IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.08.2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.12253 OF 2009 AND M.P.NOS.1 AND 2 OF 2009 V.Kasthuri ... Petitioner Versus 1.The Registrar University of Madras Chepauk, Chennai – 5. 2.The South Indian Vanniyar Educational Trust College Rep.by its Secretary Gowrivakkam, Chennai – 73. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the record pertaining to the process of recruitment as advertised in Hindu daily dated 14.06.2009 so far as to the post of Guest Faculty for Shift – 1, Tamil Lecturer and quash the same and consequently to direct the 2nd respondent to reinstate the petitioner in service with continuity of service and with backwages and other attendant benefits. For Petitioner : Mr.S.T.Varadarajulu For Respondent - 1 : Mr.B.Ramamoorthy For Respondent - 2 : Mr.N.Thiagarajan Senior counsel for Mr.R.Lakshminarayan O R D E R The second respondent runs Arts and Science College at Gowriwakkam, Chennai, which is affiliated to the first respondent – University. The college is an aided college as far as the courses that are offered during Shift–I, i.e. from 08.30 a.m. to 01.30 p.m. That is, the teaching and non-teaching staff employed in Shift–I are paid salary by the Government. The second respondent also conduct courses during Shift–II, i.e. from 01.30 p.m. to 06.15 p.m. The courses conducted in the Shift–II are on self-financing basis. The https://hcservices.ecourts.gov.in/hcservices/ second respondent obtained approval from the first respondent for conducting courses both during Shift–I and Shift–II. Without getting approval, the second respondent cannot conduct any course. If the second respondent conducts any course without approval, the students could not be admitted for the examinations conducted by the first respondent-University and the first respondent - University cannot confer degree to those students. 2.The petitioner is a Post Graduate in M.A. Tamil and M.A. Linguistic. She also possesses M.Phil., in Tamil Literature and she is undergoing Ph.D., in Tamil Literature in the first respondent – University. According to the petitioner, she was employed as a Guest Lecturer, on hourly basis, at the rate of Rs.100/- per hour from February 2007 in the second respondent – college, during Shift – I. While so, as her husband contested in the election for the the post of Trustee in the second respondent – college and lost the election, the petitioner was denied employment from 17.02.2009. 3.The second respondent - college published an advertisement in the newspaper on 14.06.2009 calling for applications to fill the post of Guest Lecturers in various departments, including Tamil department, for Shift–I. Hence, the petitioner has filed the present writ petition seeking to quash the advertisement and for a consequential direction to the second respondent to reinstate her in service with continuity of service with backwages and other attendant benefits. 4.Notice of motion was ordered on 06.07.2009. The second respondent filed counter affidavit. The second respondent also filed additional counter affidavit. 5.It is stated in the counter affidavit that the petitioner was employed only as a "Guest Lecturer". A Guest Lecturer is not treated as a Lecturer recruited to the service in accordance with the Rules. She is not recruited against a regular vacancy, enabling her to claim benefits for the post. It is further stated that she gave lectures for 86 hours in the academic year 2007-2008 and she was paid Rs.8600/- as remuneration for the same. In the academic year 2008- 2009, she gave lectures for 136 hours and she was paid Rs.13600/- as remuneration. Since there was no workload warranting her employment, she was not asked to give lectures after 17.02.2009 by the Head of the Department of Tamil Department. It is also stated in para 5 of the counter affidavit that the first respondent – University endorsed the action of the second respondent calling for applications through advertisement inviting "Guest Lecturers", as the same is not barred in any statute or law. 6.In the additional counter affidavit, it is stated that she is not qualified for appointment as Guest Lecturer as per the UGC norms, as she does not possess Ph.D. Though the advertisement was https://hcservices.ecourts.gov.in/hcservices/ issued in the newspaper viz., "The Hindu" on 14.06.2009 by the second respondent - college for the post of Guest Lecturers in Tamil, in Shift–I, the post was not filled up, as the Head of the Department of Tamil Department informed the Management that there was no workload in the Department of Tamil. Hence, the second respondent dropped the selection of Guest Lecturers in Tamil Department, as advertised. It is further stated that the petitioner cannot question the validity of the advertisement. 7.Heard Mr.S.T.Varadarajulu, learned counsel for the petitioner; Mr.B.Ramamoorthy, learned counsel for the first respondent and Mr.N.Thiagarajan, learned senior counsel for the second respondent. 8.Pursuant to the queries raised by this Court, both the learned counsel for the first respondent and the learned senior counsel for the second respondent gave various details. It is shocking to note that all the Lecturers employed in Shift–II, which is conducted on self-financing basis, are Guest Lecturers and no one is a regular Lecturer. Those Guest Lecturers are paid a paltry sum at the rate of Rs.100/- per hour or a meagre consolidated salary. 9.The learned counsel for the first respondent - University produced a letter giving details that 11 courses are conducted in Shift – II and the Shift – II is called as Evening College. In fact, it is no more a evening college. The following are the courses offered in the second respondent college and the students strength, as approved by the first respondent – University, in Shift-II. S.No Name of the Course No. of course s Sanctione d strength Medium Year of affiliatio n 1 BBA Business Administration 1 70 E 2008-2009 2 B.Com – General 1 70 E 2008-2009 3 B.Com – General 1 70 E 2008-2009 4 B.Sc., Bio-Chemistry 1 30 E 1993-1994 5 B.Sc., Computer Science 1 50 E 2006-2007 6 B.Sc., Electronics and Communication Science 1 30 E 1993-1994 7 B.Sc., Information Systems Management 1 50 E 2001-2002 8 B.Sc., Visual Communication 1 50 E 2009-2010 9 B.C.A. Computer Application 1 50 E 2009-2010 https://hcservices.ecourts.gov.in/hcservices/ S.No Name of the Course No. of course s Sanctione d strength Medium Year of affiliatio n 10 M.C.A. Computer Applications 1 45 E 1993-1994 11 M.Sc., Bio – Chemistry 1 26 E 1998-1999 10.The learned counsel for the first respondent - University also produced another letter dated 17.08.2010 of the University giving various details. The Colleges have not obtained qualification approval for Guest Lecturers appointed by them, while all the courses are handled by Guest Lecturers only. The relevant passage from the said letter is extracted hereunder: "Since the colleges are not obtaining qualification approval for Part time / Guest Lecturers appointed by them, the details regard to the number of part time lecturers appointed by the affiliated colleges are not available with the University." 11.As stated above, all the Lecturers employed in Shift – II are Guest Lecturers. It is categorically admitted by the learned senior counsel for the second respondent that all the Lecturers in Shift – II are Guest Lecturers. But the second respondent - college has not obtained qualification approval for the Lecturers, who are handling classes to the approved courses. 12.The learned counsel for the first respondent - University also produced a letter dated 21.07.1999 of the University addressed to the second respondent – college approving the courses in the evening college. The letter is relating to granting of approval / Provisional Affiliation for starting the courses for the academic year 1999-2000 in the evening college under un-aided pattern, subject to the fulfilment of conditions of affiliation. The aforesaid courses are permitted in the second respondent - college with similar conditions of affiliation. Condition No.13 of affiliation states that every year as on 1st of August, the second respondent - college should submit the return of staff employed in the evening college (i.e. in Shift – II). Condition No.28 of affiliation states that the remuneration payable to the Lecturers in the evening college should be the same as in the regular college. Condition No.33 of affiliation states that an agreement should be entered into with each Lecturers, as per the requirements of the University / Tamil Nadu Private Colleges (Regulation) Act and Rules framed thereunder. Condition Nos.13, 28 and 33 of affiliation are extracted hereunder: "13.The Return of Staff in the prescribed form shall be forwarded separately for the evening college https://hcservices.ecourts.gov.in/hcservices/ courses on the prescribed date [i.e. 1st August]; ... 28.The work of the teachers in the evening colleges shall not exceed that prescribed for regular colleges. The remuneration shall also be the same. The Professor (I/c) shall be given an extra remuneration for the additional responsibility; ... 33.An agreement shall be entered into with each teacher to be appointed as per the requirements of the University / Tamilnadu Private Colleges [Regulation] Act and Rules thereunder." 13.At this juncture, it is relevant to state that the Tamil Nadu Private Colleges (Regulation) Act and the Rules framed thereunder, govern the conditions of services of the Lecturers employed both in the regular college and the evening college. As per the said Act, an agreement in the prescribed form has to be entered into, between the Lecturers and the colleges, on their appointment. Admittedly, no such agreement has been entered into, as none was appointed on regular basis. Even in the case of temporary Lecturers, a form of agreement is provided under the Act. 14.It is unfortunate that neither permanent nor temporary Lecturers are appointed and on the other hand, part time / Guest Lecturers are appointed contrary to the statute referred to above. Condition No.38 of affiliation states that approval should be obtained from the University before appointing the teaching staff. Condition No.39 states that all conditions of affiliation laid down in Chapter XXVI Laws of the University Calendar, Volume– I 1985, as amended should be strictly followed. In this regard, condition Nos.38 and 39 of affiliation are extracted hereunder: "38.Approval shall be obtained from the University before appointing the teaching staff; 39.All conditions of affiliation laid down in Chapter XXVI Laws of the University Calendar, Volume-I 1985 as amended shall be strictly followed." 15.Chapter XXVI of the statutes of the University of Madras deals with affiliation and approval of colleges. Those affiliation conditions prescribed under the statutes are observed more in breach by the second respondent. The scenario is worse in the case of Lecturers employed in the self financing section i.e. during Shift – II. As stated above, all the Lecturers are Guest Lecturers and no one is a permanent Lecturer and the second respondent has not obtained qualification approval as contemplated under Section 15 of the Tamil Nadu Private Colleges (Regulation) Act. This is the sorry state of affairs. A Division Bench of this Court in M.SARAVANAKUMAR AND https://hcservices.ecourts.gov.in/hcservices/ OTHERS VS. THE SECRETARY TO GOVERNMENT EDUCATION DEPARTMENT reported in 2005 (3) MLJ 538 has categorically deprecated the appointment of Guest Lecturers for years together without filling the regular vacancies in Government Arts and Science Colleges and issued directions to the Government to fill the regular vacancies in a stipulated period. The Division Bench of this Court also held that appointment of Guest Lecturers without filling the regular posts is illegal. The said judgment squarely applies to the facts of this case. Paras 31 to 38 of the said judgment are extracted hereunder: "31.However, before parting with these cases we wish to observe that it was not proper for the State Government to keep making appointments of guest lecturers year after year since the year 2000. This is demeaning to the lecturers who are treated almost like casual or daily wage employees, and are given remuneration on an hourly basis and that too without even giving them any formal appointment order. What interest in their work will such teachers take, and what commitment will they have. There is no security of tenure for such teachers. Also, they are paid a paltry sum upto a maximum of Rs.4,000 per month. Is this the way to treat the gurus of our youth? Even a peon in government service often gets more than Rs.4,000 per month. Should our teachers be treated worse than peons? 32.It is also not in the interest of the students or the public to appoint guest lecturers on a large scale, because teachers who are given such appointments are not likely to take much interest in their work. They will not be able to work with a free mind and will feel all the time that there is a Damocles Sword hanging over their heads. Surely the students in Tamil Nadu deserve good teachers. Good education is of paramount importance for the progress of society in the modern age. 33.We fail to understand why for the past 5 years no regular recruitment has been made through the teachers recruitment board, and instead this policy of appointing guest lecturers has been continued year after year. The teachers are the gurus of society, and they must be given proper respect, proper status, and a secure job, so that they can function with a free mind and take interest in their work. This policy of making appointments of guest lecturers is not conducive to this end, and must now be revoked. https://hcservices.ecourts.gov.in/hcservices/ 34.In this connection we may refer to the decision of the Supreme Court in Rattanlal V. State of Haryana, A.I.R. 1987 S.C. 478. It appears that in the State of Haryana, too, the State Government was making ad hoc appointments of teachers year after year. In this connection the Supreme Court observed:- "In all these petitions the common question which arises for decision is whether it is open to the State Government to appoint teachers on an ad hoc basis at the commencement of an academic year and terminate their services before the commencement of the next summer vacation, or earlier, to appoint them again on an ad hoc basis at the commencement of next academic year and to terminate their services before the commencement of the succeeding summer vacation or earlier and to continue to do so year after year. A substantial number of such ad hoc appointments are made in the existing vacancies which have remained unfilled for three to four years. It is the duty of the State Government to take steps to appoint teachers in those vacancies in accordance with the rules as early as possible. The State Government of Haryana has failed to discharge that duty in these cases. It has been appointing teachers for quite some time on an ad hoc basis for short periods as stated above without any justifiable reason. In some cases the appointments are made for a period of six months only and they are renewed after a break of a few days. The number of teachers in the State of Haryana who are thus appointed on such ad hoc basis is very large indeed. If the teachers had been appointed regularly, they would have been entitled to the benefits of summer vacation along with the salary and allowances payable in respect of that period and to all other privileges such as casual leave, medical leave, maternity leave etc. available to all the Government servants. These benefits are denied to these ad hoc teachers unreasonably on account of this pernicious system of appointment adopted by the State https://hcservices.ecourts.gov.in/hcservices/ Government. These ad hoc teachers are unnecessarily subjected to an arbitrary “hiring and firing” policy. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad hoc basis with miserable conditions of service. The Government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of “ad hocism” followed by the State Government for a long period has led to the breach of Article 14 and Article 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer. 2.We, therefore, direct the State Government to take immediate steps to fill up in accordance with the relevant rules the vacancies in which teachers appointed on an ad hoc basis are now working and to allow all those teachers who are now holding these posts on ad hoc basis to remain in those posts till the vacancies are duly filled up. The teachers who are now working on such ad hoc basis if they have the prescribed qualification may also apply for being appointed regularly in those posts. The State Government may also consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to those posts in the case of those who have been victims of this system of “ad hoc” appointments. If any of the petitioners in these petitions has under any existing rule acquired the right to be treated as a regularly appointed teacher, his case shall be considered by the State Government and an appropriate order may be. passed in his case. 3. We strongly deprecate the policy of the State Government under which “ad hoc” teachers are denied the salary and https://hcservices.ecourts.gov.in/hcservices/ allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These “ad hoc” teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules." 35.The above decision of the Supreme Court was followed in Sri Rabinarayan Mohapatra V. State of Orissa, A.I.R. 1991 S.C. 1286. It appears that in the State of Orissa, teachers were given ad hoc appointments for 89 days, and thereafter given fresh appointment after one day break in service. This had been going on for 4 years. The Supreme Court held this to be arbitrary and illegal. The Supreme Court, vide para.6, observed:- "The Validation Act has been enacted by the Orissa legislature with the obvious object of granting relief to those members of teaching community who are being exploited for years together by keeping them in short spell appointments like 89 day-appointments as here with one day break and in the process denying them their rightful dues and other service benefits. In spite of repeated deprecations by this Court the practice continues to be followed by various State Governments in the country. Under the Constitution the State is committed to secure right to education for all citizens. Bulk of our population is yet illiterate. Till the time illiteracy is effaced from the country the resolution enshrined in the Preamble cannot be fulfilled. Education is the dire need of the country. There are neither enough schools nor teachers to teach. Insecurity is writ large on the face of the teaching community because of nebulous and unsatisfactory conditions of service. In order to make the existing educational set up effective and efficient it is necessary to do away with ad hocism in teaching appointments. An appointment on https://hcservices.ecourts.gov.in/hcservices/ 89 day basis with one day break which deprives a teacher of his salary for the period of summer vacation and other service benefits, is wholly arbitrary and suffers from the vice of discrimination". 36.The ratio of the decisions of the Supreme Court in Rattanlal V. State of Haryana, A.I.R.1987 S.C.478 and Sri Rabinarayan Mohapatra V. State of Orissa, A.I.R. 1991 S.C.1286 squarely applies to the facts of the present case. 37.We therefore direct that after 31.3.2006 all appointments of lecturers, and other teaching posts, including Principals, in Government Colleges in Tamil Nadu shall be made on a regular basis by selection through the teachers recruitment board or any other legally constituted selection body and not by appointing guest lecturers. Such regularly selected teachers will be paid the U.G.C. grade salaries and guaranteed security of tenure. They shall also be given all benefits and perquisites allowable to regularly selected teachers. No guest lecturers or ad hoc lecturers will be appointed or continued after 31.3.2006. 38.The process for making regular appointments on all such vacancies which have not been filled in by regular selection must immediately begin, and must be completed within a reasonable time, so that on and after 1.4.2006 all the incumbents in the State will be regularly selected lecturers and not guest lecturers or ad hoc lecturers. We are giving adequate time to the State Government to switch over from the system of appointing guest lecturers to the system of appointing regular lecturers, etc. During this period of 8 or 9 months the Government must complete the exercise of making selections through the teachers recruitment board or other legally constituted selection body. The selection body must ensure that the most meritorious persons are selected as teachers so that the youth of Tamil Nadu may be benefited." 16.Shift–I also employs Guest Lecturers and the second respondent has not sought qualification approval for those Guest Lecturers. As on today, there are 4 Lecturers employed in the Department of Tamil in Shift-I, as per the letter dated 06.08.2010 of the second respondent - college. As per the said letter, Dr.T.Marimuthu, Tmt.M.Nalini, Dr.G.Bhuvaneswari and https://hcservices.ecourts.gov.in/hcservices/ Dr.B.Vijayasamundeswari are the teaching staff in the Department of Tamil in Shift – I. Dr.T.Marimuthu is the Head of the Department. While Dr.T.Marimuthu and Tmt.M.Nalini are regular Lecturers, Dr.G.Bhuvaneswari and Dr.B.Vijayasamundeswari are Guest Lecturers. That is, 50% in the regular college in the Tamil Department are Guest Lecturers. These two Guest Lecturers were appointed in 2010. The appointments of Dr.G.Bhuvaneswari and Dr.B.Vijayasamundeswari, after sending out the petitioner, are sought to be justified on the ground that they are Ph.D. holders, while the petitioner does not possess Ph.D. It is submitted that had the petitioner possessed Ph.D., she could not have been denied employment. 17.According to the learned senior counsel for the second respondent, the petitioner was not given employment, since she did not possess Ph.D. As already stated, the additional counter affidavit states that she was not given any appointment order as she did not possess Ph.D. But that is not the reason given in the counter affidavit for denying employment to the petitioner. The reason given in the counter affidavit is that there was no workload warranting for her employment as Guest Lecturer after 17.02.2009. It is stated that no Guest Lecturer was appointed pursuant to the advertisement dated 14.06.2009 that is put to challenge. But the learned senior counsel admits that both Dr.G.Bhuvaneswari and Dr.B.Vijayasamundeswari were appointed as Guest Lecturers only in 2010. There are other Guest Lecturers also in other Departments in Shift–I. Those Guest Lecturers are also either paid at the rate of Rs.100/- per hour or they are given a paltry sum as consolidated salary. The second respondent has not obtained qualification approval for the Guest Lecturers, either if they are employed in Shift–I or in Shift–II, as they are not regular Lecturers. While some are Guest Lecturers in Shift–I and others are regular Lecturers, but Shift–II is handled only by Guest Lecturers. Employment of Guest Lecturers without appointing regular Lecturers, is illegal and opposed to the aforesaid decision of the Division Bench judgment of this Court. 18.The learned senior counsel for the second respondent gave another letter dated 06.08.2010 furnishing the details of the teaching staff employed in Tamil Department in Shift – II. As per the said letter, there are 3 teachers in Shift – II in Tamil Department. They are Dr.S.Chidambaram, Dr.R.Kamala Murugan and Dr.B.Ramachandran. All the three Lecturers are Guest Lecturers. Dr.S.Chidamabaram is the Head of the Department and the other two are Lecturers. That is, even the Head of the Department is not a regular Lecturer. It is pertinent to note that the third person viz., namely Dr.B.Ramachandran