Madras High Court
The Principal And Secretary Madras ... vs Dr. (Mrs.) M. Shams And Another on 20 February, 2001
Equivalent citations: (2001)2MLJ501
ORDER E. Padmanabhan, J.
1. We have heard Mr.T.V. Ramanujam, learned senior Counsel for the appellants, Mr.K. Chandru, learned senior counsel for the first respondent and Mr.V. Rengaraju, learned Government Advocate for the second respondent in this appeal.
2. This writ appeal has been preferred against the order of the learned single Judge dated 16.12.1997 made in W.P.No.4839 of 1995 on the file of this Court. The first respondent herein moved the second respondent under the provisions of the Tamil Nadu Private Colleges (Regulation) Act for a direction, while complaining that, being the senior most, had not been posted as the Head of the Department, which is in violation of Rule 11(4)(1) of the Tamil Nadu Private Colleges (Regulation) Rules as well as the Grant Rules. The second respondent herein, after affording necessary opportunity, by proceedings dated 24.11.1994, directed the first appellant herein to designate the first respondent herein as the Head of the Department and also held that the appointment of the second appellant herein as the Head of the Department is neither warranted nor legal. The said direction had not been compiled with by the first appellant college.
3. In the circumstances, the first respondent herein filed W.P.No.4839 of 1995 praying for the issuance of a writ of Mandamus directing the first appellant herein to implement the said order of the second respondent herein dated 24.11.1994 to designate the first respondent herein as the Head of the Department of Philosophy forthwith.
4. The said writ petition was resisted by the appellants herein by filing a detailed counter.
5. The learned single Judge, by an order dated 16.12.1997, While over-ruling the objections raised by the appellants herein issued a writ of mandamus as prayed for in the said writ petition. Being aggrieved by the said rule nisi absolute, the present appeal has been preferred by respondents 2 and 3 in the said writ petition.
6. It is contended by the learned Senior Counsel for the appellants that the directions issued by the second respondent herein are violative of Article 30 of Constitution of India and the Rule in question has no application to a minority college and therefore, the learned Single Judge ought to have declined the issue of a writ of mandamus.
7. Per contra, learned senior counsel for the first respondent contended that the first appellant herein, having accepted the terms and conditions, subject to which grant has been made, cannot go back and contend that one of the conditions, subject to which the grant has been made, is not applicable nor it is violative of Article 30(1) of the Constitution of India. Learned senior counsel for the first respondent also referred to the earlier Division Bench judgment of this Court.
8. Though a number of contentions have been advanced, by the learned senior counsel for the appellants, in support of his contentions, referred to various pronouncements of the Apex Court as well as this Court. We are of the considered view that it is not necessary to refer to those judgments, in the light of the following conditions subject to which the first appellate college accepted the grant.
9. By G.O.Ms.No.1785 Education (H-3) Department dated 5.12.1988, in respect of the Government and aided colleges the scales of pay of the teaching staff are ordered to be revised. That was a scheme enunciated by the State Government as well as the Central Government the University Grants Commission. The said Government Order provides for introduction of Uniform Scales of pay through out the country as recommended under the New Education Policy. The colleges, which are governed, are covered by the provisions of the scheme and the head "Coverage" reads as follows:
Coverage (1) The scheme applies to the teachers in all Colleges (Government and aided) in Tamil Nadu, unless they specifically exercise an option in writing to remain out of this scheme as provided in sub para (xix) hereafter. All teachers appointed after the date from which the scheme has been given effect to will be governed by the provisions of the scheme.
Explanation: (a) The scheme will apply to teachers in all Arts and Science Colleges (including those who are on deputation borne on Collegiate Education Service, etc.) Law Colleges, Oriental Colleges, Colleges of Education, Colleges of Physical Education the Madras Institution of Development Studies and the school of Social Work.
(b) The scheme will not apply to the teachers in Technical Institutions (including Engineering Colleges) and Medical Colleges except of Director of Collegiate Education.
(c) In respect of teachers of Universities and Librarians/Physical Directors is Colleges/Universities separate orders have been issued.
10. From the above passage, it is clear that the scheme applies to the teachers of all Colleges either Government or aided in Tamil Nadu unless the individual college specifically exercision an option to remain out of the scheme as provided under the very same scheme. The scheme also directs that all the teachers appointed alter the date from which the scheme has been given effect to will be governed by the provisions of the scheme.
11. Under the scheme it is further provided that the senior most person in the Department of the College irrespective of his Ph.D. qualification will be examined and designated as Senior Lecturer/selection Grade Lecturer/Reader and Head of Department by the Director of Collegiate Education that no special pay will be allowed to that post.
12. Therefore, it is clear that the Head of the Department not being a promotion post, which does not carry a special pay, the senior most person in the department has to be nominated and designated as the Head of the Department. The first appellant college had admittedly subscribed itself to the scheme and had accepted the revision of pay scales in terms of the coverage prescribed under the scheme. There is no dispute in this respect that the entire college is receiving the grant as per the revised pay scales introduced by the said Government Order. Having accepted the said coverage and having subjected itself to the conditions stipulated in the scheme, it is too late for the first respondent to contend that such a condition will have no application at all not the appellant could avoid the compliance of the said scheme.
13. In the case of Unni Krishnan, J.P. v. State of A.P. , the Apex Court held thus:
" Private educational institutions may be aided as well as on-aided. Aid given by the Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abided by all the rules and regulations as may be framed by the Government and/or reconginsing affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standard of teaching and so on. In particular, in the mater of admission of students, that have to follow the rule of merit and merit alone subject to any reservations made under Article 15. They shall not be entitled to charge any fees higher than what is charged in Governmental institutions for similar courses. These are and shall be understood to be the conditions of grant of aid. The reasons 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 respects consistent with the constitutional mandate of Articles 14 and 15. All the Governments and other authorities in charge of granting aid to educational institutions shall expressly provide for such conditions (among others), if not already provided, and shall ensure compliance with the same. Again aid may lake several forms. For example, a Medical College does necessarily require a hospital. We are told that for a 100 seat medical college, there must be a fully equipped 700 bed hospital. Then alone the medical college can be allowed to function. A private medical college may not have or may not establish a hospital of its own. It may request the Government and the Government may permit it to avail of the services of a Government hospital for the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed may be with some relaxation in the matter of fees chargeable and observed. The Government's (Central and State) and all other authorities granting aid shall impose such conditions forthwith if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions.
14. Therefore in the light of the said pronouncement having accepted the grant subject to the conditions, and the post being only a designated one which has to be done by the Director of Collegiate Education, it follows that the first appellant herein is bound to follow the rule of seniority as has been ordered in this case. Hence, we do not find any infirmity in the order passed by the learned Single Judge and we also hasten to add that it is unnecessary to go into any other contentions.
15. The writ appeal is dismissed. No costs.