Madras High Court
R.Vimala vs The Directorate Of Collegiate ... on 11 January, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.01.2013 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.24742 of 2012 and M.P.No.1 of 2012 1.R.Vimala 2.G.Rameshkannan 3.Dr.R.Murugan 4.C.Sundaramoorthy 5.Dr.D.Sheela 6.Dr.P.Annadurai 7.K.Bhuvaneswari 8.R.Vimala Devi 9.M.Sivasankari .. Petitioners Vs. 1.The Directorate of Collegiate Education, Department of Higher Education, 9th Floor, EVK Sampath Buildings, College Road, Chennai-600 006. 2.Pachaiyappa's Trust Board, rep by its Secretary / President, Poonamallee High Road, Aminjikarai, Chennai-600 030. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to initiate the recruitment process for filling up the posts of Assistant Professors / Director of Physical Education / Librarian sanctioned by the 1st respondent and notified by the second respondent as per the details of vacancies, department wise, set out in the prospectus issued by the 2nd respondent dated 19.12.2010 and consequently to direct the 2nd respondent to appoint the petitioners who are fully qualified as per the University Grants Commission Regulations, 2009 guidelines as lecturers in the 6 colleges run by the 2nd respondent on a permanent basis within a time frame to be fixed by the court. For Petitioner : Ms.Kavitha Deenadayalan For Respondents : Mr.V.Subbiah, Spl.G.P. For R-1 Mr.M.Devendran for R-2 - - - - ORDER
This writ petition is filed by the petitioners seeking for a direction to the respondents to initiate recruitment process for filling up the posts of Assistant Professors / Director of Physical Education / Librarian sanctioned by the first respondent and notified by the second respondent as per the details of vacancies set out in the Prospectus issued by the second respondent, dated 19.12.2010 and for consequential direction to appoint the petitioners who are fully qualified as per the University Grants Commission Regulations, 2009 guidelines as lecturers in six colleges run by the second respondent on permanent basis.
2.When the matter came up on 12.09.2012, this court directed the learned Special Government Pleader to take notice for the first respondent. For the second respondent, private notice was ordered. On behalf of the second respondent, Mr.M.Devendran, Standing Counsel for the Pachaiyappa's Trust appeared.
3.The contention of the petitioners were that they possess qualifications as per the UGC norms and that either they are having Ph.D or they have passed NET. It was also stated that the second respondent Trust is running six colleges. The petitioners are also working as Guest Lecturers on temporary basis. They are working continuously from 4 to 10 years with one month break for every year. Initially, they were paid Rs.3000/- as consolidated pay and at present, they are drawing Rs.6000/-. One such appointment given in favour of the second petitioner was enclosed in page 20 of the typed set. It is seen that the second petitioner was appointed by the Principal of the College based on the recommendation of the Head of the Department as well as members of the College Committee. It was their case that the second respondent, i.e., Pachaiyappa's Trust Board had given advertisements for filling up the vacancies for the posts of Lecturers by advertisements dated 07.05.2008, 18.08.2009 and 19.12.2010. In the last advertisement, the total vacancies for which advertisement was made was 125. Since the posts have not been filled up, they have come forward to seek for a direction to appoint them.
4.In this context, as to whether guest lecturers, who were appointed on consolidated pay by the Principal of the College, are entitled to be regularized without any selection process has to be considered first. The colleges run by the second respondent Trust are private colleges within the meaning of Section 2(8) of the Tamil Nadu Private Colleges (Regulation) Act, 1976. The appointment of any teacher has to be necessarily made by the College Committee in terms of Section 14(1)(b) of the said Act. The teachers who are to be appointed must be fully qualified in terms of the qualification prescribed under Section 15 of the said Act. Under Rule 11, the number of teachers employed in the college should not exceed the number of posts fixed by the Director from time to time with reference to academic requirement and norms prescribed by the respective university and over all financial considerations. The same rule also provides that reservation as per communal roster will have to be followed. Therefore, it cannot be said that the petitioners went through the selection process as contemplated under the Private Colleges (Regulation) Act.
5.The question as to whether the guest lecturers without going through the selection process can be directly regularized came to be considered by a division bench of this court in M.Saravanakumar and others Vs. The Secretary to Government, Education Department, Fort St. George, Chennai and others reported in 2005 (3) L.W. 329, wherein the division bench dealt with the demand of the Guest Lecturers (adhoc lecturers) for regularisation. In paragraphs 28,32 and 33, the division bench had observed as follows:
"28. It may be noted that Guest Lecturers are appointed by the Principals of the Colleges. There is no guarantee that such an appointee is competent. The Principal may have various considerations for making such an appointment, not necessarily merit. Suppose one of such appointees is wholly incompetent and undeserving. Why can he not be replaced by a bright and deserving candidate? After all we have to see the matter from the point of view of the students. An incompetent teacher may adversely affect the future career of the students, while a bright teacher can greatly uplift it. Hence, in our opinion, if a deserving and competent candidate is available then he can certainly be appointed as Guest Lecturer in the place of another Guest Lecturer, who is incompetent and undeserving.
.......
32.It is also not in the interest of the students or the public to appoint Guest Lecturers on a large scale, because teachers who are given such appointments are not likely to take much interest in their work. They will not be able to work with a free mind and will feel all the time that there is a Damocles Sword hanging over their heads. Surely the students in Tamil Nadu deserve good teachers. Good education is of paramount importance for the progress of society in the modern age.
33.We fail to understand why for the past 5 years no regular recruitment has been made through the Teachers Recruitment Board, and instead this policy of appointing Guest Lecturers has been continued year after year. The teachers are the Gurus of society, and they must be given proper respect, proper status, and a secure job, so that they can function with a free mind and take interest in their work. This policy of making appointments of Guest Lecturers is not conducive to this end, and must now be revoked. "
6.After rejecting similar claims, in paragraph 37, the division bench gave the following directions :
"37.We therefore direct that after 31.03.2006 all appointments of lecturers, and other teaching posts, including Principals, in Government Colleges in Tamil Nadu shall be made on a regular basis by selection through the Teachers Recruitment Board or any other legally constituted selection body and not by appointing Guest Lecturers. Such regularly selected teachers will be paid the U.G.C. grade salaries and guaranteed security of tenure. They shall also be given all benefits and perquisites allowable to regularly selected teachers. No Guest Lecturers or ad hoc Lecturers will be appointed or continued after 31.03.2006."
7.Therefore, such a recruitment has to be made by regular selection process. The Supreme Court in State of Karnataka v. Uma Devi(3) reported in (2006) 4 SCC 1 has clearly laid down that the appointment for all government employments will have to be made in terms of the recruitment rules and any other recruitment will be against Articles 14 and 16 of the Constitution of India. Though certain attempts were made to reinterpret the judgment in Uma Devi(3) case, supra, such attempts were frowned upon by the Supreme Court in Uttaranchal Jal Sansthan v. Laxmi Devi reported in (2009) 7 SCC 205.
8.Even if ad hoc appointees, who were appointed directly, work for ten years, the Court cannot show any misplaced sympathy of protecting such ad hoc employees only because they have worked for long time and the Supreme Court held that in such cases, the decision in Uma Devi (3) case, supra, is binding and has to be applied, vide judgment in State of West Bengal v. Banibrata Ghosh reported in (2009) 3 SCC 250.
9.The Supreme Court also took a similar view in Raghavendra Rao v. State of Karnataka reported in (2009) 3 SCC 250 and held that such candidate has no right to be absorbed or made permanent.
10.Similarly, in Harminder Kaur v. Union of India reported in (2009) 13 SCC 90, the Supreme Court held that the long service rendered by ad hoc employees cannot be a ground for regularisation and regularisation cannot be a mode of appointment. Even on the question of age relaxation of such appointees for being considered for future recruitment, the Supreme Court only gave a non binding direction to the respondents/State to consider such issues on their own.
11.The Supreme Court in Pinaki Chatterjee v. Union of India reported in (2009) 5 SCC 193 held that the recruitment cannot be made contrary to the statutory recruitment rules and in violation of Articles 14 and 16 of the Constitution of India.
12.In case where an employee was appointed twenty times against short term vacancies, such a candidate cannot be regularised and the posts will have to be filled up by direct recruitment, as held in Man Singh v. Commissioner, Garhwal Mandal, Pauri and others reported in (2009) 11 SCC 448.
13.Even the clarification given in paragraph [53] of the Uma Devi(3) case, (cited supra) that as a one time measure regularisation can be resorted to, came to be subsequently reinterpreted in Satya Prakash v. State of Bihar reported in (2010) 4 SCC 179. In that case, the Supreme Court held that in Uma Devi(3) case, supra, the Constitutional Bench has drawn a distinction between temporary employees, daily wagers, and those who were appointed irregularly, in the sense that there was non compliance with the procedure in selection process and they did not go through the selection process and in such cases, inspiration cannot be taken from paragraph [53] of the Uma Devi(3) case, supra.
14.In the light of the same, the second relief claimed by the petitioners cannot be countenanced by this court.
15.The colleges run by the second respondent Trust, as noted already, are private colleges within the meaning of the Tamil Nadu Private Colleges (Regulation) Act, 1976. Any appointment made is subject to the approval by the department as the aid will have to be received for the post for which general permission was sanctioned to the college. While doing so, they will have to fulfill the obligation made by the State Government as well as the University in terms of the qualification. The State Government pursuant to the recommendation by the UGC, accepting the same, had issued a Government Order in G.O.Ms.No.1786, Higher Education Department, dated 05.12.1988 and also prescribed procedures for recruitment of teachers. It has been held that persons will have to be qualified in terms of UGC regulations and that the posts will have to be filled up by all India advertisement. The said G.O. has been subsequently amended from time to time. Therefore, there is obligation for the college to comply with the statutory directions issued by the State Government in this regard, without which no aid will be granted for the post filled up. The UGC has also introduced the requirement of passing NET or its equivalent before being recruited for any post. If such qualification is not found with any of the candidate, he is not at all to be appointed, as the institution will be at risk of losing its aid granted by the UGC.
16.In this context, it is necessary to refer to a judgment of the Supreme Court in University of Delhi v. Raj Singh reported in 1994 Supp (3) SCC 516 and in paragraph 24, it was observed as follows :
'24.It is now appropriate to clarify the direction that the Delhi High Court issued in allowing the writ petition. It held that the notification dated 19-9-1991, by which the said Regulations were published, was valid and mandatory and the Delhi University was obliged under law to comply therewith. The Delhi University was directed to select lecturers for itself and its affiliated and subordinate colleges strictly in accordance with the notification. Put shortly, the Delhi University is mandated to comply with the said Regulations......."
17.In the absence of the petitioners going through regular recruitment process, they cannot seek for regularization merely because they have put in a few years of service. As noted already, they were not recruited by the statutory authority under the Act. The respondent Trust had already called for applications several times and due to reasons of pendency of writ petitions and interim order as well as the change of composition of trust, the appointment could not be made. The petitioners cannot have any right to state that the tenure put by them will be a ground to disregard the statutory recruitment process. The experience gained by them as well as additional qualifications if any earned by them can be compensated by the selection committee by awarding some extra marks as was done by the Teachers Recruitment Board in the matter of recruiting teachers for Government colleges. Such prescription of weightage given for experience and higher qualification was also upheld by this court.
18.Mr.M.Devendran, learned Standing counsel for the second respondent also brought to the notice of this court that subsequent to the advertisement given, dated 19.12.2010, selection process could not be completed as there was vacuum in the Trust Board, i.e., there were only four trustees, out of nine, who are functioning. The quorum for trustees were five. It was also stated that a teachers organization as well as the Trust took up applications before the Original Side of this Court in Application Nos.4062, 4129, 4226, 4497 and 4498 of 2012, seeking for filling up vacancies in the trust and also to appoint an interim administrator pending filling up the vacancies in the trust. The Scheme Judge, by an order dated 16.10.2012 had passed the following order :
"24.In view of the above, this court is constrained to issue the following directions :
(i)This court appoints Mr.T.N.Seshan (Retired I.A.S. and also Retired Chief Election Commissioner of India), residing at No.167, St. Marys Road, Chennai-600 018 as the Interim Administrator (I.A.). He shall take charge of the management of the Pachaiyappa's charities with an immediate effect.
(ii)The I.A. shall administer the Trust until a new board of trustees take charge after conducting elections for the trust board.
(iii) to (vii) omitted
(viii)Apart from this task, in view of the grave situation created by non filling up of posts, the I.A. will specially attend to the question of filling up the vacant posts in the colleges run by the Trust besides his other work.
(ix)Serious complaints have been made regarding the large number of vacancies in the matter of teachers in various colleges run under the trust number more than 120, for which steps were initiated as early as in August, 2009 calling for applications to fill up the post of lecturers for the six Arts and Science Colleges run by the Trust in Chennai, Kancheepuram and Cuddalore by direct recruitment and at that time, the vacancies were about 111 and presently, the vacancies have been said to be more than 121, the I.A. will immediately start the process of recruitments in accordance with the guidelines issued by the University Grants Commission and subsequent notifications issued by the State Government. Since the recruitment of teachers is governed by the provisions of the Tamil Nadu Private Colleges (Regulations) Act, 1976 the process of filling up the vacancies need not wait for the completion of the election which may likely to take some more time.
(x)Until the full strength of the trustees is established by due process of law, the interim administrator shall exercise all powers vested with the trustees under the scheme including administration, financial and all personal management and in all activities of the Trust.
(xi)The administrator is empowered to hire a personal Secretary to assist him in his work. He is also entitled working space, personal staff and communication facilities. He can also draw assistance from the existing staff of the Trust as he may deem fit as necessary."
19.The learned Standing Counsel also stated that subsequent to the year 2010, number of vacancies have occurred as noted in the order referred to above and that the interim administrator is in the process of implementing the order for recruiting candidates and stated that suitable directions may be issued for completing the process.
20.In the light of the above, the interim administrator is hereby directed to complete the selection process by filling up not only the vacancies which were notified earlier as well as the vacancies which had arisen upto the year 2012. He should strictly adhere to the appointment norms as per the UGC guidelines and various Government Orders governing the field including adhering to the communal roster as required under the statutory rules. This process shall be completed within a period of six months from the date of receipt of copy of this order. In view of the enormity of recruitment process, six months time is given for completing the recruitment process.
21.In the light of the above, this writ petition will stand disposed of accordingly. No costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Directorate of Collegiate Education, Department of Higher Education, 9th Floor, EVK Sampath Buildings, College Road, Chennai-600 006.
2.The Secretary / President, Pachaiyappa's Trust Board, Poonamallee High Road, Aminjikarai, Chennai 600 030