Madras High Court
Dr.S.Sukumaran vs The State Of Tamilnadu on 11 June, 2012
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.6.2012
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
WRIT PETITION NO.11512 of 2012
AND
M.P.No.1 of 2012
DR.S.SUKUMARAN ... Petitioner
Vs
1 THE STATE OF TAMILNADU
REP. BY ITS SECRETARY
HIGHER EDUCATION
FORT ST. GEORGE
CHENNAI-600 009.
2 THE DIRECTOR OF COLLEGIATE
EDUCATION
COLLEGE ROAD
CHENNAI-600 006.
3 THE JOINT DIRECTOR OF
COLLEGIATE EDUCATION
TIRUNELVELI REGION
TIRUNELVELI-627 002.
4 THE NESAMONY MEMORIAL
CHRISTIAN COLLEGE
REP. BY ITS CORRESPONDENT AND SECRETARY
MARTHANDAM
KANYAKUMARI DISTRICT-629 165. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the second respondent to approve the petitioner's appointment as lecturer in Botany in the fourth respondent-college with effect from 16.06.2008 with all monetary benefits, in the light of the order dated 18.01.2010 passed by this Court in W.P.No.23539 of 2009.
For Petitioner : Mr.N. Rajan
For Respondents : Mr.V. Subbiah, Spl.G.P.
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O R D E R
The prayer in the writ petition is to issue a Writ of Mandamus directing the second respondent to approve the petitioner's appointment as Lecturer in Botany in the fourth respondent-college with effect from 16.06.2008 with all monetary benefits, in the light of the order made in W.P.No.23539 of 2009, dated 18.01.2010.
2. The case of the petitioner is that he was appointed as Lecturer in the department of Botany in the fourth respondent aided minority college. The petitioner passed M.Sc., and M.Phil degrees with First Class. The petitioner also passed Doctor of Philosophy from Manonmaniam Sundaranar University in March, 2004. He was initially appointed as Lecturer in the Department of Botany (Self Finance course) in the fourth respondent-college on 13.9.2006. Thereafter, aided vacancy arose in the fourth respondent-college due to retirement of one D.Christian Babu and in the said aided vacancy, the petitioner was appointed by the fourth respondent-college, which is a sanctioned post. The number of sanctioned posts available in the Department of Botany is six. The said fact is established by the second respondent, by order dated 18.5.2000 and thereafter, there was no reduction of students strength and no further staff fixation was also made by the department till date.
3. On 14.9.2009, the petitioner sent a representation to the second respondent to approve the appointment of the petitioner with effect from 16.6.2008 and the management of the fourth respondent-college also submitted the proposal seeking approval. The petitioner again submitted another representation on 8.10.2009 and prayed for approval so as to enable the petitioner to get his salary. The second respondent having failed to take any action, the petitioner filed W.P.No.23539 of 2009 before this Court and prayed for a direction to approve the petitioner's appointment as Lecturer in Botany in the fourth respondent-college with effect from 16.6.2008, with all monetary benefits. This Court, by order dated 18.1.2010 directed the respondents to verify the strength particulars and pass orders.
4. The said order was not obeyed by the second respondent and the petitioner submitted a representation under the RTI, for which a reply was given to the petitioner stating that as against the order passed by this Court on 18.1.2010, the writ appeal is filed.
5. The learned counsel for the petitioner submitted that no writ appeal is filed and no notice was served on the petitioner till date and the matter in issue is already covered by the judgment of the Division Bench in Writ Appeal Nos.92 and 93 of 2008, dated 6.1.2010, which was followed by me in W.P.No.19715 of 2009, dated 31.3.2011 and the recent Division Bench judgment made in Writ Appeal No.2345 of 2011, dated 5.3.2012.
6. The learned counsel further submitted that the petitioner having been appointed in the sanctioned vacancy in private minority aided college, in a retirement vacancy from 16.6.2008 and he being fully qualified for being appointed as Lecturer in the department of Botany as per the Tamil Nadu Private Colleges (Regulation) Act and Rules, 1976, the University can verify the qualifications of the petitioner and the fourth respondent college being a minority college, there is no need to get permission to fill up the post in terms of Rule 11 (1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976. The learned counsel also submitted that the matter in issue being covered by the judgment, the second respondent cannot contend that the earlier order dated 18.1.2010 is challenged in writ appeal and in fact, no writ appeal is filed or pending.
7. When the writ petition was posted for admission on 24.4.2012, the learned Special Government Pleader was directed to take notice for the respondents and verify whether the matter is covered by the judgment or not and he was also directed to get instructions as to whether any writ appeal is pending as against the order dated 18.1.2010. The learned Special Government Pleader submitted that the writ appeal was filed with condone delay petition and the same is pending in SR stage only.
8. I have considered the rival submissions made by the learned counsel on either side.
9. The point arises for consideration in this writ petition is as to whether the petitioner is entitled to get his appointment approved from the second respondent as he is appointed in a sanctioned post in the fourth respondent aided minority college, in a retirement vacancy. The retirement vacancy arose on 31.5.2008. The fact about the availability of the post in the fourth respondent-college as per the staff fixation order is not in dispute and the same is also not the contention raised by the second respondent in the reply to the RTI query. The petitioner having been appointed in a sanctioned post of the fourth respondent-college and the fourth respondent-college being a minority college, there is no necessity to get prior permission from the department and the said issue was considered by me in detail in W.P.No.19715 of 2009, dated 31.3.2011 and a direction was issued to approve the appointment of the petitioner following the Division Bench judgments. In the recent Division Bench judgment in W.A.No.2345 of 2011, dated 5.3.2012 also, same view is taken.
10. Applying the above judgments to the facts of this case, the writ petition is allowed with a direction to the second respondent to approve the appointment of the petitioner as Lecturer in the department of Botany from 16.6.2008 and to pay the salary and other benefits from 16.6.2008 to the petitioner, within a period of three months from the date of receipt of a copy of this order. While approving the appointment, it is open to the second respondent to verify the qualifications possessed by the petitioner as to whether the qualification possessed by the petitioner is sufficient for the post or not. No costs. Consequently, connected miscellaneous petition is closed.
To 1 THE STATE OF TAMILNADU REP. BY ITS SECRETARY HIGHER EDUCATION FORT ST. GEORGE CHENNAI-600 009.
2 THE DIRECTOR OF COLLEGIATE EDUCATION COLLEGE ROAD CHENNAI-600 006.
3 THE JOINT DIRECTOR OF COLLEGIATE EDUCATION TIRUNELVELI REGION TIRUNELVELI-627 002.
4 THE NESAMONY MEMORIAL CHRISTIAN COLLEGE REP. BY ITS CORRESPONDENT AND SECRETARY MARTHANDAM KANYAKUMARI DISTRICT 629 165