Madras High Court
Dr. Mrs. Shams vs The Commissioner Of Collegiate ... on 16 December, 1997
Equivalent citations: 1998(1)CTC609
ORDER
1. Placing reliance upon an order issued by the State Government, Order No.1785, Education (II-3) Department, dated 5th December, 1988, the petitioner who is a lecturer in Philosophy in Madras Christian College claims a right to be appointed as the Head of the Department of Philosophy on the ground that she is the senior lecturer, having entered service as Lecturer in January, 1979 after she had acquired a Doctor of Philosophy degree in July, 1978. She had been designated as senior lecturer from 1.1.1986. She is admittedly senior to Mr.M.Gabriel who has been appointed as the Head of the Department of Philosophy. He had entered service as lecturer on 3.10.1979, 21/2 months after petitioner had entered service. He was designated as senior lecturer on 3.10.1986, 9 months after petitioner had been so designated. He acquired Ph.D. Degree in the year 1992, 14 years after the petitioner had acquired that qualification.
2. The Government Order relied upon by the petitioner was issued pursuant to the recommendations made to the Government of India by a Committee known as Mehrotra Committee for reviewing the status of higher education in the country. The Government of India having decided to implement the revision of pay scales with effect from 1st January, 1986 had also offered financial assistance to the State Governments for adopting the revised scales subject to the condition set out in that order. It was open to the teachers in the colleges and the colleges to opt out of that scheme. Clause 19 of that scheme provides for such option. The respondent, Madras Christian College and its teachers had not opted out of that scheme. It is not in dispute that the scheme applies to them; although it is the contention of the counsel for the respondents that the provision dealing with appointment of senior most person in the Department as Head of Department is illegal and could be ignored by the college on the ground that it is aminority institution.
3. Petitioner had also filed an appeal to the Commissioner of Collegiate Education, Madras for securing her rights under the. scheme. The Commissioner by his order dated 24th November, 1994, after setting out all the relevant facts, held that the petitioner herein is the senior most person and senior to Mr. Gabriel in the Philosophy Department and that the petitioner should be nominated as the Head of Department of Philosophy. The respondent college has so far chosen to ignore this order and also the relevant part of the Government Order being clause No.4 in para r of the scheme That clause reads as under:
"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."
4. Coverage of the scheme is in respect of "teacher in all colleges" (Government and aided) Tamil Nadu unless they specifically exercise an option in writing to remain out of the scheme. It is not in dispute that the scheme was not any time challenged by the respondent college and it has not been held by any court or any other authority that this scheme, in whole or in part is inapplicable to the respondent college.
5. The Principle of the college Dr.Gladstone has filed a counter affidavit wherein he has asserted that the college which is said to. be a company registered under Sec. 25 of the Companies Act, 1956 is a minority institution entitled to the rights granted under Art. 30(I) of the Constitution of India. He has averred that the College has been granted autonomous status and "has been receiving grants towards salaries of the teaching and non-teaching staff. He has further claimed that the conditions for grant however cannot violate the rights of the college as a minority institution. According to him, from the angle of the minority institution, "especially with regard to the standard and ideologies which they would like to keep up and adhere to in the matter of imparting educational courses; such an imposition will curtail their freedom of choice regarding the head of the teaching staff". The curtailment is the choice of a person for being appointed as the Head of the Department. As to how the appointment of the senior most person as the Head of the Department affects the standard and ideologies of the Institutions is not set out in that counter affidavit: nor was anything more stated about it by the learned counsel for the college at the Bar.
6. The duties and obligations of the Head of the Department have been enumerated in the counter affidavit of the Principal, They have been listed under three heads namely Academic; Administrative and Financial. None of the duties under any one of the heads has anything to do with the minority nature of the Institution. The duties and obligations so enumerated are duties and obligations required to be performed and discharged by the Head of the Departments in any Academic institutions; be it minority institution or otherwise and whether they are aided or non-aided.
7. It has also been asserted in the counter affidavit of the Principal that the Oxford dictionary meaning of the term of 'promotion' is advancement in position 'or' elevation from a post 'and' therefore, when a lecturer in a Department, is appointed as the Head of that Department, it is advancement or elevation in position and it amounts to promotion, he denies that the failure on the part of the College to comply with the order of the Commissioner of Collegiate Education is illegal and unjust.
8. Learned senior counsel for the respondent placed reliance on the decision of a Division Bench of this Court in the case of L.Paulraj v. The District Educational Officer, Tanjore District, Tanjore and others, 1991 (2) M.L.J. 140, in support on his submission that the minority institution have unlimited freedom to choose personnel to be employed by them in what ever capacity. That was a case which arose under the provision of the Act governing schools. The matter in issue was appointed of a Head Master, having regard to the importance of that post, it was held by the Division Bench which decided the case on 22.1.1991 that in the matter of appointment of Headmasters, the minority institutions have freedom to make their own choice.
9. That judgment was rendered prior to the Judgment of the Supreme Court in the case of J.P.Unni Krishnan v. State of Andhra Pradesh, , a decision rendered by the Constitution Bench. The law laid down by this Court in the case of Paulraj cannot any longer regarded as good law in the light of the judgment of the Apex Court paragraph 195 of Judgment in the case of Unni Krishnan, makes this abundantly clear. That paragraph reads as under:
"Private educational institutions may be aided as well as unaided. Aid given by the Government may be cent per cent or partial. So far aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be farmed by the Government and/or recognising/affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standard of teaching and so on. These are and shall be understood to be the conditions of grant of aid. The reason is simple; public funds, when given as grant - and not as loan - carry the public character wherever they go; public funds cannot be donated for private purposes". The element of public character necessarily means a fair conduct in all respect consistent with the constitutional mandate of Arts. 14 and 15.
10. In respect of this very college this court considered the question as to whether the Government is entitle, while giving grants, to impose conditions, Srinivasan, J. as he then was held that it was open to the State Government to impose conditions while giving grants even to a minority institution. The Court observed at para.18 of that Judgment in the case of Madras Christian College, Madras v. The Deputy Director of Collegiate Education, Madras-6 and others, 1993 WLR 45:
"Government is entitled to safeguard the interests of teachers and students and in order to safeguard the interests of students, the Government is entitled to insist upon the work being given to the teachers in question to whom the grant is being paid by the Government."
11. It is admitted that this college receives grant and the grant is received in terms of the scheme formulated by the State Government which, inter alia, requires that teachers in the institution be given promotion as Head of Department on the basis of their seniority. The college is not expected to receive public funds for private purposes. The grants are for running educational institutions and not for advancing the cause of the minority which happens to run the institutions. The minority institution in which public funds are used are capable of being regulated by the Government which provides the funds so long as those regulations are relatable to and for the object sought to be achieved, when those objects do not infringe upon the constitutionally guaranteed rights to the minority. The requirement that the senior most person in the department be appointed as the Head of the Department is reasonable and a fair requirement and it is designed to ensure that the persons who have put in long years of service in the institution are given due recognition, by giving to such person the opportunity to shoulder the responsibility of running the Department. The duties attached to the post of the Head of the Department do not have any linkage with the minority character of the institution.
12. The Supreme Court in the case of Frank Anthony Public School Employees' Association v. Union of India, , held that even the unaided private minority school was required to ensure parity pay scales and other conditions of service with those available to their counter parts in Government schools and such obligation arose under the State enactment regulating the private unaided minority schools. The court held that the statutory measures regulating the terms and conditions of service of the employees of the minority educational institutions for maintaining educational standard and excellence would not offend Art. 30(I). In the course of the judgment, it was observed:
"For promoting excellence contentment and security of the service of the teachers was essential and for promoting such contentment condition of service can be regulated by the State for the purpose of enabling such teachers to enjoy a fair and reasonable conditions of service."
13. A Division bench of this Court in the case of S.Sundraram v. The Secretary, C.S.I Diocese of Madras and others, WANos.1179, 1242, of 1993, etc. decided on 6.9.1994 has held that once a teacher enters into service of the institution, the teacher is entitled to all the benefits available to the teachers in such institution under the scheme framed by the State to the extent such scheme applies to the concerned institution. The court rejected the argument for the respondent therein that as a minority institution, it was not bound to retain a teacher in service who had attained the age of superannuation during the academic year for the rest of the academic year.
14. In D.Singarayan and others v. Government of Tamil Nadu represented by the Secretary to Government, Education Department, Madras-9, W.P.No.6607 of 1991 and connected matters decided on 5.9.1995, the argument for the minority institution which was running a school that as a minority institution it was not bound to consider the case of all the teachers for the promotion to the post of Headmaster solely on the ground that one of those eligible was not a Christian, when the school was a Christian school, was rejected. It was held that all the teachers serving in the school who possess required qualification and fulfil the condition regarding the seniority and qualification, are entitled to considered for the post, and that appointment of a priest to a post of Headmaster even when he did not possess the requisite qualification and without considering the cases of others who were eligible, such appointment having been made on the strength of an exemption obtained, was not sustainable.
15. That the conditions of service of the teachers in College are regulated by Tamil Nadu Private Colleges (Regulation) Act, 1976 (Tamil Nadu Act 19 of 1976) is not in dispute. That Act applies to the respondent college. Sec. 17 of the Act specifies the conditions of service applicable to teachers. That section reads as under:
"Sec. 17, The Government may make rules in consultation with the University regulating the number and conditions of service including promotion, pay allowances, leave, pension, provident fund and age of retirement and rights as respects disciplinary matters but excluding qualifications of the teachers and other persons employed in any private college."
16. It is the case of the Principal of the College as set out in his affidavit that the appointment of a lecturer in the Department as the Head of the Department is a promotion. If so, it is clear that this is a matter which can be regulated by the Government as provided for in Sec. 17 of the Act.
17. It is useful to refer Sec. 10 of the Act which deals with payment of grant. Sec. 10(2) empowers the Government to withhold permanently or for any specific period the whole or any part of the grant to a private college inter alia if the College contravenes or fails to comply with any such condition as may be prescribed.
18. The condition prescribed and applicable to the respondent-college is to promote the senior person in the cadre of Lecturer as the Head of the Department. The Commissioner for Collegiate Education had, after considering all the relevant facts, directed that the petitioner be given appointment as the Head of the Department. The College has chosen to defy these direction and blatantly violated the statutes and the scheme subject to which grants have been made without any tenable defence for such illegal acts.
19. Learned counsel for the respondent college submitted that it is not necessary for the College to comply with illegal orders and illegal conditions in the Scheme. It is not for the college to sit in judgment over the legality or otherwise of the scheme, which is expressly applicable to it. if it is of the view that all or any part of the scheme is not applicable, it is bound to seek a declaration from the competent court regarding the invalidity of the allegedly illegal part of the scheme and have the offending part declared to be inapplicable to the concerned institution.
20. When the Act and the Scheme are intended to confer benefit on the teachers, the conduct of the respondent-College in denying the benefit, and continuing to deny the same despite the order made by the Commissioner of Collegiate Education must be strongly deprecated. The Government would have been justified in invoking Sec. 10(2)(iii) of the Act and withheld grants. As observed by the Apex Court in Unnikrishnan case, , public funds are meant to be utilised for public purposes and not for private purposes.
21. The respondents are directed to designate/promote the petitioner as the Head of the Department of Philosophy in the Madras Christian College, Tambaram, Chennai forthwith. This writ petition is allowed, as the submission made by Mr. Chandru learned senior counsel for petitioner having been found to be tenable and worthy of being upheld. Consequently, no order is necessary in the W.M.P. and the same is dismissed.