Madras High Court
S.M.Sekkilar vs The Secretary To Govt. Of Tamilnadu on 3 June, 2014
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 03 .06.2014 CORAM: THE HON'BLE MR. JUSTICE S.MANIKUMAR W.P.No.12468 of 2007 (T) (O.A.No.1471 of 2003) S.M.Sekkilar .. Petitioner versus 1.The Secretary to Govt. of Tamilnadu, Higher Education Department, Fort St.George, Chennai 9. 2.The Director of Technical Education, Chennai 25 .. Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.1471 of 2003 for a direction to the 1st respondent to grant pay and allowances for the period of second and third years also for his Ph.D., completed under QIP, as the said period has been treated as 'On duty' as as Special Case and as the pay and allowances for the first year has been granted in G.O.Ms.No.374, Higher Education Department, dated 23.07.1998. For Petitioner : Mr.V.Sanjeevi For Respondents : Mr.L.S.M.Hasan Fizal Government Advocate O R D E R
At the time of filing the Original Application before the Tamilnadu Administrative Tribunal, Chennai, the applicant was aged 57 years and was employed as a Professor in Mechanical Engineering in Alagappa Chettiar College of Engineering and Technology, Karaikudi. During his tenure, Government of India have introduced Quality Improvement Programme, in short QIP, under which, the teaching staff of Government Technical Colleges were selected on their applications and deputed to Ph.D., studies.
2. As per the information brochure issued by the All India Counsel for Technical Education, New Delhi, candidates selected for Ph.D., programmes under QIP, should execute a bond, undertaking to serve the parent institution / department, for a period of three years, after the completion of the Programme.
3. While the petitioner was working as an Assistant Professor in Mechanical Engineering in Government College of Engineering and Technology, Tirunelveli, he submitted an application. In the said application, the Head of the Department/Institution Head, should sign, stating that the candidate would be deputed for three years. Application form, without the signature of the abovesaid person would be rejected.
4. The applicant was selected for pre-registration work for a period of 60 days and deputed to PSG College of Engineering and Technology, Coimbatore. He completed the pre-registration work connected with the Ph.D., Programme under QIP on 22.06.1996. During the abovesaid period, he was treated as, on-duty and paid T.A., D.A., and regular pay and allowances. The said pre-registration should be done in the academic year, just prior to the full time admission. According to the applicant, pre-registration programme, was during 1995-96. Therefore, he has contended that QIP has stated in the year 1995 itself.
5. While that be so, vide proceedings No.118026/A4/96 dated 14.08.96, addressed to the Director of Technical Education, Chennai, the 2nd respondent, the applicant was transferred to PSG College of Engineering and Technology, Coimbatore for final admission to Ph.D., Programme, stating that, as per the Government letter dated 27.09.1995, the government servant should not be deputed for higher education, at the cost of the Government. The said communication was also sent to another candidate Thiru.Kandasamy, deputed to Anna University, Chennai, who had more than 10 years of service, after completion of Ph.D., Programme.
6. On receipt of the same, the applicant submitted a petition dated 10.10.1996 to the Secretary to the Government, Higher Education Department, Chennai, the 1st respondent and sought for permission, to continue his higher studies, under the scheme sponsored by Government of India. Another memo dated 20.01.1997, was issued by the Director of Technical Education, Chennai, the 2nd respondent, directing the applicant to be relieved and rejoin duty in the parent institution. A further direction was also issued not to claim salary from February 1997 onwards. However, the Secretary to the Government, Higher Education Department, Chennai, the 1st respondent issued G.O.Ms.No.374, Higher Education Department, dated 23.07.1998, treating the period of absence of the applicant and that of Thiru.Kandasamy, as 'on duty', as a special case. By the said Government order, pay and allowances for the further period of three years was directed to be given to Thiru.Kandasamy. But in the case of the applicant, pay and allowances, was ordered only for the 1st year of the Ph.D., programme, stating that the petitioner did not possess the required period of service i.e., thrice the period of study, after the completion of the programme. As the applicant was due to retire on attaining superannuation on 30.09.2003, the Government restricted the pay and allowances only, for one year.
7. Pursuant to the orders issued in G.O.Ms.No.374, Higher Education Department, dated 23.07.1998, the applicant could not claim for salary for the 2nd and 3rd year of the Ph.D., Programme. However, he continued his studies by meeting out the expenses from his personal savings. After completion of the course, he rejoined on 01.09.1999. He made an appeal on 09.09.1999, requesting the Government to grant pay and allowances, for the entire Ph.D., Programme, as a special case. Vide order dated 30.07.2001, the Secretary to the Government, Higher Education Department, the 1st respondent, rejected the request. Another request was made on 26.12.2002. As there was no reply, the applicant has preferred, O.A.No.1471 of 2003 on the file of the Tamilnadu Administrative Tribunal, Chennai, which has been transmitted to this Court and renumbered as W.P.No.12468 of 2007.
8. Taking this Court through the orders of the Director of Technical Education, Chennai dated 14.08.1996, by which the department has sponsored the petitioner to undergo Ph.D., studies in PSG College of Engineering and Technology, under QIP commencing from 1996-97, the relieving certificate dated 30.08.1997, issued by the Principal, Government College of Engineering and Technology, Tirunelveli, by which, the abovesaid authority has stated that the petitioner would be paid, normal salary along with admissible allowances in full, for a period of three years, and the further certificate to the effect, that the said period would be treated as 'on duty', Mr.Sanjeevi, learned counsel for the petitioner, submitted that having permitted the petitioner to join, the Ph.D., Programme, which is for three years, it is not open to the respondents to recall the decision, permitting him to undergo Ph.D., studies under QIP, commencing from 1996-97, at Government cost.
9. Inviting the attention of this Court to G.O.Ms.No.374, Higher Education Department, dated 23.07.1998,, learned counsel for the petitioner submitted that when Thiru.S.Kandasamy, allowed to undergo Ph.D., Programme, was directed to be paid, pay and allowances, for the entire three years programme, the same yardstick ought to have been applied to the case of the petitioner also. Whereas, the Government, have restricted the pay and allowances to be paid only for the 1st year of Ph.D., Programme, which according to the petitioner, is discretionary and violative of Article 14 of the Constitution of India.
10. It is his further contention that, the purpose of taking up the Ph.D., Programme was only for the benefit of the students, with the remaining period of service. It is the further contention of the petitioner that having deputed him, to undergo the programme, the Government is bound to pay the pay and allowances for the remaining period. According to him, the purpose of imposing the condition that the selected candidate must serve for a particular period, is that those who are benefited, under the scheme, with the educational expenses borne by the Government, should not leave the institution and ultimately, it should benefit the students. He further contended that at the time, when the respondents granted permission to the petitioner, to undergo the three year Ph.D., Programme, under QIP sponsored by the Government of India, they were aware of the fact that the petitioner, did not have nine years of service i.e., thrice the period of Ph.D., programme and still, they deputed the petitioner to undergo the course. Having allowed the petitioner to join the programme, they cannot at a later stage, deny the benefit of pay and allowances for the remaining two years programme. According to the learned counsel for the petitioner, the petitioner completed the course in 1999, and served the College, for five years, till he attained, the age of superannuation on 30.09.2003.
11. Learned counsel for the petitioner further submitted that as per the brochure to the application form, for admission to the Ph.D., programme, the applicant should execute a bond, undertaking to serve the parent institution, for minimum period of three years, after the completion of Ph.D., Programme under QIP, which the petitioner had, at the time of joining the programme. Despite the above said stipulation, under the programme, the State Government have refused the pay and allowances, for the 2nd and 3rd year of the Ph.D., Programme, on the grounds that he did not have the requisite period i.e., thrice the period of course (nine years), which according to the petitioner is contrary to the very scheme, introduced by the Government of India.
12. Per Contra, based on the counter affidavit and the typed set of papers, Mr.L.S.M.Hasan Fizal, learned counsel for the State submitted that in the year 1970, Government of India, in order to improve the quality and standards of technical education, instructed the State Governments to introduce the 'Quality Improvement Procedure (QIP). Under this scheme, teachers of Engineering Colleges were deputed to undertake research studies leading to the award of Ph.D., degree. During the period of deputation, they would be paid full pay and allowances, as admissible, treating the same as 'on duty'. The entire expenditure would be met by the State Government. However, before relieving himself/herself for deputation under QIP, the teacher has to execute a bond with such condition, as may be prescribed by the State Government, from time to time. The period of higher studies, normally permitted, was three years. As per the orders issued in G.O.Ms.No.40, Personnel and Administrative Reforms (FR.III) Department dated 22.01.1990, a teacher deputed for higher studies, within India, with full pay and allowances, should serve the parent department, for thrice the period of higher studies, that is 9 years. This practice was in vogue for a long period. When the petitioner, the then Assistant Professor of Mechanical Engineering in Government College of Engineering and Technology, Tirunelveli, was selected under QIP at PSG College of Engineering and Technology, Coimbatore, to pursue his higher studies and in pursuance of a letter dated 01.08.1996, requesting the Director of Technical Education, Chennai, the 2nd respondent, to relieve him, before 12.08.1996, to join the programme, the petitioner agreed to execute necessary bond to the Government. Accordingly, vide proceedings No.118026/A4/96, dated 14.08.1996, the Director of Technical Education, Chennai, the 2nd respondent issued necessary orders sponsoring the petitioner for QIP, for three years from 1996-1997 with full pay. However in the same proceedings, it was specifically mentioned that he should serve the department, for a period, equivalent to thrice the period of higher studies.
13. When the Principal, Government College of Engineering and Technology, Tirunelveli, relieved the petitioner on 13.08.1996 to join the QIP, again, in the relieving order, the Principal of the abovesaid College, indicated that the petitioner should execute a bond to serve the department for nine years. When the Director of Technical Education, Chennai, vide letter No.118026/AA/96-1, dated 14.08.1996, sent a proposal to the Government, vide letter No.48992/I.1/95-6 dated 11.09.1996, the Government pointed out an earlier instruction, issued in Government letter No.80360/Alls./95 dated 27.09.1995, wherein, the Government have ordered that the government servants should go on study leave, on their own cost. The letter dated 11.09.1996 further indicated that if the petitioner was not willing to bear his own cost, he may be recalled. Thereafter, the Director of Technical Education, Chennai, vide memorandum No.118026/A4/94 dated 02.10.1996, recalled the petitioner from higher studies and reposted him to Government College of Engineering and Technology, Tirunelveli. However, without getting himself relieved from the Programme, as per the orders of the Director of Technical Education, Chennai, the petitioner made a representation dated 10.10.1996, to the government, to permit him to continue the programme.
14. According to the respondents, even in the said letter dated 10.10.1996, the petitioner has made a clear mention, at the penultimate paragraph, that he would abide by the conditions. The respondents have further submitted that when the Director of Technical Education, Chennai, informed the Quality Improvement Programme centers, and the Principal of Government College of Engineering and Technology, Tirunelvei that the officer should be relieved immediately, from studies, failing, which pay and allowances from February 1997, whould not be claimed, the Principal, PSG College of Engineering and Technology, Coimbatore, relieved the petitioner on 04.02.1997. But the petitioner did not rejoin duty and he went on leave. The petitioner made representations to the Government, claiming salary from February 1997. The fact that he cannot serve the Government for nine years, after completing the QIP was also informed to the Government.
15. According to the respondents, the petitioner did not inform the department that he had only four years of remaining service, after completion of the programme. Though, he had reached the age of superannuation on 30.09.2003, he was sanctioned reemployment till the end of the academic year i.e., upto 31.05.2004. In so far as the condition mentioned in the brochure that he had to work only for three years, after the completion of the programme and not for nine years, the respondents have submitted that service conditions of the Government servants are regulated by rules or directions, issued from time to time, by the Government and the condition mentioned in the application, is not binding on the Government. The respondents have further contended that when the State Government bears the expenditure towards payment of salary, the Government servants are bound by the directions issued. Though, sponsorship of teachers under the programme, benefits the students, orders have been issued by the Government, imposing a condition that such sponsored candidates should serve the institution, thrice the period of study. According to the respondents, condition in the application form, cannot replace the orders, issued by the Government.
16. The respondents have further submitted that in the following references, the condition that the petitioner should serve the parent department, for thrice the period of higher studies, i.e., nine years, has been clearly mentioned.
(i)Director of Technical Education's sponsorship proceeding No.118026/A4/96 dated 14.08.1996.
(ii)In the bond obtained from him before relief for higher studies.
(iii)Relieving certificate issued by the Principal in reference NO.E(1)/3248/96 dated 30.08.1996.
(iv)After executing the bond for nine years and after joining the programme in the petitioner's letter dated 10.10.1996, he represented to the Government that he promises to abide by the bond conditions.
17. The respondents have further submitted that though for the remaining period of two years, pay and allowances was not paid, but the same was considered, as duty period for the purpose of terminal benefits. Lastly, they have submitted that even though, the petitioner attended the programme for three years, he was not successful in the Course, within the period.
18. They further submitted that Mr.Kandasamy had nine years of remaining service to the Government, after the completion of the course and that therefore, his case cannot be compared to that of the petitioner and hence, there is no violation of Article 14 of the Constitution of India. For the abovesaid reasons, the respondents prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
19. Condition No.2 of the information brochure states that the candidates selected for admission to Ph.D., Programme, his/her salary should be paid by the sponsoring institution and that he/she should execute a bond, undertaking to serve the parent institution for a minimum period of three years, after completion of the programme. There is also a forwarding note in the application to that extent, and it has to be signed by the Principal or the head of the institution.
20. Reading of the certificate issued by the Principal dated 25.06.1996, shows that the petitioner has completed the pre-registration work connected with the QIP on 22.06.1996, in the Department of Mechanical Engineering of PSG College of Technology, Coimbatore and that the certificate further reads that the petitioner is entitled to undertake the full time Ph.D., Programme, subject to rules and regulations.
21. The deputation order dated 14.08.1996, also states that before relieving the petitioner has to execute a bond in the prescribed format agreeing to serve the parent department as per the conditions stipulated in G.O.Ms.No.40, PA&R (FR.III) Department dated 22.01.1990. One of the conditions in the said Government order is that the deputationist should serve the period equivalent to three times to the period of higher studies. The relieving order dated 30.08.1996, reads as follows;
This is to certify that Thiru.S.M.Sekkilar, Assistant Professor of Mechanical Engineering, Government College of Engineering, Tirunelveli, is hereby relieved with effect from 30.08.1996 AN to join the Ph.D., Programme under Quality Improvement Programme at PSG College of Technology, Coimbatore for a period of three years.
During the abovesaid period of his stay, the candidate will be paid his normal salary along with admissible allowances in full. This period will be counted as being 'ON DUTY'.
Thiru.S.M.Sekkilar, Assistant Professor of Mechanical Engineering has executed a bond to serve this department for a period of nine years i.e., thrice the period of his higher studies, i.e., from completion of his programme of study.
22. Subsequently, when the abovesaid Government order was brought to the notice of the department, vide letter dated 11.09.1996, the Joint Secretary to the Government, Education, Science and Technology (I.1), Department, Chennai has issued a letter to the Director of Technical Education, Chennai, the 2nd respondent, stating that the Government have already issued instructions in their letter No.80360/Fin/Allow/95 dated 27.09.1995, regarding the procedure for sending a person for higher studies, wherein, it has been clearly mentioned that if an employee wants to acquire Ph.D., degree / diploma, he should go on study leave, at his own cost and that the staff undergoing Ph.D., programme, should have applied for study leave, to qualify themselves. If unwilling, they should be recalled. Explanation has also been sought for, from the Director of Technical Education, Chennai, as to why he had not followed the instructions, issued in the Government Letter dated 27.09.1995.
23. Pursuant to the same, the Director of Technical Education, Chennai, the 2nd respondent has issued a memo dated 02.10.1996 recalling the petitioner from higher studies, and reposted him as Assistant Professor, Mechanical Engineering Department, Government College of Engineering, Tirunelveli. He has further directed him, to rejoin forthwith, on or before 14.10.1996. Thereafter, on the requisition of the petitioner, as well as that of Mr.Kandasamy, Senior Lecturer in Civil Engineering, the Government have issued orders in G.O.Ms.No.374, Higher Education Department, dated 23.07.1998, permitting continuation of their studies, as a special case, by ordering as follows:
5. Tvl.S.Kandasamy and S.M.Sekkilar have represented the Government that as they have already completed the pre-registration period successfully and have completed one hear of research studies, they may be allowed to complete their higher studies. As per bond condition a teacher has to serve the Government i.e. Thrice the period of Training and Studies in his sponsoring Department after securing Ph.D. But Thiru.S.Sekkilar is not having requisite period of service after completion of higher studies as his date of retirement is 30.09.2003. The Director of Technical Education has reported that the total financial commitment to the Government will be Rs.8.60 lakshs approximately if both Thiru S.M.Sekkilar and Thiru S.Kandasamy are allowed to continue their Ph.D., Programme.
6. The Government have examined the above issues carefully and pass the following orders:-
(1)As the period of absence of the teachers who were deputed under the Quality Improvement Programme for higher studies during the period from 1990-91 to 1996-97 do attract the provisions either under Rule 84 of the Fundamental Rules or Rule 19 of the Study Leave Rules, their period of absence shall be treated as 'on duty' as a special case.
(2)The pay and allowancesof Thiru.S.Kandasamy, Senior Lecture/Civil Engineering who was deputed by the Director of Technical Education for research studies under Quality Improvement Programme for a period of three years shall be borne by the Government. The pay and allowances of Thiru.S.M.Sikkilar, Assistant Professor / Mechanical deputed for research studies under the above programme shall be borne by the Government for the first year of his Ph.D., studies alone.
24. Reading of the above, makes it clear that in so far as the case of Mr.S.Kandasamy, is concerned, he had thrice the period of training and studies, to serve the department, after acquiring Ph.D. But the petitioner did not have the requisite period. The financial commitment for the Government, for the study programmes undertaken by the abovesaid two teachers, at the relevant point of time was Rs.8.6 Lakhs.
25. Though, the learned counsel for the petitioner contended that the respondents were very well aware of the Government instructions dated 27.09.1995 and further contended that the stipulation contained in the admission brochure i.e., it is suffice to serve the parent institution for three years, after the completion of the Ph.D., programme and also made submissions to that effect that on completion of the programme, the petitioner had worked in the Government for five years, since 1999, on completion of QIP programme and therefore, the respondents are bound to grant pay and allowances for the remaining period, 2nd and 3rd year, this Court is not inclined to accept the said contention for the reason, that as rightly contended by the learned counsel for the respondents that the prospectus, for admission to Ph.D., Programme under QIP, sponsored scheme of the government cannot be construed to automatically be incorporated in the service rules or directions or regulations, issued from time to time, which have a binding force. Direction issued by the Government, would have a binding force, moreso, when the Government is burdened with expenditure.
26. It could be deduced from the counter affidavit of the respondents that when substantial amount is spent on the government servants, for acquiring higher education, ultimately, the students should be benefited for a longer period and that is why, the government seemed to have prescribed, nine years, as the period of service, on completion of Ph.D., programme. Conditions in the admission brochure, though claimed to be in favour of the petitioner, still, as rightly contended by the Government, it would not replace the rules and regulations or directions issued by the Government from time to time. Admittedly, G.O.Ms.No.374, Higher Education Department dated 23.07.1998, restricting pay and allowances, only for the first year alone, has not been challenged. Mandamus sought for, in effect is to quash the said Government order, in so far as it restricts the period and to extend the same, for the entire period of study.
27. Though, the learned counsel for the petitioner has contended that the respondents were very well aware of the instructions of the instructions issued in Government letter No.80360/Alls./95 dated 27.09.1995, but at the same time, omission to notice, the same by the Director of Technical Education, Chennai, the 2nd respondent, herein, should not be taken advantage by the petitioner, to cause financial burden on the State Government, to bear the cost of study.
28. Application made by the petitioner to pursue higher education on his own, cannot be construed that he was chosen by the Government, for the course of study. It is the petitioner who had applied to study a Ph.D., programme and in normal circumstances, he has to bear his own cost, as per the Government instructions dated 27.09.1995. That is evident from the letter dated 12.05.1995 of the Principal, PSG Collegeof Technology, Coimbatore addressed to the Principal, Government College of Engineering, Tirunelveli, wherein, the said authority has stated that Mr.S.M.Sekkilar, Assistant Professor, Mechanical Engineering Department, of Government College of Engineering, Tirunelveli, has been selected for advance admission to Ph.D., programme under QIP, in the said college in Coimbatore. Even in the certificate dated 25.06.1996 of the Principal, PSG College of Technology, it is also made clear that the full time Ph.D., programme, is subject to the appropriate rules and regulations. When the respondents have reiterated that the deputation would be subject to rules and regulations, it is implied that directions issued from time to time, would continue to operate, and they cannot be ignored.
29. Though the learned counsel for the petitioner has also contended that on completion of three year Ph.D., programme, the petitioner had served the department for five years, and that therefore, the qualifications acquired was fully utilised by the Government, and benefited the students, and that therefore, the petitioner ought to have been paid pay and allowances for the 2nd and 3rd year course, this Court is not inclined to accept the said contentions. One of the conditions for admission of the sponsored candidates is that he or she should execute a bond undertaking to serve the parent institution for a minimum period of three years, after the completion of the programme. Merely because the Government of India, had prescribed a minimum period of service, after the completion of the programme, it cannot be said that the State Government's instructions, regarding the maximum period of service, after completion of the programme, is automatically nullified. What is stated in the prospectus is only a minimum period. The State Government's instructions would continue to be in force. As per the Government letter, the minimum years of service, which he or she has to serve the parent institution, for the purpose of getting the pay and allowances, is nine years, which admittedly, the petitioner did not have, at the time when he made his request, to the respondents, to relieve him to join the course. Knowing fully well that he did not have nine years of service, the petitioner had executed a bond to the Government and blamed the respondents. The petitioner having enjoyed the benefits of leave and salary for the first year, cannot compel the Government that he should be paid the pay and allowances for the second and third year also, without satisfying the requirement of the period of service, i.e., for nine years after the completion of the course. As pointed out, the case of Mr.Kandasamy is different, as he had nine years of remaining service. There is no violation of Article 14 of the Constitution of India. There is no manifest, illegality in denying the claim of the petitioner. Mandamus sought for cannot be issued. That apart, it would have the effect S. MANIKUMAR, J.
ars of quashing G.O.Ms.No.374, Higher Education Department, dated 23.07.1998, restricting the period of payment, without there being any challenge. Hence the writ petition is dismissed. No costs.
03.06.2014 Index: Yes Internet: Yes ars To
1. The Secretary to Govt. of Tamilnadu, Higher Education Department,Fort St.George, Chennai 9.
2. The Director of Technical Education, Chennai 25
W.P.No.12468 of 2007 (T)