WP/7887/2001 of DR.P.RADHAKRISHNAN,TRIVENI Vs MADRAS INSTITUTE OF DEVELOP- on 13 December 2002

:J U D G M E N T

The facts giving rise to the present writ petition are as follows :-Petitioner is presently working as a Professor in the first respondentInstitute which had been founded in 1971 by Dr. Malcom S. Adiseshiah and hiswife to undertake studies and research pertaining to development problems withspecial reference to agro-rural aspects of Tamil Nadu and the problems of theeconomically and socially backward sections throughout the country. In 1977,the Institute was reconstituted as a National Institute jointly sponsored by the Indian Council of Social Science Research, New Delhi and the Government ofTamil Nadu. One Dr. Paul P. Appasamy was appointed as Director of theInstitute on 1.11.1997. However, he tendered his resignation which wasaccepted and it was decided to appoint a new Director. At that stage, theexisting professors in the Institute, including the present petitioner,expressed their disinclination to become Director and accordingly a SearchCommittee was constituted and the petitioner was one of the members of thesaid Search Committee. The Search Committee recommended that the presentrespondent No.2 be offered the post of Pro Tem Director for a period of 2years and the search for appointment of a regular Director may be resumedafter assumption of the office by the new Director. The report of the SearchCommittee was placed before the Governing Council which however took the viewthat the present respondent No.2 may be appointed as Director for a regularterm of 5 years instead of 2 years as suggested by the Search Committee.Accordingly a resolution was passed and the respondent No.2 assumed the chargeof Director of the Institute. The petitioner has prayed for quashing itemNo.2 of the resolution dated 23.12.1999 so far as it relates to appointment ofthe second respondent as Director for a period of 5 years and consequentlydirect to restrict the term for a period of 2 years instead of 5 years.

2. A counter affidavit has been filed justifying the appointment of the respondent No.2 for a period of 5 years. Besides, thequestion of maintainability of the writ petition at the instance of thepetitioner, who had declined to become the Director, has been raised. It isalso stated that the first respondent Institute being a Trust, petition is notamenable to the writ jurisdiction of the High Court under Article 226 of theConstitution of India.

3. Learned counsel for the petitioner placed reliance upon Rule 5 of Section V of the Service Rules applicable to the Institution andcontended that the age of retirement being 60, a person beyond the age of 60could be appointed for a period of 2 years at a time and accordingly therespondent No.2 could not have been appointed for a period of 5 years. Therelevant provision as contained in Rule 5 of the Service Rules of theInstitute is extracted hereunder:

“ 5. Retirement :-

a) The age of retirement of the members of the academic administrative and other staff in permanent whole-time service shall be the completion of theage of 60. Academic staff may be given superannuation contracts upto the ageof 65 with each contract not exceeding 2 years. . .”

Clause 7 of the Amended Deed of Trust being relevant, is extractedhereunder :

“ 7. Director

(1) The Governing Council may appoint one of theProfessors/Senior Fellows of the Institute or someone who is consideredeligible to be Professor/Senior Fellow of the Institute as its Director for aperiod of Five Years. Such appointment may not ordinarily exceed a secondterm of Five Years. The search process for the successor should commence twoyears before the end of the tenure of the Director.

(2) The Director shall get such emolments and facilities as the Governing Council may decide from time to time.

(3) The Director shall be the Chief Executive Officer of theInstitute. His powers and duties shall be prescribed by the Governing Councilunder Rules and Regulations.”

4. It is the contention of the petitioner that even though as per Clause 7 of the Trust Deed a Director can be appointed for a period of 5years, such appointment cannot be contrary to the provisions contained in Rule5 of the Service Rules which stipulate that the age of retirement is 60 and aperson can be allowed to continue on contract basis thereafter upto the age of65 years with each contract not exceeding 2 years and therefore, he hassubmitted that if a person age of 60 is to be offered the post of Director,such appointment can be only for a period of 2 years at a time and not for aperiod of 5 years.

5. Even though the aforesaid submission may appear to be prima facie attractive, on closer scrutiny I am unable to accept such acontention. It is seen from Clause 7 of the Deed, which is a specificprovision relating to Director, that a Director is to be appointed for aperiiod of 5 years. It is also indicated in Clause 7 that such appointmentmay not exceed a second term of 5 years. It further makes it clear thatsearch process for the successor should commence two years before the end ofthe tenure of the Director. If the contention of the petitioner would beaccepted and the person would be appointed for a period of 2 years, theInstitute would be required to be on the lookout for another Directorsimultaneously with the appointment of a Director for a period of 2 years asClause 7 itself contemplates that search process for the successor shouldcommence before the end of two years of the tenure of the Director. It is nodoubt true that Rule 5 contemplates the age of retirement at 60 and extensioncan be upto the age of 65 with each contract not exceeding two years.However, such general provision has to give way to the specific provisioncontained in Clause 7 of the Amended Trust Deed.6. The specific provisionrelating to Director as a later clause is required to be considered andfollowed so far as the appointment of Director is concerned and the generalprovisions contained in the earlier Rule relating to appointment will not beapplicable to the appointment of Director, which is specifically governedunder Clause 7 of the amended Trust Deed.

7. Learned counsel for the petitioner has also contended that

7. Learned counsel for the petitioner has also contended that since the search committee had recommended that the Director should beappointed for a period of two years, while accepting the recommendation of thesearch committee, the Governing Council should not have deviated from therecommendation by recommending appointment for a period of 5 years. Thissubmission is without any basis as it is not disputed that it is the GoverningCouncil which is to take a decision in the matter and the report of the SearchCommittee is merely a recommendatory in nature.

8. Since I am not inclined to accept the basic submission raised by the learned counsel for the petitioner, the writ petition is liableto be dismissed. In such view of the matter, the question regardingmaintainability of the writ petition is not necessary to be decided.The writ petition is accordingly dismissed. However, there would be no order as to costs. consequently, W.M.P.NO.18102 of 1999 is closed.

Index : YesInternet : Yesodpk

To

1. Madras Institute ofDevelopment Studies,Rep. by its Chairman,79, Second Main Road,Gandhi Nagar, Adyar,Chennai 20.

2. Prof.V.K. Natraj,Director,Madras Institute ofDevelopment Studies,79, Second Main Road,Gandhi Nagar, Adyar,Chennai 20.

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