IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.8.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.20508 of 2007 T.F.Abbs Fen Reji .. Petitioner Vs. 1. The State of Tamil Nadu rep. by its Secretary Higher Education Fort St.George, Chennai – 9. 2. The Director of Collegiate Education College Road, Chennai – 6. 3. The Joint Director of Collegiate Education Tirunelveli Region Tirunelveli – 627 002. 4. The Nesamony Memorial Christian College rep. by its Correspondent and Secretary Marthandam, Kanyakumari District. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records relating to the proceeding of the second respondent vide Pa.Mu.No.44563/F2/06, culminating in his order dated 12.4.2007, quash the same and direct the second respondent to approve the appointment of the petitioner as Lecturer in Chemistry in the fourth respondent college with effect from 3.1.2003 as per the direction of this Court issued in its order dated 20.12.2006 in W.P.No.35326 of 2006. For Petitioner : Mr.N.Rajan For Respondents : Mr.I.Arokiasamy Government Advocate (Edn.) for respondents 1 to 3 Mr.S.Stanley John for 4th respondent ORDER This writ petition came to be posted on being specially ordered by the Hon'ble Chief Justice by order dated 5.8.2011. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner has filed the present writ petition seeking to challenge the order passed by the second respondent/Director of Collegiate Education dated 12.4.2007. By the impugned order, the second respondent refused to allow grant in respect of the petitioner's contention that he was holding the post of Lecturer in Chemistry with effect from 3.1.2003. The petitioner was also informed that in the aided private colleges there are as many as 2165 posts vacant and only when the State Government grants approval for filling up the post and after the petitioner gets his educational qualification approved by the Manonmaniam Sundaranar University and proposals are sent to the Regional Director of Collegiate Education, Tirunelveli, appropriate orders will be issued in his favour. 3. The said order itself came to be passed pursuant to the earlier writ petition filed by the petitioner in W.P.No.35326 of 2006, dated 20.12.2006. In that case, the second respondent's earlier order dated 10.9.2004 was set aside and he was directed to assess the sanctioned strength of the students and to pass orders granting approval to the appointment of the petitioner from the date of his initial appointment, viz., on 3.1.2003, after making such enquiry as is necessary. 4. In the earlier order dated 10.9.2004, the second respondent held that since there was no change of student strength for the academic year 2000-2001 to 2003-2004 and there is no extra workload, the case of the petitioner cannot be considered. It was also intimated that the fourth respondent/College did not seek prior approval for filling up the post and if only they had made an application, they would have been informed that there was no necessity to have one more lecturer and merely because the lecturer who was holding the post on the basis of the workload in the year 2000-2001 got retired, it does not become an automatic post available to the management and the appointment of the petitioner was unilateral. Any appointment made without getting prior approval of the post will be illegal and not in accordance with the rules prescribed therein. 5. The writ petition was admitted on 15.6.2007. Pending the writ petition, in the petition seeking an interim direction to pay salary with effect from 3.1.2003, only notice was ordered. Subsequently, the petition was closed by fixing an early date for hearing of the writ petition. The second respondent filed a counter affidavit dated (Nil) September, 2008. 6. During the pendency of the writ petition, the petitioner's post was approved with effect from the forenoon of 30.7.2007. In the order dated 6.11.2008, the third respondent approved the appointment of the petitioner without prejudice to the outcome of this writ petition. The petitioner also gave an undertaking dated 31.10.2008 https://hcservices.ecourts.gov.in/hcservices/ stating that he agrees for the approval of his appointment granted with effect from 30.7.2007 and he is willing to abide by the order passed by this Court in the main writ petition. 7. The contention raised by the petitioner was that at the time when he was appointed on 3.1.2003, he was allotted 18 teaching hours per week and therefore, it is proved that there was sufficient workload in the department and when he was given a teaching experience certificate, the college management has counted the entire period from 3.1.2003 to 30.9.2008 and granted a certificate stating that he had 5 years 8 months and 28 days of teaching experience. But however, it must be noted that the petitioner was unilaterally appointed by the fourth respondent/College, which is an aided private college coming within the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976. 8. Though in the appointment order it was stated that the appointment of the petitioner was against the retirement vacancy of K.C.Sathya Sivasankaran, the management did not seek permission from the Government for filling up the vacancy. But however, the College while granting the appointment clearly stated that the appointment was subject to the approval by the Joint Director of Collegiate Education and he will not be eligible to claim salary or other remuneration from the management in the event of non approval of his appointment by the Joint Director of Collegiate Education. 9. When his appointment was notified to the third respondent, the college was informed by a communication dated 24.3.2003 that since there was a ban on filling up vacancies due to retirement, resignation and death, unless approval of the Director is obtained, no approval can be granted. The petitioner challenging the the said communication filed a writ petition, being W.P.No.34387 of 2003. That writ petition came to be heard along with several other writ petitions and by a common order dated 10.12.2003 the writ petitions were allowed. Subsequently, the matter was taken on appeal by the respondent/department in W.A.No.2654 of 2004 and a Division Bench modified the order by merely directing the respondents to consider the claim of the petitioner. 10. It is pursuant to the same, the second respondent, by an order dated 10.9.2004, rejected the claim of the petitioner, which gave rise to the petitioner filing W.P.No.35326 of 2006 and once again this Court held that the respondent should verify the necessary workload and find out whether there was justification in the petitioner's appointment to be made from 3.1.2003. It is pursuant to the said direction, the present impugned order came to be passed. 11. The contention raised by the petitioner was that the order dated 20.12.2006 clearly speaks in his favour and the respondents have clearly committed a gross contempt and the college has necessary https://hcservices.ecourts.gov.in/hcservices/ workload for accommodating the petitioner. He also found fault with the college maintaining improper records, which finds place in the impugned order. In the impugned order, it was noted that for each approved post, a lecturer was allotted 16 hours (direct teaching hours) and in respect of Chemistry Department, for the total workload of 58 teaching hours, it is enough to have 1 + 3 teachers and, therefore, there was no justification for appointing the petitioner on 3.1.2003, on the basis of a retirement vacancy. It was also found that the inspection of the attendance register showed that even before the petitioner, N.T.Niveditha and Issac Sobanraj have been appointed with effect from 24.8.2000 and 12.2.2002 respectively and the Regional Director of Collegiate Education had granted approval in respect of those two posts on 26.2.2007. 12. In the counter affidavit filed by the second respondent, it was stated that there was no question of disobeying the earlier order passed by this Court dated 20.12.2006 and in fact, this Court directed the department to conduct an enquiry and based upon the enquiry, the approval sought by the petitioner was rejected and in the counter affidavit, in paragraph [7], it was averred as follows: 7. ... it is respectfully submitted that as stated above in the previous paras, workload is not the only criteria's for fixing the staff strength. Further, the Director of Collegiate Education, Chennai-6 is the competent authority to fix the staff strength and not the College Management or the petitioner. Fixing of Staff strength in a particular Department is not constant one. It is stated that the number of Lecturers employed in a College shall not exceed the number of posts fixed by the Director of Collegiate Education, Chennai-6 from time to time, based on the academic requirements and workload norms prescribed by the respective Universities and overall financial conditions. Even though, the Director of Collegiate Education, Chennai-6 has sanctioned 1 + 7 posts in the Department of Chemistry for the Academic year 1999-2000, strict instructions have been issued to all Colleges including Nesamony Memorial Christian College, Marthandam not fill up any of the vacancy without getting prior permission from the Director of Collegiate Education, Chennai-6." 13. In the present case, it is an admitted fact that the fourth respondent/College did not seek prior permission from the department for filling up the post. They themselves cannot unilaterally fix the workload and appoint any person. On the other hand, the management, conscious of its limitations, in the appointment order given to the petitioner had stated that his appointment will be subject to the https://hcservices.ecourts.gov.in/hcservices/ approval of the department. Merely because a lecturer retired from service, it does not add on to the sanctioned strength of the College and as rightly contended, under Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, each time for filling up of a post, the college management should approach the department for granting approval, without which the post cannot be filled up. In essence, there are two approvals required. Firstly, the permission to fill up the post and secondly, the qualification approval of the person who is holding the office. 14. In the case on hand, it is only the fourth respondent/ management which could have locus standi to come to this Court seeking to challenge the reduced workload or reduced staff strength given to the management. The writ petition is liable to be rejected even on this short ground. In any event, since the petitioner had already two rounds of litigation, this Court is not inclined to reject the writ petition on the ground of maintainability. 15. The learned counsel for the petitioner referred to an order passed by this Court in Natesha Sebastian v. The Government of Tamil Nadu and others (W.P.No.28396 of 2004, dated 29.3.2006). In that case, this Court merely referring to Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 held that if there is no reduction in workload and in the absence of any order passed by the department granting any reduction or financial constraints, there is no impediment for the college to appoint a person in the existing vacancy and no prior permission is required to appoint a teacher. 16. The learned counsel also referred to a Division Bench judgment in Government of Tamil Nadu, rep. by its Secretary, Higher Education Department and others v. B.Ravichandran and others (W.A.Nos.92 and 93 of 2008, dated 6.1.2010), wherein the Division Bench affirmed the view of the learned Single Judge holding that if appointment of a person in a sanctioned post is made in accordance with law, then no permission from the Director of Collegiate Education is required. 17. However, both the decisions, supra, had not taken into account the full import of Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 and also the decisions of the Supreme Court, which have a bearing on the relevant issue. The Supreme Court vide its judgment in State of Tamil Nadu and others Vs. Amala Annai Higher Secondary School, [2009] 9 SCC 386 dealt with a similar case in respect of a minority institution. In paragraphs [11] to [15] of the said judgment, the Supreme Court observed as follows: 11. Secondly, insofar as GOMs No.340 dated 1-4- 1992 is concerned, it is not attracted at all. GOMs No.340 dated 1-4-1992 issued by the Education Department mentions: https://hcservices.ecourts.gov.in/hcservices/ "Accordingly, the following staffing pattern, was recommended by the Committee for deciding the eligibility for post for the schools in question (opened in 1987- 1988 and earlier)... " Thus, GOMs No.340 dated 1-4-1992 containing norms for sanction of posts is applicable to the High Schools opened in 1987-1988 and earlier. In the present case, the School was upgraded to High School in 1988-1989. 12. Thirdly, the Division Bench as well as the Single Judge overlooked and ignored sub-rule (2) of Rule 6 of the Rules, 1977 which reads: "6.(2) Payment of monthly staff grant shall be made only in respect of qualified and admissible teachers actually employed in minority schools whose appointments have been approved by the authorities concerned according to the number of posts sanctioned to the institution concerned." Admittedly, in the present case, the management of the School appointed Ms.Rosary as Junior Assistant to a non-sanctioned post. The explanation of the management that she was appointed in anticipation of orders from the competent authority hardly merits acceptance. 13. Fourthly, as per the norms issued in relevant GOMs the strength of the School during 1990-1991 was only 300 and above while the students' strength of the School during 1990- 1991 was only 281. As a matter of fact, it is not even the case of the management that during 1990-1991, the student strength was 300 or more. The student strength during 1993-1994 and subsequent years has no relevance. It is here that the High Court fell into a grave error because what was important under the relevant GOMs was that the student strength must have been 300 or more during the years 1988-1989, 1989-1990 and 1990-1991. 14. Fifthly, the reliance placed by the High Court on GOMs No.245/Education dated 21-2-1970 is misplaced inasmuch as the said G.O. applied to clerks who were already employed in and around the year 1964 and has no application to a Junior Assistant appointed to a non- sanctioned post in 1988-1989. https://hcservices.ecourts.gov.in/hcservices/ 15. Last but not the least, the High Court erred in directing the present Appellant 1 to sanction one post of Junior Assistant to Respondent 1, AAHS School from 1-6-1994 overlooking and ignoring that creation and sanction of posts is the prerogative of the executive and the courts cannot arrogate to themselves a purely executive power. Therefore, the petitioner cannot demand as a matter of right approval and payment of salary. 18. Subsequently, a similar question also came up before the Supreme Court in Kolawana Gram Vikas Kendra Vs. State of Gujarat and others, JT 2009 (13) SC 581. In paragraphs [6] to [8], the Supreme Court observed as follows: "6. In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there was actually posts available in the said institution as per the strength of students and secondly, whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counter affidavit. Para 3 of the said affidavit reads as under: "Minority institutions are free to select their teaching and non-teaching staff. No Government Officer or the representative of the Board was appointed in the selection committee of the minority institution. There is no interference by the Government in the administration of the schools. However, N.O.C. is required to be obtained to verify whether there is a vacancy of a teacher of a particular subject as per the workload fixed by the Gujarat Secondary and Higher Secondary Education Board specially when the government is providing grant-in-aid and that he possesses minimum required qualification for the post he is appointed." https://hcservices.ecourts.gov.in/hcservices/ 7. From the reading of aforementioned para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the rules considering the workload and the availability of the post in that institution and, secondly, whether the selected candidates had the necessary qualifications for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also. 8. In view of this clear stand taken by the State Government, we cannot pursue ourselves to hold that the aforementioned circular amounts to any unconstitutional interference in the internal working of the minority institution. In that view, we would choose to dismiss these appeals. However, Mr.Ahmadi raised another point saying that if the prior approval or the no objection certificate, as the case may be, is not awarded within seven days without any reason, then it would be hazardous for the minority institution to run itself. We do expect the competent authority to issue the no objection certificate within the time provided in the said circular which is of seven days. Of course, if there are any objections, the authority will be justified to take some more time within the reasonable limits." 19. Therefore, it must be held that the sanctioned strength is not a static factor and it has to be appraised and approved for each academic year. A vacancy, merely because it arose out of the death, resignation or retirement, will not automatically create a right in favour of the management to fill up the post and as per Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, each time when such a contingency takes place, the authority will have to decide about the desirability of filling up the post on the basis of the then workload and also the financial constraints. That is the import of the two decisions of the Supreme Court, referred to above, and the earlier decisions of this Court did not have the benefit of the ruling of the Supreme Court. 20. That apart, the petitioner had also given an undertaking dated 31.10.2008 that he agrees for the approval of his appointment as ordered by the Director with effect from 30.7.2007. Though it is added that it will be subject to the result of the writ petition, since the writ petition is not maintainable both on merits as well as https://hcservices.ecourts.gov.in/hcservices/ on locus standi, the petitioner will have to be rest content with the government grant only from the date of approval granted by the department. 21. Mr.N.Rajan, learned counsel submitted that the petitioner is without any salary for the period from 3.1.2003 to 30.7.2007. It is his own making and the college will also have to be squarely blamed. In such cases, it is not as if the petitioner is without any remedy. In this context, it is necessary to refer to the decision of the Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R.Rudani and others, [1989] 2 SCC 691. The Supreme Court has held the employer is responsible to pay salary and other benefits to their staff without waiting for the grant. In paragraph [10] of the judgment, the Supreme Court observed as follows: "10....We heard counsel for the State. He disputes the appellants' claim. In fact, he challenges the claim on a number of grounds. He says that the State is under no obligation to pay the appellants as against the sum due to the respondents. We do not think that we need rule today on this controversy. It is indeed wholly outside the scope of these appeals. We are only concerned with the liability of the management of the college towards the employees. Under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. We cannot accept such a contention." In the light of the above, finding no merits, this writ petition is dismissed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sasi https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Secretary Higher Education Department State of Tamil Nadu Fort St.George, Chennai – 9. 2. The Director of Collegiate Education College Road, Chennai – 6. 3. The Joint Director of Collegiate Education Tirunelveli Region Tirunelveli – 627 002. 1 cc To Mr.N.Rajan, Advocate, SR.49446. W.P.No.20508 of 2007 KJI(CO) RVL 25.08.2011 https://hcservices.ecourts.gov.in/hcservices/