Madras High Court
Dr. P. Leela vs The Director Of Collegiate Education ... on 25 February, 1999
Equivalent citations: (1999)2MLJ530
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. Petitioner seeks a writ of certiorarified mandamus, calling for the records relating to the proceedings of the 4th respondent, dated 10.7.1991, made in Na.Ka. No. 4031/91-92 and to quash the same and consequently to forbear the 4th respondent from reverting the petitioner from the post of Principal of the 4th respondent-college.
2. Facts in brief are:
The petitioner was working as Senior Grade Lecturer (Tamil) from 22.6.1964 in the 4th respondent-college, which is getting aid and grant from the Government and affiliated to the Bharathidasan University, 3rd respondent herein, and governed by the provisions of the Tamil Nadu Private Colleges (Regulations) Act, 1976 (hereinafter referred to as 'the Private College Act'). The petitioner was promoted and appointed as Principal of the 4th respondent-college, with effect from 31.5.1990. The appointment of the petitioner as Principal of the 4th respondent-college was duly got approved by the competent authorities, viz., Respondents 1 to 3. The petitioner, in her personal capacity, wrote a letter dated 4.4.1991, to the Head of the Adheenam, complaining that she was not getting adequate help from the Management of the 4th respondent-college to improve the standard of the institution and that if she could not get adequate help to improve standard of the institution, she had no option but to quit the services by offering voluntary retirement. However, by letter dated 21.5.1991, the petitioner requested the Management not to act upon her earlier letter dated 4.4.1991. Thereafter, by letter dated 2.6.1991, the petitioner had applied for 20 days leave from 3.6.1991 onwards. In the meantime, the Management of the 4th respondent-college, by its pro-ceedings dated 5.6.1991, appointed one Mr. R. Selvaganapathy as Principal (Incharge) of the 4th respondent-college and relieved the petitioner from the post of Principal, and by the very same proceedings, the petitioner was permitted to retire from service, with effect from 3.7.1991, of course, subject to the approval of the competent authorities, by treating the petitioner's letter dated 4.4.1991 as her letter of voluntary retirement. Even though, after the expiry of the leave period of 20 days, the petitioner joined for duty on 22.6.1991 to take charge as Principal of the 4th respondent-college, by letter dated 22.6.1991, the petitioner was called upon to explain as to why she did not hand over the charge to the new incumbent before proceeding on leave. However, the 2nd respondent, by letter dated 2.7.1991, informed the Management of the 4th respondent-college, that the petitioner's letter dated 4.4.1991 could not be treated as her letter of voluntary retirement and requested the Management to permit the petitioner to continue as the Principal of the 4th respondent-college. But the 4th respondent-college, by the impugned proceedings, dated 10.7.1991, made with reference to the resolution dated 9.7.1991 of the Educational Committee of the 4th respondent-Adheenam, reverted the petitioner to the post of Senior Grade Lecturer in Tamil, and further directed the petitioner to handover the charge of the Principal to the new incumbent, who would be entitled for the salary for the post of the Principal only subject to the approval of the competent authorities.
3. Mr. K. Chandru, learned senior counsel for the petitioner, contends that since the 4th respondent-college is not a minority institution and governed by the Private Colleges Act, the College Committee alone is competent to exercise the powers of the Educational Agency to appoint teachers and therefore, the impugned proceedings being passed with reference to the resolution dated 9.7.1991 the same is wholly without any jurisdiction. Mr. K. Chandru, by placing reliance on the decision in The Ayya Nadar Janaki Ammal College etc. Sivakasi v. A. Pandian and Ors. (1996) 2 M.L.J. 345 : 1996 W.L.R. 521, as confirmed by a Division Bench of this Court, reported in 7997 W.L.R. 629. contends that the impugned proceedings dated 10.7.1997, is void ab initio for want of prior approval of the competent authorities as contemplated under Section 19(1) of the Private Colleges Act; albeit the impugned proceedings had been stayed by this Court by order dated 25.7.1991 in W.M.P. No. 15521 of 1991, the petitioner was not restored to the post of Principal of the 4th respondent-college; but, unfortunately, during the pendency of the above writ petition, the petitioner attained the age of superannuation and retired; since the very order of reversion is without jurisdiction and void ab initio for want of prior approval of the competent authorities as contemplated under Section 19(1) of the Private Colleges Act. the petitioner is entitled to claim all retiremental service benefits, payable to the post of the principal, in terms of monetary compensation not only till her age of superannuation as per the decision of this Court, dated 21.8.1992 in Dr. T.C.A.G. Nagarajan v. Salem Sowdeswari College, represented by its Correspondent and Secretary, made in W.P. No. 14681 of 1990, as confirmed by a Division Bench of this Court by order made in Salem Sowdeswari College represented by its Correspondent and Secretary v. Dr. T.C.A.G. Nagarajan W.A. No. 1262 of 1992 but also till the end of the academic year in which she had attained her age of superannuation as per the decision of this Court made in Sundaram v. The Secretary, C.S.I. Diocese of Madras and Ors., made in W.A. Nos. 1179 of 1993 etc.
4. Per contra, Mr. K. Chandrasekaran, learned Counsel for the 4th respondent-college, placing reliance on the counter-affidavit, contends that above writ petition is not maintainable as the petitioner had failed to avail the statutory alternative remedy of appeal under Section 20 of the Private Colleges Act; the impugned proceedings dated 10.7.1991 does not in any way violate or offend Section 19(1) of the Private Colleges Act as the reversion of the petitioner from the post of Principal to the post of Senior Grade Lecturer in Tamil and the consequential appointment of R. Selvaganapathy as Principal (Incharge) was made only in the interest of the 4th respondent-college and on account of urgency in the matter and subject to the approval of the competent authorities.
5. By way of reply, Mr. K. Chandru contends that the jurisdiction, of this Court under Article 226 of the Constitution being an extraordinary jurisdiction, the Court is conferred with discretionary powers either to entertain a writ petition or to reject the same, directing the petitioner to avail the statutory alternative remedy, if any, provided under the statute and it is not for the respondents to contend that the above writ petition is not maintainable merely because the petitioner had failed to avail the statutory alternative remedy of filing an appeal under Section 20 of the Private Colleges Act, especially when the impugned proceedings is wholly without jurisdiction and void ab initio for want of prior approval as contemplated under Section 19(1) of the Private Colleges Act. In this connection Mr. K. Chandru invited my attention to the decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. and also the decision of this Court made in The Manager and Correspondent, B. Subbarayan Middle School v. The Chief Educational Officer, Madras District, Madras and others W.P. No. 12235 of 1992.
6.I have given my careful consideration to the submissions of both sides.
7. In the light of the contentions and rival contentions, the issues that arise for my consideration are:
(I) Whether the above writ petition is maintainable in law in view of the statutory alternative remedy available under Section 20 of the Private Colleges Act?
(II) Whether the impugned proceedings dated 10.7.1991 suffers from want of jurisdiction?
(III) Whether the impugned proceedings is void in law?
(IV) What relief could be granted to the petitioner?
8. Issue Nos. I and II:
I. Whether the above writ petition is maintainable in law in view of the statutory alternative remedy available under Section 20 of the Private Colleges Act?
II. Whether the impugned proceedings dated 10.7.1991 suffers from want of jurisdiction?
In this regard, it is relevant to note the following provisos of the Private Colleges Act, 1976:
Section 2(2): "college committee", in relation to a private college, means the college committee referred to in Section 11: Section 11: Constitution of college committee: Every private college, not being a minority college, shall have a college committee which shall include the principal of the private college and two senior professors employed in the private college.
Section 14: Functions of the college committee and responsibility of educational agency under the Act: (1) Subject to the provisions of this Act and the rules made thereunder, the college committee shall have the following functions, namely;
(a) to carry on the general administration of the private college excluding the properties and funds of the private college;
(b) to appoint teachers and other persons of the private college, fix their pay and allowances and define their duties and the conditions of their services; and
(c) to take disciplinary action against teachers and other persons of the private college.
(2) The educational agency shall be bound by anything done by the college committee in the discharge of the functions of the committee under this Act.
(3) For the purposes of this Act, any decision or action taken by the college committee in respect of any matter over which the college committee has jurisdiction shall be deemed to be the decision or action taken by the educational agency.
Section 20: Appeals against orders of punishment imposed on teachers and other persons employed in private colleges: Any teacher or other person employed in any private college-
(a) who is dismissed, removed or reduced in rank or whose appointment is otherwise terminated; or
(b) whose pay or allowances or any of whose conditions of service are altered or interpreted to his disadvantage, by any order, may prefer an appeal against such order to such authority or officer as may be prescribed; and different authorities or officers may be prescribed for different classes of private colleges.
Explanation: In this section, the expression "order" includes any order made on or after the date of commencement of this Act in any disciplinary proceeding which was pending on that date.
9. Of course, Section 20 of the Private Colleges Act, as referred to above, provides a statutory appeal against the impugned order of reversion of the petitioner from the post of Principal to the post of Senior Grade Lecturer in Tamil. Admittedly, the impugned proceedings was passed with reference to the resolution of the Educational Committee, and not by the College Committee of the 4th respondent Adheenam. A plain reading of Section 2(2) read with Sections 11 and 14, referred to above of the Private Colleges Act makes it clear that the college committee alone is competent to take appropriate decisions with regard to the appointment of teachers and other persons and the conditions of their service. Therefore, the impugned proceedings dated 10.7.1991 having been passed with reference to the resolution of the Educational Committee of the Adheenam is wholly without jurisdiction and hence, the same is non est in law as it suffers from jurisdictional error apparent on the face of the record.
10. In this connection, I am obliged to refer to the order, made in The Management and Correspondent, B. Subbarayan Middle School, Madras v. The Chief Educational Officer, Madras and Ors. W.P. No. 12235 of 1992, dated 19.8.1996, which arose under the provisions of the Tamil Nadu Private Schools (Regulation) Act, a statute in pari materia, wherein Shivaraj Patil, J. (as he then was), while dealing with the issue of availability of alternative statutory remedy, held as follows:
In the normal course, when an alternative remedy is available, this Court will be slow in entertaining the writ petition. It is the settled principle of law, that existence of alternative remedy is no bar to entertain a writ petition. It is a rule of prudence and not a rule of law. If the impugned orders are such on the face of them that they cannot be sustained and there are errors apparent on the face of the records, this Court is not precluded from entertaining the writ petition.
11. That apart, the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. , held as follows:
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy was been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
12. Since the impugned proceedings suffers from the jurisdictional error apparent on the face of the record and, therefore non est in law, by applying the ratio laid down in The Management and Correspondent, B. Subbarayan Middle School, Madras v. The Chief Educational Officer, Madras and Ors., made in W.P. No. 12235 of 1992 and Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. . I am satisfied that the above writ petition is maintainable under Article 226 of the Constitution of India despite the availability of the alternative statutory remedy under Section 20 of the Private Colleges Act and that the impugned proceedings dated 10.7.1991 is wholly without jurisdiction.
13. Issue No. 3:
Whether the impugned proceedings is void in law?
Section 19(1) of the Private Colleges Act, 1976, reads as follows:
Section 19: Dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private colleges: (1) Subject to any rule that may be made in this behalf, no teacher or other person employed in any private college shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority.
14. Section 19(1) of the Private Colleges Act, makes it clear that the prior approval of the competent authorities is a condition precedent to be complied with by the college committee as well as educational agency before taking any decision with regard to dismissing, removing or reducing in rank or suspending any teacher or person employed in private colleges. The mere fact that by the impugned proceedings the petitioner was reverted to the post of senior grade lecturer in Tamil and R. Selvaganapathy was temporarily appointed as Principal (Incharge) and that the new incumbent will be entitled for the salary payable to the post of principal subject to the approval by the competent authorities by itself would not qualify the requirement of the prior approval of the competent authorities as contemplated under Section 19(1) of the Private Colleges Act.
15. I am also obliged to refer to the decision of this Court in reported in The Ayya Nadar Janaki Ammal College, Sivakasi v. A. Pandian (1996) 2 M.L.J. 345 : 1996 W.L.R. 521, wherein this Court held as under:
On a perusal of Section 19, it is clear that except with the prior approval of the competent authority, there shall not be any removal, dismissal, or reduction in rank of any teacher or other persons employed in a private college or termination of their appointment. In other words, the prior approval of the competent authority is a sine qua non for the orders contemplated under Section 19 of the Act to take legal effect.
It is pertinent to note here, that the abovesaid decision was confirmed by a Division Bench of this Court, reported in 1997 W.L.R. 629. Therefore, I have no hesitation in holding that the impugned proceedings dated 10.7.1991 is wholly without jurisdiction for want of prior approval from the competent authorities as contemplated under Section 19(1) of the Private Colleges Act. Issue No. 3 is answered accordingly.
16. Issue No. 4: What relief could be granted to the petitioner? This Court, while admitting the above writ petition, by order dated 25.7.1991, also stayed the operation of the impugned proceedings by order dated 25.7.1991 in W.M.P. No. 15521 of 1991. But the 4th respondent did not comply with the same by restoring the petitioner to the post of Principal. Consequently, the petitioner could not function as Principal of the 4th respondent-college but retired as Senior Grade Lecturer in Tamil on attaining the age of superannuation during the pendency of the above writ petition. Learned Counsel for the 4th respondent contends that even assuming that the impugned proceedings is wholly without jurisdiction and void ab initio and liable to be quashed, no relief could be granted to the petitioner at this stage since the petitioner had already retired from service on attaining the age of superannuation. I am unable to countenance with such contention of the 4th respondent. This Court, by order made in Dr. T.C.A.G. Nagarajan v. Salem Sowdeswari College represented by its Correspondent and Secretary, made in W.P. No. 14681 of 1990, as confirmed by a Division Bench of this Court, by order dated 12.9.1997, in Salem Sowdeswari College v. Dr. T.C.A.G. Nagarajan, made in W.A. No. 1263 of 1992, held that even though a private college teacher could not be reinstated in service in spite of holding the order of termination passed against him as illegal for want of prior approval from the competent authorities as contemplated under Section 19(1) of the Private Colleges Act, as he had attained the age of superannuation and retired from service during the pendency of the writ petition, he would be still entitled to claim all attendant monetary benefits in terms of monetary consideration. The ratio laid down in the said decision squarely applies to the facts of the case in hand also. Therefore the petitioner is entitled to claim full emoluments due to her during the period for which she was unlawfully kept out of the office of the Principal of the 4th respondent-college in violation of Section 19(1) of the Private College Act, 1976, of course, after giving due credit and adjustment to the amount already paid to her as the Senior Grade Lecturer in Tamil till the date of her retirement on attaining the age of superannuation. That apart the petitioner is also entitled to claim all attendant benefits as the Principal of the 4th respondent-college till the end of the academic year in which she attained the age of superannuation as per the decision of the Division Bench of this Court made in Sundaram v. The Secretary, C.S.I. Diocese of Madras and Ors. W.A. No. 1179 of 1993, etc. dated 6.9.1994, wherein it is held as follows:
...the decision of the Management in declining to continue the teacher in question till the end of the academic year is not justified.... ....The Management shall pay the salary to all the teachers in question from the date of superannuation of each of the teachers till the end of that academic year in which they attained the age of superannuation, less the salary, if any, already paid for any part of the period. The State Government shall also sanction the salary bills prepared as directed above, and forward by the schools. The Management shall forward the pay bills within four weeks from today to the State Government.
17. Therefore, I am of the considered opinion that the petitioner is entitled to claim all attendant benefits in terms of monetary consideration due to her as the Principal of the 4th respondent-college not only till the date she attained the age of superannuation, after giving due credit and adjustment to the amount already paid to her as the Senior Grade Lecturer in Tamil, but also till the end of the academic year in which she attained the age of superannuation and retired. Accordingly, the respondents are directed to settle her dues, as stated above, within three months from the date of receipt of copy of this order.
18. In the result, the impugned proceedings dated 10.7.1991 is hereby quashed and the writ petition is allowed in terms as stated above with costs in the writ petition. The 4th respondent shall pay the cost of the writ petition. Counsel fee is fixed at Rs. 5,000.