S MAHADEVAN Vs. S BALASUNDARAM

JUDGEMENT

(1.) W.P.No.5426 of 1984 has been preferred by the petitioner for the issue of a writ of quo warranto or other appropriate writ, order or direction calling upon the first respondent herein to show to the satisfaction of this Court on what legal authority he was appointed as Associate Professor in the Madras Veterinary College on 30.4.1984 and how he continues in the office. The Office of Associate Professor in the Faculty of Veterinary and Animal Sciences, hereinafter referred to as the office, in the second respondent University, amongst other offices, was sought to be filled up by the second respondent by calling for applications by making the requisite advertisement in The Hindu on 8.2.1984. The interview by the Selection Committee was held on 21.4.1984 and the second respondent appointed the first respondent to the Office on 28.4.1984 and the first respondent assumed Office on 30.4.1984 A.N. The ground on which the writ of quo warranto is asked for is that the first respondent was appointed and he is holding the Office in infringement of the provisions of law which laid down the qualifications for the Office. I shall presently advert to the prescription of the qualifications for the Office. This is the gravamen of the charges leveled by the petitioner against the first respondent with regard to his appointment and holding on to the Office. The petitioner] would state that the advertisement in The Hindu specifically laid down the following qualifications: Ph.D. Degree with five years experience in teaching research in the subject concerned. That was so, is not in issue before me. Further, it was notified that the Tamil Nadu Agricultural University employees will be governed by G.O.Ms.No.62, Agriculture Department, dated 10.1.1979, hereinafter referred to as the Government Order. The Government Order with regard to the Office lays down the qualifications as Ph.D. Degree with five years of experience in teaching/research in the subject concerned. Practically, this has been reproduced in the advertisement calling for applications. Clause 6 of the Government Order reads as follows:

(2.) The contesting respondents in this writ petition are respondents 1 and 2. They have a common cause to counteract the case of the petitioner. Mr. R.Sundara-varadhan, learned Counsel appearing for the first respondent, would state that if this Court were to issue a writ of quo warranto, the following conditions have got to be primarily satisfied, namely, (1) the office must be public and (2) it must have been created by a statute and the learned Counsel would contend that these two elements are glaringly lacking in the present case and hence, this Court should not issue the writ of quo warranto as prayed for by the petitioner. These aspects shall be adverted to after I set forth the contentions of the second respondent also. Learned Counsel for the first respondent would further state that the Government Order could not have the character of a binding rule of law and it has got a place only as an administrative or executive instruction and hence, any violation thereof and the consequent appointment of the first respondent to the office could only be an irregularity, which could be cured by immediate reappointment and in fact, the first respondent has subsequently acquired the Ph.D. Degree qualification within the extended time as per G.O.Ms. No. 1633, Agriculture, dated 23.8.1984 and in this contingency, this Court shall not issue a writ of quo warranto which would be a futile judicial exercise.

(3.) On behalf of the second respondent, Mr. R. Krishnamoorthi, learned Advocate-General, apart from subscribing support to the submissions made on behalf of the first respondent that the Government Order cannot be elevated to a binding rule of law and it has the character of only an administrative or executive instruction, would also contend as follows: The statutory prescription of qualifications which alone must govern with regard to the office is not so stringent as expressed in the advertisement which had merely repeated what is stated in the Government Order. Regulation 5 of the second respondent University, formulated pursuant to powers under section 38(e) read with sub-section (4) of section 48 of the Tamil Nadu Agricultural University Act 8 of 1971, hereinafter referred to as the Act, has laid down that the qualifications in respect of various posts in the University shall be as specified in Appendix I with regard to the office the qualifications are expressed in Serial Number 8 of Appendix I as follows: