Kalayani Mathivanan, was appointed as Vice
Chancellor of Madurai Kamaraj University. A Writ of Quo Warranto was
filed to show cause under what authority, she continued to hold the office
of Vice Chancellor. The post of Vice Chancellor had fallen vacant in the
year 2011-12. The Government constituted a Search Committee. On the
recommendation of the Search Committee, Dr.Kalyani Mathivanan, was
selected and appointed as Vice Chancellor for a period of three years. It
was contended in that Writ Petition that she did not have the minimum
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qualification or minimum experience as Professor in a University. When
the issue reached the Honourable Supreme Court, while examining the
List I Entry 66 of the Constitution, it was held as follows:
“54.The question that now arises is whether any of the
provisions of the State legislation (the University Act, 1965) and
the Statutes framed thereunder are in conflict with the Central
legislation i.e. the UGC Act, 1956 including the UGC
Regulations, 2010.
55.We find that the post of Vice-Chancellor under the University
Act, 1965 is a post of an officer. The UGC Act, 1956 is silent
about this aspect. The UGC Regulations, 2000 are also silent in
regard to the post of Vice-Chancellor. The provisions regarding
Vice-Chancellor have been made for the first time under the UGC
Regulations, 2010.
56.We have noticed and held that the UGC Regulations, 2010 are
not applicable to the universities, colleges and other higher
educational institutions coming under the purview of the State
Legislature unless the State Government wish to adopt and
implement the Scheme subject to the terms and conditions
therein. In this connection, one may refer to Para 8(p)(v) of
Appendix I dated 31-12-2008 and Regulation 7.4.0 of the UGC
Regulations, 2010.
......
61.We do not agree with the finding of the Bombay High Court
that Regulation 7.3.0 of the UGC Regulations, 2010 is not
traceable to clause (e) or (g) of Section 26(1) of the UGC Act,
1956. We also refuse to agree that Regulation 7.3.0 of the UGC
Regulations, 2010 being subordinate legislation under the Act of
Parliament cannot override the preliminary (sic primary)
legislation enacted by the State Legislature. However, the finding
of the Bombay High Court that Regulation 7.3.0 has to be treated
as recommendatory in nature is upheld insofar as it relates to the
universities and colleges under the State legislation.”
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105.The Honourable Supreme Court had further observed that
unless the State Government adopts and implements the scheme of UGC
Regulation 2010 would not be applicable to Universities and Colleges.
That judgment makes it imperative that legislation should be brought in
to confirm applicability of UGC guidelines. In this case,
(i)the State Government had not brought in any legislation to
amend the MKU Act or MSU Act in accordance with the UGC
Regulation 2018.
(ii)The Senate in the case of MSU and the Syndicate in the case of
MKU have also not exercised the power vested with them under their
respective statutes to introduce the amendment to their statutes in
accordance with UGC Regulation 2018.
106.The Writ Petitioners to cover up these lacunae have not
impleted the UGC as a party to the Writ Petitions. The Writ Petitioner in
W.P.(MD)No.13495 of 2021 had not even impleaded the Manonmaniam
Sundaranar University as a respondent. Both the Writ Petitioners have
not questioned the UGC Regulations 2018. This is only because, if they
had launched an attack on those Regulations, then they would have to
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implead the UGC as a respondent.
107.The points crystalised above leads to an unsavory opinion that
the petitioners and the respondents are actually involved in shadow
boxing to stage a litigation to avoid interference by the UGC or
insistence by the UGC to apply their Regulations 2018. Thus, there
appears to be an oblique motive behind the two Writ Petitions.
108.It is a fact that the Principals of the two Colleges have
completed ten years of service and therefore, they apprehend that they
may not be able to continue.
109.In (2005) 7 SCC 584 [State Bank of India Union (Madras
Circle) vs Union of India and others], the retrospective and retro-active
fact of a legislation had been examined by the Honourable Supreme
Court and it was held as follows:
19.Every sovereign legislature possesses the right to make
retrospective legislation. The power to make laws includes the
power to give it retrospective effect. Craies on Statute Law (7th
Edn.) at p. 387 defines retrospective statutes in the following
words:
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“A statute is to be deemed to be retrospective, which takes away
or impairs any vested right acquired under existing laws, or
creates a new obligation, or imposes a new duty, or attaches a
new disability in respect to transactions or considerations
already past.”
20.Judicial Dictionary (13th Edn.) by K.J. Aiyar, Butterworth, p.
857, states that the word “retrospective” when used with
reference to an enactment may mean (i) affecting an existing
contract; or (ii) reopening up of past, closed and completed
transaction; or (iii) affecting accrued rights and remedies; or (iv)
affecting procedure. Words and Phrases, Permanent Edn., Vol.
37-A, pp. 224-25, defines a “retrospective or retroactive law” as
one which takes away or impairs vested or accrued rights
acquired under existing laws. A retroactive law takes away or
impairs vested rights acquired under existing laws, or creates a
new obligation, imposes a new duty, or attaches a new disability,
in respect to transactions or considerations already past.
21. In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edn.,
2005) the expressions “retroactive” and “retrospective” have
been defined as follows at p. 4124, Vol. 4:
“Retroactive.—Acting backward; affecting what is past.
(Of a statute, ruling, etc.) extending in scope or effect to matters
that have occurred in the past. — Also termed retrospective.
(Black's Law Dictionary, 7th Edn., 1999)
‘ “Retroactivity” is a term often used by lawyers but rarely
defined. On analysis it soon becomes apparent, moreover, that it
is used to cover at least two distinct concepts. The first, which
may be called “true retroactivity”, consists in the application of a
new rule of law to an act or transaction which was completed
before the rule was promulgated. The second concept, which will
be referred to as “quasi-retroactivity”, occurs when a new rule of
law is applied to an act or transaction in the process of
completion…. The foundation of these concepts is the distinction
between completed and pending transactions….’ T.C.
Hartley, Foundations of European Community Law, p. 129
(1981).
***
Retrospective.—Looking back; contemplating what is past.
Having operation from a past time.
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‘Retrospective’ is somewhat ambiguous and that good deal of
confusion has been caused by the fact that it is used in more
senses than one. In general, however, the courts regard as
retrospective any statute which operates on cases or facts coming
into existence before its commencement in the sense that it
affects, even if for the future only, the character or consequences
of transactions previously entered into or of other past conduct.
Thus, a statute is not retrospective merely because it affects
existing rights; nor is it retrospective merely because a part of the
requisite for its action is drawn from a time antecedent to its
passing.” (Vol. 44, Halsbury's Laws of England, 4th Edn., p. 570,
para 921.)
110.This position has been reiterated in 2012 (1) SCC 612, Swami
Vivekananda College of Education and others vs Union of India and
others.
111.The Principals apprehended that the axe might fall on theirs
heads and therefore, it was necessary for them to create this litigation
when there is no statute introduced by their Governing Universities
touching upon their tenure. G.O.Ms.No.5, dated 11.01.2018 also
specifies as follows:
“1.2.Every University or Institution deemed to be
University, as the case may be, shall as soon as may be, but not
later than within six months of the coming into force of these
Regulations, take effective steps for the amendment of the
statutes, ordinances or other statutory provisions governing it, so
as to bring the same in accordance with these Regulations.”
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112.This statement in the Government Order remains only on
paper without any intention to determine whether it had been effectively
implemented by the Universities. It is thus clear that the the petitioners
and the respondents have literally created a stage for their play in order to
avoid any enquiry by the UGC regarding to the implementation of
Regulation 2018.
113.W.P.(MD)Nos.13488 and 13945 of 2021 will have to suffer an
order of dismissal on these grounds alone.
114.W.P.(MD)No.19374 of 2021 has been filed for a Mandamus by
a groom in waiting calling upon the Governing Council of the American
College to call for applications for the post of Principal and the petitioner
is also hopeful that he will be selected as a Principal.
115.The Regulations themselves have not been implemented. No
Mandamus can therefore be issued. Therefore, this Writ Petition also has
to suffer an order of dismissal.
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116.The primary object of the regulation is only to ensure that
minority institution do not lay behind in quality as compared with non
minority institutions. That is the object of the UGC Regulation 2018.
They do not infringe upon the right, but rather they give a methodology
in which a Principal can be chosen and give an outer time limit within
which anybody holding the post of Principal can effectively discharge
their particular work.
117.The assessment at the end of five years is on the individual
and does not reflect on the institution. It is for the benefit of the
institution that the individual is assessed at the end of five years to find
out his/her suitability to continue further. This assessment would prevent
any stagnation in the mind of the individual and would trigger thoughts
to further innovate and bring about techniques to improve the quality of
education. If the minority institutions seek to preserve their exclusive
right to administer and thereby to appoint Principal of their choice, they
should have raised objections even to the regulation contained in the
Tamil Nadu Private Colleges (Regulation) Act, 1975.
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118.It is only hoped that every measure to bring about betterment
in the fields of education is viewed through microscopes and magnifying
glasses. No regulation should be viewed with suspicion but as a
regulation introduced with intention to improve the quality. The
petitioner should understand that that the only aspect which is constant is
change and as the word reveals change is imminent in every educational
institution whether run by minorities or by anybody else to ensure that
the Principal who governs those institution is bestowed with skil,
knowledge and has an eye for innovation. A reading into the regulations
as an infringement to their rights would not help the institutions in a long
run. Every advise from experts have to be received with open minds as
they only guide the institutions towards a better future.
119.The harangue above does not help in giving a judicial decision
since, the following points emerge:
(1)UGC Regulations 2018, dated 18.07.2018, made it mandatory
that Universities must amend their statutes within six months in
conformity with the regulations.
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(2)MKU and MSU have not amended their statute?
(3)The State Government passed G.O.Ms.No.5, dated 11.01.2021.
(4)The Government Order mandated that Universities must amend
their statutes in conformity with the Government Order.
(5)Both the MKU and MSU have not amended their statutes.
(6)The Syndicate of MKU has passed a resolution adopting the
Government Order. This is not a legislation or amendment of statutes.
(7)There is no information of the steps taken by the MUS to amend
its statute.
120.In the aforesaid circumstances, the UGC Regulation 2018
remain only on paper and have not been adopted in letter and spirit by
amending the MKU Act, 1965 and MSU Act, 1990. This fact also means
that the State Legislature did not have the opportunity to examine the
regulations. Only when the statutes are amended, can this Court examine
whether such amendments are ultra vires Article 30(1) of Constitution or
intra virus Article 30(1) of Constitution. As on date, the UGC Regulation
2018 remain just as a piece of paper. They have not been adopted by the
MKU and MSU in manner prescribed. They can therefore not be
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imposed on Colleges under MKU or MSU.
121.The Writ Petitions have been filed on an imaginary cause of
action to only save the skins of the two Principals. It is for that reason, to
avoid being impinged by UGC that a shadow legal battle has been
initiated and fought in the Court. The petitioners and the respondents
both lack bona fides
112.In view of the above determination, I refrain from examining
the impact of the regulations or the Government Order on Article 30(1)
of the Constitution, though arguments at length were advanced.
113.The Writ Petitions fail for lack of bona fide and owning to
there being no enactment in force in conformity with UGC Regulations
2018 or G.O.Ms.No.5. Further, the UGC has not been made as a party
and this seriously affects the bona fide of the Writ Petitioners.
114.In the result
(1)W.P.(MD)Nos.13488 and 13495 of 2021 are dismissed. No
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costs.
(2)W.P(MD)No.19374 of 2021 is also dismissed, since the statutes
have not been amended to bring into effect the UGC Regulations or the
Government Order and therefore, Mandamus can not be issued. No
costs.
(3)W.M.P.(MD)No.12610 of 2021 is consequently dismissed.
(4)Consequently, connected miscellaneous petitions are closed.
115.The Registry is directed to forward a copy of this order to
(1)The Office of the Assistant Solicitor General, Madurai Bench of
Madras High Court, with a direction to forward a copy to the University
Grants Commission, Bahadur Shah Zafar Marg, New Delhi-110 002
(2)The University Grants Commission, Bahadur Shah Zafar Marg,
New Delhi-110 002.
(3)Manonmaniam Sundaranar University, Abishekapatti,
Tirunelveli, 627 012.
Index :Yes / No 04.02.2022
Internet :Yes
cmr
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W.P.(MD)Nos.13488, 13495 and 19374 of 2021
To
1.The Secretary,
State of Tamil Nadu,
Higher Education (H1) Department,
Fort St.George, Chennai.
2.The Director of Collegiate Education,
Department of Higher Education,
Government of Tamil Nadu.
3.The Regional Joint Director of Collegiate Education,
Office of the RJD, Madurai, Madurai.
4.The Regional Joint Director of Collegiate Education,
Office of the RJD,
18, Tiruchendur Road, Murugankuruchi,
Tirunelveli.
5.The Assistant Solicitor General
Madurai Bench of Madras High Court,
Madurai (to forward a copy to University Grants
Commission, New Delhi).
6.The University Grants Commission,
Bahadur Shah Zafar Marg, New Delhi-110 002.
7.Manonmaniam Sundaranar University,
Abisekhapatti, Tirunelveli.
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C.V.KARTHIKEYAN, J.
cmr
Order made in
W.P.(MD)Nos.13488, 13495 and 19374 of 2021
04.02.2022
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