(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of Declaration declaring the minutes of the selection committee dated November 15, 2019 with regard to the appointment of the staff in the vacant post in the department Zoology, of the Auxilium College (Autonomous), Vellore as null and void and consequently direct the 3rd respondent to conduct the interview process afresh pursuant to the advertisement published in The Hindu (inter alia, Tirupati Edition) August 12, 2019 by the 3rd respondent inviting applications from the eligible women candidates for the post of Assistant Professor for various departments including Zoology department.)

1. Heard the learned counsel for the petitioner, learned Additional Government Pleader for R1 and R2, learned senior counsel for R3 and the learned counsel appearing for R4 and perused the record.

2. The petitioner by the present writ petition has assailed the action of the 3rd respondent in selecting the 4th respondent to the post of Assistant Professor (Zoology) in the aided stream (for short 'aided') and the approval accorded by the 2nd respondent to the said selection as being contrary to UGC Regulations and also the selection process lacking transparency.

3. The petitioner contended that the 3rd respondent had caused an advertisement on 12.08.2019 in the news papers inviting applications from eligible women candidates for the post of Assistant Professor in Ten (10) subjects including Zoology, which appointment it was claimed is subject to approval by the Directorate of College Education being an aided post. As per the aforesaid advertisement caused, applications were to be submitted on or before 26.08.2019 to the Secretary of 3rd respondent College; and in the said advertisement it has been mentioned that the qualification for applying to the aforesaid post is as per UGC norms.

4. It is the further case of the petitioner that pursuant to the aforesaid advertisement caused by the 3rd respondent, she being already in employment with the 3rd respondent in the post of Assistant Professor (self financing stream) and being eligible had submitted her application on 22.08.2019; that in response to the aforesaid application submitted by her, had received an E-mail dated 17.10.2019 from the third respondent calling her to attend the interview; and that she had attended the interview held on 29.10.2019.

5. The petitioner further contended that after attending the interview on 29.10.2019, while she did not hear anything from the respondents with regard to the selection of any applicant for aforesaid post, however, noticed that the 4th respondent started signing the attendance register of the 3rd respondent.

6. It is further case of the petitioner that the 4th respondent did not possess Ph.D qualification as required under the UGC Regulations; that she through her father sought for information under RTI Act with regard to the selection process, by which the 4th respondent was selected and also the minutes of the 3rd respondent selection committee; that on the 3rd respondent furnishing the skeleton information sought for by her father, she had learnt that the 3rd respondent had appointed the 4th respondent against the aforesaid vacancy notified contrary to the UGC Regulations, mandating the requirement of having Ph.D qualification for being appointed to the post of Assistant Professor; that the 4th respondent did not have the requisite qualification (i.e,) Ph.D on the date when she had applied to the aforesaid post; that the 4th respondent was only a student pursuing her Ph.D programme; and thus, the appointment of the 4th respondent is contrary to UGC Regulations, which the 3rd respondent is required to follow while selecting the candidates.

7. It is also the further case of the petitioner that the petitioner had learnt of 3rd respondent making use of the selection process undertaken by it, pursuant to the advertisement caused on 12.08.2019, taking advantage of the resignation of the selected candidate after 24 days of her joining for appointing 4th respondent merely after an year of completion of the said process, without undertaking the selection process afresh again.

8. Petitioner also contended that since, the 3rd respondent while appointing the 4th respondent against the vacancy in aided stream, had failed to follow the time lines specified in the guideline for recruitment of faculty in University, College and institutions, Deemed to be University issued by the MHRD under the cover of letter dated 04.06.2019, the selection of the 4th respondent is vitiated and is liable to be set aside; and that the petitioner having stood higher in merit should be appointed against the aforementioned post i.e, Assistant Professor, (Zoology) (aided).

9. The 2nd respondent filed counter affidavit on its behalf and also on behalf of the 1st respondent. The 3rd respondent filed a separate counter affidavit along with vacate stay petition.

10. The 3rd respondent by the counter affidavit mainly contended that the contention of the petitioner of mandatory requirement to possess the qualification of Ph.D is misconceived as per Regulations 3 and 4 of the UGC Regulations notified on 18.07.2018.

11. On behalf of the 3rd respondent, it is contended that as per Regulations 3 & 4 of the regulations, the essential qualification for direct recruitment to the post of Assistant Professor is to possess minimum of 55% marks at Master level along with qualifying in National Eligibility Test (NET), or accredited test (SLET/SET); that the mandatory requirement of having qualification of Ph.D is made applicable only w.e.f. 01.07.2021; that since, the appointment is pursuant to an advertisement issued on 12.08.2019, the requirement specified in Clause 3.10 of Regulations would not be applicable; and thus, the present writ petition as filed on the aforesaid basis is misconceived and is liable to be dismissed.

12. On behalf of the 3rd respondent, it is further contended that, the 3rd respondent being a minority institution, it enjoys certain protection with regard to right of establishment and administration under Article 30 of the Constitution of India and one of the right relating to administration, is the right to select and appoint candidates of its choice.

13. It is further contended by the 3rd respondent that the prescription of the mandatory requirement of having Ph.D in Regulation 3.10 of UGC Regulations is only in relation to Universities and since, the 3rd respondent is an institution/college, the petitioner cannot claim that the appointment / selection of the 4th respondent is contrary to UGC Regulations, notwithstanding the fact that the mandatory requirement would come into force at a later date i.e., w.e.f. 01.07.2021 and not being applicable at relevant point of time.

14. On behalf of the 3rd respondent, it is further contended that pursuant to the advertisement caused on 12.08.2019, interviews were held for all the candidates who had submitted their applications which interalia includes the candidate possessing Ph.D decree and candidates who only had Masters degree qualification with the required percentage; that insofar as the candidate possessing Ph.D qualification are concerned they were awarded 25 marks extra as per the selection criteria prescribed under proceedings of Ministry of HRD dated 08.11.2017; and that the UGC Regulations or the MHRD guidelines no where prescribe that candidate not possessing Ph.D qualification, but performing better than the other candidates not to be selected.

15. On behalf of the 3rd respondent, it is also contended that pursuant to the interview held on 29.10.2019, the selection committee having found Dr. (Mrs.).Navamani.A, as suitable for appointment to the post of Assistant Professor (Zoology), selected and appointed her to the aforesaid post. It is contended by the 3rd respondent that the selected candidate on joining the service on 18.11.2019, submitted her resignation on 12.12.2019, which was duly accepted and was relieved from her duty on 13.12.2019, the 3rd respondent had appointed the 4th respondent on a consolidated salary of Rs.15,000/-p.m. under the cover of letter dated 07.01.2020 and had put the 4th respondent on probation for a period of two years form the date of joining.

16. On behalf of the 3rd respondent it is further contended that the appointment of the 4th respondent on consolidated salary was necessitated, so as to ensure that the students who are pursuing education in the institution/college do not suffer. Since, the advertisement for filling up the vacancy against aided post had arisen due to retirement of Dr.(Sr.)Mary Josephine Rani.A, Principal and Assistant Professor (Zoology) who had retired on 31.03.2018 and subsequent reemployment till 31.05.2018 (i.e) till the end of academic year.

17. On behalf of the 3rd respondent it is also contended that after appointing the 4th respondent on 07.01.2020, it had found that the 4th respondent was more efficient in teaching and her involvement in curricular and co-curricular activities and in the field of research is also better; that by taking into account the overall performance of the 4th respondent during the period of appointment on consolidated salary, the selection committee instead of strictly adhering to the marks secured by the candidates in the interview held on 29.10.2019, proposed to appoint the 4th respondent as Assistant Professor, Zoology (aided) by passing resolution dated 09.11.2020 and appointed her in regular post; and that the fourth respondent joined the service on 11.11.2020.

18. The 3rd respondent also contended that on the 4th respondent being appointed as a regular faculty w.e.f. 11.11.2020, the proposal papers were submitted to the competent authority on 18.11.2020 for approval; and that the 2nd respondent approved the appointment of the fourth respondent on 09.02.2021.

19. Thus, it is contended by the 3rd respondent that the selection of 4th respondent was carried out by adhering to the UGC regulations and also taking the overall performance of the 4th respondent, after being appointed in January 2020 on consolidated pay basis, basing on the overall comparative merits and also when the other candidates who stood higher in merit ranking, not responding to the calls made by the 3rd respondent/College, with regard to the offer sought to be made by it.

20. On behalf of the 2nd respondent, it is contended that since, the selection of the 4th respondent is by selection committee of the 3rd respondent constituted in terms of the UGC Regulations, the 2nd respondent on receiving proposal from the 3rd respondent on 18.11.2020, accorded its approval in February 2021, and it is for the selection committee to decide as to who it chooses to appoint.

21. On behalf of the 4th respondent it is contended that, the 4th respondent had pursued her studies in the 3rd respondent college including her Ph.D program and was appointed on consolidated salary of Rs.15,000/- p.m. in January 2020 and is continuing to receive the said payment in spite of being appointed by the 3rd respondent and also approved by the 2nd respondent, on account of stay granted by this Court.

22. On behalf of the 4th respondent, it is further contended that on account of challenge to her appointment, she is put in a disadvantageous position, not being able to receive the salary that is paid to the petitioner under self finance stream / management salary, and is forced to continue her work on meager payment.

23. By way of rejoinder, it is contended that since, the petitioner was working with the 3rd respondent, the 3rd respondent cannot claim of she not responding on call when offer was sought to be made to her and no material is placed before this Court to substantiate the aforesaid claim.

24. I have taken note of the respective contentions urged.

25. Before proceeding to examine the respective submissions, it is to be noted that the learned counsel for the petitioner submitted he is not pressing the relief of appointment of the petitioner to the post of Assistant Professor, by cancelling the appointment of 4th respondent and is confining the relief only in relation to correctness and validity of the appointment of the 4th respondent as Assistant Professor (Zoology) against aided post.

26. The thrust of the petitioner's challenge to the appointment of the 4th respondent as Assistant Professor, (Zoology) (aided) is that UGC regulations, 2018 mandates requirement of possessing Ph.D qualification, for the appointment of the post of Assistant Professor.

27. Though, the petitioner had sought to rely on Regulations No.3 of the Regulations 2018, firstly it is to be noted that regulation 3.10 of the Regulations dealing with requirement of having Ph.D qualification in respect of appointment of Assistant Professor is for Universities, and secondly, the said condition being applicable only in respect of appointments w.e.f. 01.07.2021. Since, the 3rd respondent is a College and not a University, the said regulation does not stand attracted or apply. Further, the 3rd respondent having undertaken the appointment to various post of Assistant Professor pursuant to advertisement dated 12.08.2019, the said regulations on which reliance is placed by the petitioner, comes into force only w.e.f. 01.07.2021 and cannot be given retrospective effect.

28. In addition, a reading of the Regulations particularly Regulations 3 and 4 in its entirety would show that the required educational qualification for appointment to the post of Assistant Professor in a College/institution, is securing minimum 55% marks in the Master degree, making them eligible for applying to the said post. Since, the 4th respondent though did not possess Ph.D degree, however having Master Decree and also the minimum qualifying marks prescribed by the UGC regulations, the claim of the petitioner of the 4th respondent being appointed without having Ph.D degree and the said appointment is contrary to the Regulations cannot be accepted as valid contention. Accordingly, the aforesaid contention urged on behalf of the petitioner is rejected.

29. However, it is to be noted, that the 3rd respondent pursuant to the advertisement caused on 12.08.2019, conducted interviews on 29.10.2019. Based on the interviews held, the selection committee at its meeting held on 15.11.2019 by considering the marks secured by various candidates who took part in the interview, choose to issue appointment order dated 18.11.2019 to one Dr. (Mrs).Navamani.A as Assistant Professor, Zoology (aided). The said selected candidate having accepted the appointment order issued by the third respondent letter and also joining in the said post on 18.11.2019, resulted in the entire selection process getting completed in the hands of the 3rd respondent and the 3rd respondent is only required to communicate the aforesaid selection viz., issuance of appointment order, acceptance of such appointment letter by the selected candidate and the selected candidate joining the service, to the 2nd respondent for its approval, being an aided post.

30. Though, on behalf of the petitioner it is contended that, the 2nd respondent being the competent authority having not granted its approval to the aforesaid appointment, it is to be noted that the selected candidate who had joined the service by accepting the appointment order on 18.11.2019, having tendered her resignation on 12.12.2019 i.e., within 24 days and requesting the 3rd respondent to accept her resignation w.e.f. 13.12.2019, and the 3rd respondent having accepted the same, whether such appointment of the selected candidate is approved or rejected by the 2nd respondent would be of no consequence and the petitioner cannot be allowed to claim that such appointment not having been approved by the 2nd respondent, more particularly when the 2nd respondent by the counter affidavit having not admitted to the said claim made by the petitioner.

31. Notwithstanding the fact that the 3rd respondent on completion of the interviews on 29.10.2019 and the selection committee on 15.11.2019 having decided to appoint the candidate who stood first in the selection process and the selected candidate having joined the service on 18.11.2019, the other candidate who stood below the selected candidate cannot claim that their names are to be placed in the waiting list for them to be considered at a later point time as the nonselected candidates could not have imagined that the selected candidate would not accept the offer or would resign at later date after joining the service.

32. Further, it is settled position of law that unless and until the rules permit or prescribe for preparation of wait list of candidate, on the selected candidate joining the service, the entire selection process would got completed and in the event of any eventuality of the selected candidate resigning from the post at a later point of time, the concerned authorities are required to initiate the selection process afresh, again which in the facts of the present case had occurred on 12.12.2020. (See – Rakhi Ray and others V. High Court of Delhi and others – (2010) 2 SCC 637).

33. Though on behalf of the respondents, it is contended that on the selected and joined candidate having resigned within 24 days, the respondent having appointed the 4th respondent on consolidated basis in order to prevent any disturbance to the academic calendar, affecting the students; that it is only thereafter in November 2020, the selection committee after observing the 4th respondent teaching abilities performance and her curricular activities during the period from January till November to be comparatively better; also that the other candidates above the 4th respondent, having not responded to the calls made to them; and thus, appointing the fourth respondent to the post of Assistant Professor, firstly, as noted herein above, neither the UGC regulations 2018 nor the Rules of the 3rd respondent if any provide for maintaining wait list of candidates for any specified period, for the 3rd respondent to claim, that the vacancy arising out of such contingency, being offered to the next candidate; secondly, such claim could be considered as valid, only if the selected candidate having not accepted the offer for any reason. Once, the selected candidate had joined the service and resigning thereafter, irrespective of the period of service, the claim of the 3rd respondent of they having offered the aforesaid vacancy to the next candidate in merit and on not receiving any response from them, the 4th respondent being appointed against the said vacancy, does not impress this Court for being accepted as valid reason justifying its action.

34. Further, the claim of the 3rd respondent, of it making calls to the other candidates and on they not responding to the calls, the 4th respondent having been issued with the appointment letter, does not appeal to this Court for being accepted, as no details as to when the 3rd respondent had sought to contact the other candidates who had secured higher marks than the 4th respondent in the interview held on 29.10.2019, are forthcoming.

35. Though in the minutes of the selection committee dated 09.11.2020, it is claimed that the other candidates did not responded to the calls made to them and thus, appointment order is being issued to the 4th respondent, it is to be noted that the third respondent undertook appointment to the post of Assistant Professor (Zoology) by way of direct recruitment, causing advertisement on 12.08.2019 inviting applications. It is pursuant to the said advertisement candidates both internal and external like the petitioner who was working with the 3rd respondent and other outside candidates had applied and taken part in the selection process. Thus, the 3rd respondent cannot claim of having contacted them over a call and they not responding to the same, due to which the 4th respondent being issued with the appointment letter. The mode of communication through call cannot be accepted as a valid mode of communication in case of appointments.

36. It is also interesting to note that the 3rd respondent while claiming that the other candidates who had secured higher marks over the 4th respondent having not responded to the call, did not mention the details of the call made including to the petitioner, who admittedly was working with the 3rd respondent, for it to claim that even the petitioner did not responded to the said call. Since, the petitioner already is an in service candidate working with the 3rd respondent, nothing prevented the 3rd respondent from taking her consent/willingness as to whether she is inclined to accept the position of Assistant Professor, Zoology (aided) or not in writing. In absence of 3rd respondent not undertaking to communicate the offer through formal mode of communication in writing and on the other hand seeking to justify its action by claiming to have made a call, which is an informal mode of communication, this Court is of the view that the said statement made by the 3rd respondent is only intended for the purpose of the present case and thus, cannot be accepted. Accordingly, the said claim of the 3rd respondent by its counter affidavit is rejected.

37. Further, the UGC regulations do not provide for maintaining a wait list and also that there are no rules of the 3rd respondent providing for preparation of wait list and its validity period. In absence of any statutory mandate or Rule the 3rd respondent cannot claim of it undertaking to recruit the other candidates from the list of candidates who had taken part in the selection process on 29.10.2019, after a lapse of one year, for this Court to accept such exercise as a valid exercise.

38. The Hon'ble Supreme Court in the case of State of Punjab v. Raghbir Chand Sharma and another - (2002) 1 SCC 113 dealing with a similar situation of a candidate joining and resigning thereafter had held as under :-

                     “4. ....As rightly contended for the appellant State, the notification issued inviting applications was in respect of one post and the first candidate in the select panel was not only offered but on his acceptance of offer came to be appointed and it was only subsequently that he came to resign. With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently......”

39. Applying the law as laid down by the Hon'ble Apex Court to the facts of the present case, since, neither the UGC Regulations 2018 nor there being any Rules of the 3rd respondent, providing for maintaining a wait list of candidates against any vacancy notified and the period during which the said wait list would be valid, the action of the 3rd respondent in issuing the appointment letter dated 11.11.2020 to the 4th respondent appointing her as Assistant Professor, Zoology (aided) on the basis of selection process held on 29.10.2019 and forwarding the said appointment to the competent authority (i.e,) 2nd respondent, and the 2nd respondent approving the same vide Proceedings dated 09.02.2021 cannot be held as valid exercise undertaken, for it to receive stamp of approval from this Court.

40. Accordingly, it is held that the selection of the 4th respondent as Assistant Professor by the selection committee on 09.11.2020 on the basis of the interview held on 29.10.2019, pursuant to the advertisement issued on 12.08.2019 cannot be held as complying with the UGC Regulations 2018 and also in accordance with the time line specified by the UGC vide its communication dated 04.06.2019 under the heading “Guidelines for recruitment of Faculties in Universities, Colleges and Institutions deemed to be University”.

41. Further, the selection committee which conducted interview on 29.10.2019 consisted of 6 members including Principal i/c. Dr.(Sr.)Regina Mary.R as one of its committee members which resolved to appoint Dr.(Mrs.)Navamani.A as Assistant Professor. However, the composition of the selection committee which is stated to have held meeting on 09.11.2020 whereat the 4th respondent was selected, not only consisted of 7 members (i.e.,) with addition of one Dr. (Mrs.)Mary Agnes.A, Associate Professor of Zoology, but also there being change of Principal i/c. Dr.(Sr.)Jaya Santi.R in place of Dr.(Sr.)Regina Mary.

42. Thus, the members of the selection committee who conducted interviews of the candidates on 29.10.2019 is not the same committee which had taken decision to appoint the 4th respondent, after the selected and joined candidate submitting her resignation on 12.12.2019. This aspect also vitiates the selection and appointment of the 4th respondent.

43. In view of the above, this Court has no hesitation to hold that the appointment of the 4th respondent by the 3rd respondent under the letter of appointment dated 11.11.2020 smacks of transparency and trickery, making the said appointment of 4th respondent vitiated and liable to be set aside.

44. Though, the learned counsel for the 4th respondent submitted that inspite of the 4th respondent is appointed to the aforesaid post, on account of the present writ petition, she is being paid meager salary of Rs.15,000/- p.m. as consolidated salary and the respondent be directed to pay atleast the management salary, the learned senior counsel for the 3rd respondent assures this Court that the matter would be looked into by the 3rd respondent institute / college based on record. The aforesaid assurance of the learned senior counsel for the 3rd respondent is recorded and this Court does not wish to disgress from the main issue falling for consideration.

45. Accordingly, the writ petition is allowed on the following terms :-

                     (i)the selection and appointment of the 4th respondent under the letter of appointment dated 11.11.2020 as approved by the 2nd respondent proceedings dated 09.02.2021 is set aside;

                     (ii)the matter is remitted back to the 3rd respondent for causing fresh advertisement to fill up the vacancy to the post of Assistant Professor, Zoology (aided); and

                     (iii)the 3rd respondent is directed to complete the selection process of appointment of Assistant Professor, Zoology (aided) afresh as expeditiously as possible, however, before the commencement of next academic year 2026-2027 and to submit list of selected candidate to the 2nd respondent being the competent authority for according its approval.

46. At this stage, it is to be noted that since, the 4th respondent is appointed pursuant to letter of appointment dated 11.11.2020 and also taking note of the fact that the academic year 2025-2026 would end shortly, in order to ensure that no disturbance is caused to the students on account of this Court, setting aside the selection and appointment of the 4th respondent, this Court is of the view that the 3rd respondent is at liberty to continue the services of the 4th respondent for the remaining academic period 2025-2026.

47. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.