Madras High Court
S.Kuppusamy vs The Director Of Collegiate Education on 8 December, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/12/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.7082 of 2011 and M.P.(MD)No.1 of 2011 S.Kuppusamy .. Petitioner Vs. 1.The Director of Collegiate Education, College Road, Nungambakkam, Chennai-600 006. 2.The Joint Director of Collegiate Education, Tiruchirappalli Region, Theppakulam, Tiruchirapalli. 3.The Secretary St. Joseph's College (Autonomous), Tiruchirappalli. 4.S.Ruban Raj .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the second respondent from approving the appointment of the fourth respondent as Head of the Department, Department of Mathematics in the third respondent college and direct the third respondent to appoint the petitioner as the Head of Department, Department of Mathematics in the third respondent college as per G.O.Ms.No.1785, dated 05.12.1988, Education Department. !For Petitioner ... Mr.T.V.Sivakumar ^For Respondents... Mr.M.Govindan, Spl.G.P. for RR1 and 2 Mr.Isaac Mohanlal for R-3 Ms.P.Malini for R-4 - - - - :ORDER
The petitioner who was an Associate Professor in the Department of Maths in the third respondent college, on retirement of one Mr.R.Lawrence Joseph Manoharan as the Head of the Department of Maths on 31.5.2011, sent an application dated 10.6.2011 to designate him as the Head of the Department of Maths being the senior most person in the department and by virtue of G.O.Ms.No.1785, Education Department, dated 05.12.1988. He also sent a similar letter to the first respondent the Director of Collegiate Education, Chennai. When he did not get any reply and when he found that the fourth respondent was designated as the Head of the Department by the third respondent, he has filed the present writ petition.
2.The prayer in the writ petition is for to forbear the second respondent, i.e. the Joint Director of Collegiate Education, Tiruchirappalli Region from approving the appointment of the fourth respondent as the Head of the Department of Maths in the third respondent college and for a direction to the third respondent to appoint him as the Head of the Department.
3.When the writ petition came up on 30.6.2011, notice regarding admission was ordered. The respondents have been served. The third respondent has filed a counter affidavit, dated 17.10.2011. In the counter affidavit the circumstances by which the fourth respondent was appointed and also the reason for denying the petitioner that status and the reason for not following the earlier order passed by this court in similar circumstances are set out, which reads as follows:
"17....the GO vesting the authority to designate the Heads of Departments with the Director of Collegiate Education is obviously intended for Government Colleges where he is the appointing authority. Applying the same to colleges like this respondent where the College Governing Board is the appointing authority is a direct interference in the internal administration of the Minority Educational institution. This is also now agitated in the above said under SLP(Civil)No.22808 and 22809 of 2011 now pending in the Hon'ble Supreme Court.
18....it is humbly submitted that this respondent invited service- particulars from the Associate Professors for designating the suitable person as the HOD vide Notice dated 01.06.2011. It was published in the Notice Board. The petitioner did not come forward with any particulars even after being reminded personally by this respondent. The 4th respondent Mr.S.Ruban Raj has the full qualification to be designated as the Head of the Department of Maths.
19....his claim for designation as the Head of the Department. His representation dated 10.06.2011 is only addressed to the Director of Collegiate Education. It is not addressed to this respondent.
20...The 4th respondent has been nominated as the Heads of Department considering his overall efficiency in matters of academy and administration. He has been functioning as the Head of Department since 10.06.2011."
4.The fourth respondent has filed a counter affidavit, dated 22.08.2011. In the counter affidavit, he had taken a similar stand as that of the college. However, this court is not inclined to accept the stand of the third and fourth respondents as the issue raised herein is no longer res integra. In respect of the very same college, when a similar issue came up in the department of Physics, the college came before this court challenging the G.O.Ms.No.1785, Education Department, dated 5.12.1988 insofar as it relates to paragraph 4(vii) in W.P.(MD)Nos.7188 of 2006 and 4882 of 2007. In paragraph 5 of the order, it was stated as follows:
"5....as per G.O.Ms.No.1785 Education Department, the Head of the Department of any private college including a minority College will have to be filled up only in the following manner:
"The Senior most person in the Department of College irrespective of his Ph.D. qualification will be nominated and designated as "Senior Lecturer/Selection Grade Lecturer / Reader and Head of Department" by the Director of Collegiate Education and that no special pay will be allowed to that post."
5.This court had rejected the case of the petitioner by an order dated 24.9.2007 and in paragraphs 7 and 14, it was observed as follows:
"7....This Court dealt with an identical situation in the judgment reported in 1998 (1) CTC 609 [Dr.Mrs.Shams v. The Commissioner of Collegiate Education, Madras and others] wherein it was held that enforcement of G.O.Ms.No.1785 Education Department dated 05.12.1988 is applicable to minority institutions also and this Court gave a direction to fill up the post on seniority basis. The above said matter was taken on appeal and the Division Bench by its judgment reported in 2001 (2) CTC 84 [The Principal and Secretary, Madras Christian College, Madras and another v. Dr. (Mrs.)Shams and another] dismissed the writ appeal and the relevant passages found in paragraphs 10 to 12 & 14 of the said judgment are usefully extracted below:
Para 10."From the above passage, it is clear that the scheme applies to the teachers of all Colleges either Government or aided in Tamil Nadu unless the individual college specifically exercises an option to remain out of the scheme as provided under the very same scheme. The scheme also directs that all the teachers appointed after the date from which the scheme has been given effect to will be governed by the provisions of the scheme.
Para 11:Under the scheme it is further provided that the senior most person in the Department of the College irrespective of his Ph.D qualification will be examined and designated as Senior Lecturer/ Selection Grade Lecturer/Reader and Head of Department by the Director of Collegiate Education that no special pay will be allowed to that post.
Para 12:Therefore, it is clear that the Head of the Department not being a promotion post, which does not carry a special pay, the senior most person in the department has to be nominated and designated as the Head of the Department. The first appellant college had admittedly subscribed itself to the scheme and had accepted the revision of pay scales in terms of the coverage prescribed under the scheme. There is no dispute in this respect that the entire college is receiving the grant as per the revised pay scales introduced by the said Government Order. Having accepted the said coverage and having subjected itself to the conditions stipulated in the scheme, it is too late for the first respondent to contend that such a condition will have no application at all not the appellant could avoid the compliance of the said scheme."
Para 14: "Therefore, in the light of the said pronouncement having accepted the grant subject to the conditions, and the post being only a designated one which has to be done by the Director of Collegiate Education, it follows that the first appellant herein is bound to follow the rule of seniority as has been ordered in this case. Hence, we do not find any infirmity in the order passed by the learned single Judge and we also hasten to add that it is unnecessary to go into any other contentions."
14.G.O.Ms.No.1785 was made pursuant to the Committee appointed by the University Grants commission, which is a body created in terms of Entry 66 List 1 Schedule 7 of the Constitution of India. University Grants Commission has to set co-ordination standards for institutions of higher learning. The University Grants Commission appointed committees, made several recommendations in respect of the college teachers all over India and the said recommendations were accepted by the Government of India. The opinion of the State Governments were also sought for and the State Government appointed a high level committee to go into the recommendations of the committee appointed by the University Grants Commission. It is pursuant to these recommendations, uniform pay scale and service conditions were created for affiliated college teachers all over India. It is only after getting the opinion of all concerned, the recommendations of the Committee were accepted by University Grants Commission in terms of scale of pay, nomenclature of teaching staff, Headship and other conditions of service. It is pursuant to the said exercise, G.O.Ms.No.1785 Education Department dated 05.12.1988 came to be issued,....."
6.Subsequently in respect of the Department of Commerce, when the same issue came up, a teacher, by name Dr.L.J.Chaarlas, came before this court in W.P.(MD)No.1989 of 2007. That writ petition was disposed of by an order dated 08.10.2007. It was observed in paragraphs 3 and 4 of the order as follows:
"3.The State Government accepted the UGC recommendations and ordered G.O.Ms.No.1785/Edn. (H3) dated 05.12.1988 and revised the scale of pay of all the teachers working in the affiliated colleges. The said order of the Government not only prescribes scales of pay, it also got code of Ethics for the teachers as well as the mode and method of filling up the post of Head of Department.
4.Under the Government order it is seen that the senior most selection grade teacher holding as Selection Grade lecturer post will be designated as head of department. In case of any dispute the Director of College education was empowered to resolve the said dispute. The very same third respondent management knowing that the said government order is binding on them, filed a writ petition being W.P.No.7188 of 2006 and challenged the said Government Order. This Court after elaborate arguments dismissed the writ petition. The Court also rejected the contention that the said Government Order will not apply to private colleges. On the other hand, this court in the aforesaid judgment held that this order was regulating in nature. The devoid of Head of Department slip to a senior most teacher would amount to defame him. The Government Order is not ultravires of Article 30(1) of the Constitution."
7.Both orders were taken on appeal by the College in The Secretary, St. Joseph's College (Autonomous), Tiruchirapalli Vs. The State of Tamil Nadu and others in W.A.(MD)Nos.649 and 650 of 2007 and 172 of 2008 (reported in 2011 Writ L.R. 308). They were disposed of by a division bench by a common order dated 23.2.2011. The division bench had rejected the case of the college and in paragraphs 15 and 16, it had held as follows:
"15.In this case, as noticed by us, the impugned Government Order is recognising the right of a seniormost person in the department to be nominated and designated as Seniormost Lecturer/Selection Grade Lecturer/Reader/Head of the Department. It is undoubtedly a condition of service to persons, who are in service in the minority college and in other words, it is recognition of right to the staff serving in the very same minority college to enjoy certain status without any monitory benefit. The impugned order was issued by the Government to prevent maladministration and it is intended to promote the excellence of education of the minority college itself. Therefore, it is only regulatory in nature and not in any way interference with the rights of the minority management.
16.The learned counsel for the appellant submitted that the HOD is to be involved in academic matters including decision making. Merely because the seniormost person is designated as HOD/Seniormost Lecturer/Selection Grade Lecturer/Reader, the management is not prevented from getting the views of other staff members regarding any aspect including academic matters and the collective view of the staff shall be taken into consideration without depending upon the view expressed by the HOD/Seniormost person."
8.Though the management claims that they have gone to the Supreme Court against the said order in SLP(Civil) No.22808 and 22809 of 2011, they have not mentioned about any interim order being obtained in the Supreme Court. In any event, this court as well as the division bench essentially had dealt with the scope of minority right under Article 30(1) of the Constitution and that the senior most person in the department being redesignated as the HOD was not violative of Article 30(1). It is rather unfortunate that the college should again and again file such writ petitions and allow the teachers to come to this court without adhering to the precedent set up by this court. Therefore, this court is not only constrained to mould the relief in favour of the petitioner and give positive direction to the management, but also to impose cost on the management for their conduct in repeatedly raising similar issue.
9.It must also be noted that an identical prayer had been rejected in respect of an another minority institution which is also an autonomous college in The Principal and Secretary, Madras Christian College, Madras and another V. Dr.(Mrs.)Shams and another reported in 2001 (2) CTC 84 (cited supra). There must be limit in such litigation. Under these circumstances, instead of directing the first and second respondents to give direction to the third respondent college, since the third respondent college also states that no direction can be given by the Director of the Collegiate Education as he only governed the Government college, this court in exercise of power under Article 226 is constrained to issue a mandamus directing the third respondent to redesignate the petitioner as the Head of the Department of Maths forthwith in the place of the fourth respondent.
10.This writ petition is allowed with the above directions. The third respondent college is hereby directed to pay Rs.5000/- (Rupees five thousand only) as cost to the writ petitioner. Consequently connected miscellaneous petition stands closed.
vvk To
1.The Director of Collegiate Education, College Road, Nungambakkam, Chennai-600 006.
2.The Joint Director of Collegiate Education, Tiruchirappalli Region, Theppakulam, Tiruchirapalli.