IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.14796 of 2009 Dr.A.Safiullah ... Petitioner Vs. 1.The Director of Collegiate Education Chennai - 5. 2.The Registrar, University of Madras 3.The Secretary & Correspondent The New College Chennai - 14. ... Respondents Writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, to call for the records on the file of the third respondent in proceedings Nil dated 4.2.2009 and quash the same as illegal, incompetent, irregular and without jurisdiction and further direct the respondents to appoint the petitioner as lecturer in Chemistry on and from the date of his original appointment. For Petitioner : Mr.V.Raghavachari For Respondents : Mr.E.Sampath Kumar Spl G.P.(Edn) for R-1 Mr.B.Ramamoorthy for R-2 Mr.K.Ilias Ali for R-3 O R D E R The petitioner has come forward to challenge the order of the third respondent dated 04.02.2009 and seeks to set aside the same with a further direction to appoint him as Lecturer in Chemistry from the date of his original appointment. 2. By the impugned order, the third respondent informed the petitioner that since he never reported for work within three days pursuant to the earlier order dated 15.10.2008, it was presumed that he had unauthorisedly absented himself and it was also found https://hcservices.ecourts.gov.in/hcservices/ that he had gone out of the country without permission of the Management and therefore, his services were terminated with effect from 02.02.2009. 3. When the writ petition came up on 30.07.2009, this Court ordered notice of motion. Subsequently, the writ petition was admitted on 01.07.2010. The application for interim stay was also dismissed by this Court on 18.08.2010. 4. On notice from this court, the third respondent has filed a counter affidavit dated 03.01.2011 together with supporting documents in the form of typed set. 5. It is the case of the petitioner that he was appointed as a Full time Lecturer in Bio-Chemistry as a Management Staff in the evening college run by the third respondent on 01.08.1995. It is admitted that the third respondent is a Private College within the meaning of Section 2(8) of the Tamil Nadu Private Colleges (Regulation) Act, 1976. It is also a minority college having protection under Section 30(1) of the Constitution of India. The petitioner was paid a consolidated salary out of the funds of the Management. During the year June 2002, B.Sc. Biochemistry course started by the college was closed down. In view of the closure of the course in the evening college, the petitioner was given an appointment as a part time Lecturer in Biochemistry with effect from 21.07.2002. He was also treated as a staff appointed by the Management and not covered by the grant-in-aid scheme extended by the State Government. He was directed to teach Allied subject of Biochemistry for the regular college students. The petitioner was also given full time Lecturer ship, but paid on consolidated pay and was treated as Management staff. When approval for qualification was sent in terms of Section 15 of the Act, the University of Madras by proceedings dated 13.07.2005 approved that he was qualified to teach Allied Chemistry/Ancillary Chemistry for Under Graduate Degree Course. The Director of Collegiate Education viz., the first respondent also informed the third respondent college that as per the workload and on the basis of UGC norms, the Colleges were entitled to have three Lecturers in the Department of Chemistry. The petitioner was given an order of appointment, dated 26.07.2006 appointing him as a Lecturer in Chemistry (U.G.) Course. In that order itself, it was indicated that the appointment was made against one of the posts sanctioned by the Director of Collegiate Education dated 19.07.2006, but it was subject to approval by the University of Madras and the Director of Collegiate Education. It was further indicated that the Management was entitled to terminate his services by giving three months' notice. But when the matter was sent to the first respondent Directorate of Collegiate Education, the college was informed that since the petitioner had got M.Sc Degree as well as Ph.D in Biochemistry, he cannot be appointed as a Lecturer in Chemistry and his appointment was irregular. Therefore, the Management was directed to rectify the irregularity in the appointment. https://hcservices.ecourts.gov.in/hcservices/ 6. When fresh proposals were sent on 22.12.2006, the Director of Collegiate Education, by proceedings dated 03.04.2007 informed the Joint Director of Collegiate Education, Chennai Region that if the College Management agrees to adjust the petitioner's appointment against the three approved posts in the Department of Chemistry and that he should be allowed to teach only ancillary subject of Chemistry and that they should not ask for any additional post be sanctioned in that department, approval may be issued. 7. Even while the correspondence was in progress, the petitioner applied for leave for one year by a letter dated 15.10.2008 to pursue his further studies in a foreign country. Even without waiting for the approval, the petitioner left the services of the college. The third respondent informed the petitioner by a letter dated 01.12.2008 that his leave was not sanctioned and he was asked to report for duty within two days, failing which further action will be initiated for his unauthorised absence. Inspite of replying to the said letter, the petitioner's wife sent a reply on 06.12.2008 asking for sanction of leave and also pleaded not to take any action against the petitioner. By a further letter dated 15.12.2008, the petitioner's wife was informed that the petitioner should report for duty within three days from the receipt of the letter failing which disciplinary action will be initiated against him without any further notice. 8. The College Management informed the Principal that the Management had decided to terminate the services of the petitioner, who was only a Management staff and accordingly, the third respondent issued the impugned order dated 04.02.2009 terminating his services. 9. The petitioner even earlier filed a writ petition being W.P.No.15672 of 2007 seeking for a direction to grant approval to the petitioner's appointment as full time lecturer on the basis of his request. That writ petition came to be disposed of on 29.07.2009. It was in that writ petition, this Court recorded that the petitioner had already been terminated from service on account of his leaving the country. Therefore, it was open to the petitioner to proceed further in the manner known to law. 10. The contention raised by the petitioner was that the order of termination was illegal and was issued without affording an opportunity. He also contended that a regular enquiry should be conducted before termination, especially when the petitioner had put in 12 years of service in all capacities. The attempt made by the third respondent was to appoint some other person in the said post instead of considering the case of the petitioner. It was also further contended that the petitioner's appointment had been approved by the University and a post also existed in his favour. 11. It was around that time, the petitioner filed the present writ petition challenging the order of termination. Perhaps https://hcservices.ecourts.gov.in/hcservices/ anticipating that his earlier writ petition will be dismissed and on that ground, the petitioner had filed the present writ petition but chose to move the writ petition for admission only after the disposal of the earlier writ petition. 12. In the counter affidavit filed by the third respondent, it was contended by them that there was no vacancy in the Department of Chemistry. All the three posts were filled up by the third respondent and the respondents cannot indefinitely wait till the authorities decide whether the petitioner is qualified or not to hold. It was also stated that the University in the year 2005 granted approval only for the post of Lecturer in Biochemistry and the petitioner cannot teach Chemistry with that qualification. The third respondent college do not have any Post Graduate Department in Bio-Chemistry. The third respondent is a minority college and they are entitled to appoint persons of their choice. If the petitioner wants to leave the service of the college, he ought to have given three months' notice. But he had abruptly left to foreign country without any prior notice, which had affected the interest of the students and also contrary to the terms and conditions of appointment. The petitioner was permitted to teach only Ancillary/Allied Chemistry subject in the UG level. The third respondent cannot afford to have a lecturer exclusively for taking ancillary and allied chemistry subject. The notice sent to the petitioner could not be served as he had left abroad without sanction of leave. The qualification of the petitioner was also not approved. Therefore, the petitioner cannot claim any relief against the impugned order of termination. 13. In the present case, the writ petitioner cannot succeed assailing the impugned order for the following grounds: The petitioner's qualification was admittedly Bio-Chemistry both in the Post Graduate and in the Ph.D. Under Section 15 of the Tamil Nadu Private College (Regulation) Act 1976, it is the University which has to approve the qualification required for teaching a particular course. Under Section 16 of the Act, the Management is injuncted from appointing any person who does not possess the prescribed qualification. The approval granted by the University was only to teach Bio-Chemistry that too in the evening college. Admittedly, Bio-chemistry in UG level had been abolished by the third respondent. The post that was sanctioned was only a post in Lecturer in Chemistry and even the Directorate went to the level of asking the Management to adjust the petitioner's post as against 3 vacancies released to the College but only to teach Ancillary Chemistry and not main Chemistry. Therefore, it is for the college to decide whether to have such a person for a limited range of work as full time lecturer when he does not possess the essential qualification for teaching the said post. The petitioner is also not appointed in a regular capacity covered by the grant- in-aid code and till date, he only continuous to be a management staff paid out of the funds of the college. Even when he was holding such a post, the petitioner chose to remain absent by going abroad without getting prior permission of the Management. In para https://hcservices.ecourts.gov.in/hcservices/ 2 of the Code of conduct for teachers working in a Private College prescribed as Annexure I in terms of Rule 12(1) of the Tamil Nadu Private Colleges (Regulation) Rules,1976 r/w Section 18 of the Private Colleges Act, no teacher can absent himself from duties without prior permission. Therefore, the petitioner having absented himself cannot now plead the the impugned order is illegal. 14. In the absence of the petitioner having the necessary qualification to teach Chemistry to the students at UG level and the Management not having agreed to retain him as a Lecturer only for teaching Ancillary subject and also the fact that the petitioner had absented himself for more than one year without permission of the Management and considering the fact that the third respondent college is a minority college entitled to have protection under Section 30(1) of the Constitution, it is not a fit case where any relief can be given to the petitioner. 15. The Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, reported in (2002) 8 SCC 481, in dealing with the power of a minority institution running a self financing course, answered the question posed in this regard. In paragraph 161, the question No.5(c) deals with the said contention. Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/ withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities? A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day- to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself." https://hcservices.ecourts.gov.in/hcservices/ 16. In view of the above, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar svki To 1.The Director of Collegiate Education Chennai – 5. 2.The Registrar University of Madras 1 cc to Mr.V.Raghavachari , Advocate, Sr.No.41883 1 cc to Mr.B.Ramamoorthy , Advocate, Sr.No.41721 W.P.No.14796 of 2009 bvr(co) pmk.25.7.2011 https://hcservices.ecourts.gov.in/hcservices/