Madras High Court
Dr.N.Santhy vs Director Of Collegiate Education on 16 November, 2015
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.11.2015 CORAM THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM W.P.No.35715 of 2015 Dr.N.Santhy .. Petitioner Vs. 1.Director of Collegiate Education, College Road, Chennai 600 006. 2.The Joint Director of College Education, Thirunelveli Region, Thirunelveli 627 007. 3.The Secretary, Nesamony Memorial Christian Collage, Marthandam, Kanyakumari District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the 1st respondent herein to approve and regularize the petitioner appointment as Assistant Professor in History in the Nesamony Memorial Christian College, Marthandam, in the sanctioned retirement vacancy of Dr.A.Raja Thangam with effect from 04.08.2015 based on the approval given by the 1st respondent to the similarly placed person like Dr.D.Thampi Dharmaraj Kurupatham in Na.Ka.No.24810/F2/2015 dated 20.10.2015 in W.P.No.16897 of 2015, Dr.S.Mehalin Chandra in Na.Ka.No.24811/F2/2015 dated 20.10.2015 in W.P.No.16898 of 2015 and C.Anuba & 10 others, in W.P.Nos.11004 to 11014 of 2005 dated 29.06.2015 with monetary and service and all other benefits for the said period. For Petitioner : Mr.E.Martin Jeya Kumar For R1 & R2 : Mr.N.Srinivasan Addl.Govt.Pleader For R3 : Isaac Mohanlal. O R D E R
With the consent of both sides, the Writ Petition is taken up for final disposal.
2.The petitioner is appointed in the vacancy that arose due to retirement or due to death of Assistant Professor in the concerned faculty in the third respondent College, an aided minority institution. Since the petitioner is appointed against the regular vacancies that arose due to death/retirement, her appointment has to be approved for the purpose of grant by the Joint Director of Collegiate Education, Tirunelveli Region, the second respondent herein, subject to the approval of the qualification of the petitioner by the third respondent University, as per Section 15 of the Tamil Nadu Private Colleges Regulation Act.
3.Under normal circumstances, after appointment in a regular vacancy, the College used to send proposal to the concerned University, seeking approval of qualification under Section 15 of Tamil Nadu Private Colleges Regulation Act. After getting approval, the College would seek grant for appointment from the concerned Joint Director of Collegiate Education and the Joint Director concerned is bound to sanction grant if the Teachers were appointed against the regular vacancy and if they are in possession of the requisite qualification as approved by the University.
4.But, the Director of Collegiate Education issued the proceedings dated 07.04.2015, to the third respondent University, stating that they should not grant approval for the qualification unless the concerned authority sanction the grant.
5.At this juncture, it is relevant to extract the letter of the Director of Collegiate Education dated 07.04.2015:
"ghh;itapy; fhQqk; foj';fs; kPJ j';fspd; ftdj;jpid bfhzu tpiHfpnwd;/ ghh;it 2?y; fhQqk; j';fs; fojj;jpy; muR cjtp bgWk; fy;Y}hpfspy; epakdk; bra;ag;gl;l Mrphpah;fs; rhh;ghf fy;tpj; jFjpf;fhd xg;g[jy; mspg;gjw;F gy;fiyf;fHfk; fy;Y}hpf; fy;tp ,af;Fehpd; gzpapl xg;gspg;g[ Mizapid rhpghh;f;f ntz;oaJ mtrpakh vd;gij bjspt[gLj;j nfhhpa[s;sPh;fs;/ ,J bjhlh;ghf ghh;it 1?y; fhQqk; ,t;tYtyf fojj;jpy; fPHf;fz;l tpsf;fk; j';fSf;F mspf;fg;gl;Ls;sJ/ muR cjt[ bgWk; fy;Y}hpfspy; epakdk; bra;ag;gl;l Mrphpah;fspd; fy;tpj; jFjpf;F xg;g[jy; mspg;gjw;F. rhh;e;j gy;fiyf;fHfk; fy;Y}hpf; fy;tp ,af;Fehpd; gzpapl xg;gspg;g[ Mizapid jw;bghGJ cs;s eilKiwapd;go nfl;f njit vHtpy;iy vdt[k; kw;Wk; muR cjt[ bgWk; jdpahh; fy;Y}hpfs; ,J bjhlh;ghf ePjpkd;w';fspy; mof;fo tHf;Ffs; jhf;fy; bra;ag;gLtij jtph;f;Fk; bghUl;L. *kpft[k; fhyjhkjkhf xg;g[jy; tH';fg;gLk; njh;t[fspy; kl;Lk;. njitg;gl;lhy;. gy;fiyf;fHfk; fy;Y}hpf; fy;tp ,af;Fehpd; gzpapl xg;gspg;g[ (Post Sanction Order) Mizapid nfhhp rhpghh;f;fyhk;* vdt[k; bjhptpf;fg;gl;lJ/ ,e;epiyapy; muR cjtp bgWk; fy;Y}hpfspy; (rpWghd;ik fy;Y}hpfs; cl;gl) epakdk; bra;ag;gLk; Mrphpah;fspd; fy;tpj; jFjpf;F xg;g[jy; tH';Fk;nghJ rhh;e;j gy;fiyf;fHfk; fy;Y}hpf; fy;tp ,af;Fehpd; gzpapl xg;gspg;g[ (Post Sanction Order) Mizapid rhpghh;j;J gpd;dh; fy;tpj; jFjpf;F xg;g[jy; tH';fyhk;/ nkYk; fy;Y}hpf; fy;tp ,af;Fehpd; gzpapl xg;gspg;g[ Miz bgwhky; fy;tpj; jFjp xg;g[jy; nfhUk; fUj;Jf;fs; kPJ bjhlug;glntz;oa eltof;if Fwpj;J murpd; Miz bgwg;gl;l gpd; fy;Y}hpf; fy;tp ,af;Feuhy; bjsptiu tH';fg;gLk; vdj; bjhptpj;Jf; bfhs;fpnwd;/
6. According to the respondents, the prior approval shall be obtained from the Director before filling up the regular vacancy. The first respondent relied on Rule 11 (1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 and the same is extracted hereunder:
"The number of teacher employed in a College shall not exceed the number of posts fixed by the Director from time to time with reference to the academic requirements and norms of work-load prescribed by the respective Universities and overall financial considerations."
7.In an identical matter, this Court passed an order dated 03.09.2014 in W.P.(MD) No.5486 of 2014, directing to sanction grant to the post of a College Teacher who was appointed in the regular vacancy. For better appreciation, paragraph 8 of the order is extracted hereunder:
"8.The third respondent, without considering the application on merits, returned it on the ground that the Commissioner is now seized of the matter. The impugned order is bereft of particulars. The third respondent failed to indicate as to why such a Commission was appointed by the Government. Even if a Commission was appointed, still the third respondent has no authority to keep the application for approval pending or to return it, without forwarding it to the Government. I am, therefore, not in a position to support the order passed by the third respondent."
8.It is a well settled law by catena of decisions that whenever sanctioned posts are there and any vacancy arises due to retirement, death or resignation of the persons holding those posts, the same should be filled up by the concerned aided Institution without loss of time, so that the education of the students would not be affected and the education of the students is a paramount consideration in these matters. It is a different matter if a Teacher is appointed beyond the sanctioned strength. In this case, it is not in dispute that the petitioners were appointed by the third respondent College in the sanctioned post. Furthermore, the third respondent is a Minority Institution governed by Article 30 of the Constitution of India.
9.It is also useful to refer to paragraph No.20 of the order of the Hon'ble Division Bench of this Court in the case of P.Ravichandran Vs State of Tamil Nadu, [2013 (7) MLJ 641]. Paragraph No.20, is as follows:
"20. In the light of the above findings as well as the decisions, we conclude this Judgment in the following manner:
(1) There is no requirement under the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Tamil Nadu Private Colleges (Regulation) Rules, 1976, to seek prior permission to fill up any vacant post in an aided college, which has already been sanctioned for the academic year by the Director of Collegiate Education under Rule 11(1) of the Rules.
(2) If the appointment made by the College Committee in the sanctioned vacant post is in violation of any of the statutory provision, it is open to the Regional Joint Director of Collegiate Education to deny grant-in-aid to the said person appointed in the vacant post.
(3) The teaching staff appointed must be fully qualified, whose qualification is approved by the University to which the college is affiliated. Insofar as the non-teaching staff are concerned, the candidate must possess the qualification prescribed by the Government.
(4) The College Committee while filling up the vacant post, should follow the procedures stated in Rule 11(1A) to 11(4)(ii).
(5) If there is no rival candidate for any post, the appointment is bound to be approved for the purpose of payment of pay and allowances, by the Regional Joint Director of Collegiate Education.
The writ appeal is disposed of with the above directions. No costs."
10.Further, in various Judgments, this Court interfered with the action of the educational authorities in refusing to approve the appointment of Teachers in the post sanctioned by stating one reason or another, since those action would ultimately seriously affect the poor students who will seek admission in various courses in Aided Colleges, wherein no fee or nominal fee, is collected. In these circumstances, whenever a post is vacant on account of resignation, retirement or death, the concerned College shall fill up the post by a qualified Teacher, without loss of time, in the interest of the students.
11.In view of the above, the first and second respondents are directed to grant approval to the appointment of the petitioner as she was appointed against the regular vacancy due to retirement/death, within a period of four weeks from the date of receipt of a copy of this order and on such order being passed by the respondents 1 & 2, the concerned University is directed to grant approval for qualification based on records, within a period of four weeks thereafter.
12.The Writ Petition is disposed of accordingly. No costs.
16.11.2015
Index : Yes/No
Internet : Yes
tsh
To
1.Director of Collegiate Education,
College Road,
Chennai 600 006.
2.The Joint Director of College Education,
Thirunelveli Region,
Thirunelveli 627 007.
3.The Secretary,
Nesamony Memorial Christian Collage,
Marthandam,
Kanyakumari District.
K.KALYANASUNDARAM, J.
tsh
W.P.No.35715 of 2015
16.11.2015.