IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 18-09-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT APPEAL Nos.643 & 644 OF 1997 K.Sumathy ... Appellant in both appeals -vs- 1.The State of Tamil Nadu, rep.by the Special Commissioner and Secretary to Government, Education Department, Fort St.George, Madras. 2.The Director of Collegiate Education, Madras – 600 006. 3.The Deputy Director of Collegiate Education, Tiruchi Region, Tiruchi – 620 002. 4.The Secretary & Correspondent, Tranquebar Bishop Manickam, Lutheran College (TELC), Prayar – 609 307, Thanjavur District. ... Respondents in both appeals Appeals under Clause 15 of the Letters Patent. W.P.No.17860/90 presented under art 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the concerned records from the file of the Second Respondent relating to his proceedings in No.105419/A4/89 quash the order dated 20.8.90 consequently issue directions to the respondent 1 to 3 to approve the petitioners approintment as Lecturer in Tamil in the Fourth respondent college and consequently release grants for the said post with effect from 21.10.85 together with interest at the rate of exemplary costs. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.6382/91:- presented under art 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the concerned records from the file of the 4th Respondent pertaining to proceedings in Ref.NO."Nil" dated 5.4.1991 quash the order dated 5.4.91 consequently direct the 4th respondent to reinstate the eptitioner in service as approved staff with effect from 21.12.85 and pay full wages together with intrest of 12% p.a. award exemplary costs. For appellant : Mr.Veera Kathiravan For respondents 1 to 3 : Mr.S.Rajasekar, Addl.Govt.Pleader (Education). For respondent 4 : Mr.M.Joseph Thomas Jerome J U D G M E N T V.DHANAPALAN,J. These Writ Appeals are preferred against the common order, dated 30.04.1997, passed in W.P.Nos.17860 of 1990 and 6382 of 1991, in and by which the impugned orders of non-approval of appointment and termination of the appellant by the respondents were upheld by a learned single Judge. 2. While W.P.No.17860 of 1990 was filed challenging the order of the second respondent, dated 20.08.1990, and seeking a direction to the respondents 1 to 3 to approve the appointment of the appellant as a Lecturer in Tamil in the fourth respondent college, W.P.No.6382 of 1991 was for quashing the order of termination, dated 05.04.1991, passed by the fourth respondent against the appellant. Therefore, the decision in Writ Appeal No.643 of 1997, which is filed against W.P.No.17860 of 1990, will have a bearing on W.A.No.644 of 1997 as well. 3. The case of the appellant was that fourth respondent college was a private and minority college within the meaning of Sections 2 (8) and 2 (7) of the Tamil Nadu Private Colleges (Regulation) Act,1976; during the year 1979-1980, pre-university courses were abolished in the State and in view of the same, several teachers became surplus; due to the agitation conducted by the teachers' organisation, the first respondent came out with a scheme to redeploy such of those teachers who were rendered surplus by giving job security to their employment; under the said scheme, https://hcservices.ecourts.gov.in/hcservices/ the teachers, who were rendered surplus in a particular college, were to be redeployed in other private colleges with their lien continued to be retained in the parent college; during the academic year 1984-1985, the fourth respondent college, in their Tamil department, had an admitted strength of 1+5 i.e., one Professor and five Assistant Professors; even before the sanctioned strength, two teachers in the fourth respondent college, namely, M/s.D.Pushparani and D.Jayarani Rajadurai, were rendered surplus and redeployed in other colleges; as the students strength started improving in the fourth respondent college and in view of opening of new disciplines, the requirement for additional staff arose, as a result of which, both the redeployed teachers were recalled to the fourth respondent college; however, by orders of the second respondent, dated 02.01.1985, Jayarani Rajadurai was allowed for permanent migration to the college in which she was redeployed and since there was no fall in students' strength for the academic year 1985-1986, the fourth respondent appointed the appellant as an Assistant Professor in Tamil with effect from 21.10.1985 in a permanent vacancy. 4. It was also the case of the appellant that her appointment as against the sanctioned strength in the fourth respondent college did not require any prior approval by the second and third respondents since the fourth respondent was a minority college and the provisions for prior approval did not arise; the fourth respondent college, by a letter dated 30.10.1989, sent a representation to the second respondent, requesting them to approve her appointment, pursuant to which the second respondent, by an order, dated 20.08.1990, rejected the said request, stating that the appointment of the appellant was made by the fourth respondent unilaterally, whereby the fourth respondent, by his order dated 05.04.1991, terminated the services of the appellant with effect from 13.04.1991. 5. The stand of the respondents was that the teaching staff strength was fixed for the Tamil Department of the fourth respondent college for the years 1984-1985 and 1985-1986, based on the workload; it was assessed that the fourth respondent college was entitled to have one Head of Department and five Lecturers for the year 1984-1985 and one Head of Department and four Lecturers for the year 1985-1986; the number of eligible posts would be fixed as per the actual requirement on the basis of work load norms and the surplus posts would be reduced; in the instant case, as the appellant's appointment made by the fourth respondent on 21.10.1985 was found to be surplus than the actual requirement, the same was not approved and the fourth respondent college, accordingly, terminated her services from 13.04.1991. https://hcservices.ecourts.gov.in/hcservices/ 6. The contention of the learned counsel for the appellant is that the appellant was appointed in the sanctioned post on 18.10.1985 and, hence, her services cannot be terminated. The said contention is rebutted by the learned counsel for the respondents stating that the appellant was appointed beyond the actual requirement and hence her appointment was not approved and she was terminated from service. 7. Further, according to the appellant, the staff strength of the fourth respondent college for the academic year 1985-1986 also continued the same as that of the year 1984-1985 and, hence, she was appointed by the fourth respondent as Assistant Professor in Tamil Department in a permanent vacancy, whereas the stand of the Department was that since the students strength had gone down in the year 1985-1986, the staff strength for Tamil Department had been reduced to 1 + 4 and in those circumstances, the request of the fourth respondent to approve the appointment of the appellant on 21.10.1985 was turned down. 8. The proceedings of the second respondent, dated 24.05.1985, are quite relevant for deciding this case. The relevant portions of the said proceedings read thus : "Following the usual rules, the managements of the colleges are permitted to fill up the vacancies caused due to retirement or resignation or for any other reasons of the teachers who are working as teachers under the sanctioned posts for the release of grant for the year 1984-1985, provided the work load for the year 1985-1986 is not reduced from that of 1984-1985. While making such appointments, excess number of teachers should not be working than against the sanctioned number of posts for grant by the Director in any department at any time. If in Departments, if there exist surplus teachers but protected by job security and for whom grant is sanctioned but retained in the parent department owing to the reason that no transfer is made under surplus teacher redeployment scheme last year, such departments should not fill up the vacancies by new appointments. In such Departments, and in such vacancies, the surplus teachers must be allowed to serve. If in any department, surplus teachers are transferred to other colleges under redeployment scheme in such departments new https://hcservices.ecourts.gov.in/hcservices/ appointments should not be made against the vacancies caused due to the above mentioned reasons. For such vacancies, surplus teachers who are transferred to other colleges under surplus teacher redeployment scheme should be called back to their parent college." 9. On an analysis of the above proceedings, what comes to be known is that the fourth respondent could fill up the vacancies caused due to retirement or resignation or for any other reasons of the teachers, who were working as teachers under the sanctioned posts, for release of grant for the year 1984-1985, subject to the condition that work load for the year 1985-1986 was not reduced from that of 1984-1985 and while making such appointments, excess number of teachers should not be working than the sanctioned number of posts for grant by the Director. Moreover, if in any Departments there existed surplus teachers but protected by job security and for whom grant was sanctioned but retained in the parent department owing to the reason that no transfer was made under surplus teacher redeployment scheme last year, such departments should not fill up the vacancies by new appointments and in such Departments and vacancies, the surplus teachers must be allowed to serve. Besides, if, in any Departments, surplus teachers were transferred to other colleges under redeployment scheme, in such Departments, new appointments should not be made against the vacancies caused due to the above mentioned reasons. For such vacancies, surplus teachers who are transferred to other colleges under surplus teacher redeployment scheme should be called back to their parent college. 10. In the appointment order, dated 18.10.1985, it is specifically stated that the appointment of the appellant was subject to the approval of the University and the Directorate of Collegiate Education. In the proceedings of the Director of Collegiate Education, dated 10.12.1985, it was informed that the sanctioned strength for the fourth respondent college in Tamil Department for the year 1985-1986 was one Professor and four Assistant Professors. Further, the said proceedings go to the effect that for no reason, the number of teachers in any Department should exceed the sanctioned strength for grant by the Director. Even in the proceedings of the Joint Director of Collegiate Education, dated 11.06.1987, it was informed to the fourth respondent that for the year 1985-1986, permission was granted only for one Professor and four Assistant Professors. It was also stated therein that Mrs.Jayarani Rajadurai was working as a surplus teacher and, in that context, an explanation was called for from the fourth respondent on what basis the vacancy caused by the said teacher was filled up. Also, in the proceedings of the Director of Collegiate Education, dated 22.07.1989, it was mentioned that on the basis of the work load for the year 1985-1986 since the Tamil https://hcservices.ecourts.gov.in/hcservices/ Department of the fourth respondent college qualified only one Professor and four Assistant Professors, the said posts were sanctioned for the purpose of grant and orders given vide the proceedings of the Director, dated 10.12.1985. In the proceedings of the Joint Director of Collegiate Education dated 27.09.1989 also, it was made clear that since there existed no post, the proposal for the appointment of the appellant could not be approved. The same was reiterated in the proceedings of the Director of Collegiate Education, dated 20.08.1990, stating that the appointment of the appellant, which was made unilaterally by the Collegiate Secretary, could not be approved. 11. It is admitted by the appellant that even before the sanctioned strength, two teachers in the fourth respondent college, namely, M/s.D.Pushparani and D.Jayarani Rajadurai, were rendered surplus and redeployed in other colleges and they were protected under job security. Due to increase in students strength, the requirement for additional staff arose, as a result of which, both the redeployed teachers were recalled to the fourth respondent college. However, by orders of the second respondent, dated 02.01.1985, Mrs.Jayarani Rajadurai was allowed for permanent migration to the college in which she was redeployed. But, unfortunately, since there was a fall in students strength and reduction in work load for the academic year 1985-1986, as could be seen from the counter filed by the Department that the total work load in Tamil Department for the year 1985-1986 was reduced to 91 hours as compared to 106 hours during the year 1984-1985, the sanctioned strength approved by the Department for the year 1984- 1985 was not approved for the year 1985-1986, as it was a condition in the proceedings of the second respondent, dated 24.05.1985, that the work load for the year 1985-1986 should not be reduced from that of 1984-1985. Though the fourth respondent requested the respondents 2 and 3 to approve the appointment of the appellant, the Deputy Director, by his proceedings dated 11.02.1986, informed the fourth respondent that the appointment of the appellant was irregular and the same could not be approved. 12. When the second respondent passed an order fixing the staff strength of the fourth respondent as one Professor and four Assistant Professors from the year 1985-1986 and the appointment of the appellant has been turned down by the Deputy Director by the proceedings dated 11.02.1986, the contention of the learned counsel for the appellant that the appointment of the appellant was in accordance with the provisions of the Act and that the fourth respondent was entitled to maintain the same strength as that of the year 1984-1985 does not merit acceptance. Therefore, by no stretch of imagination, it can be stated that the appointment of the appellant was within the sanctioned strength. As such, no salary was also allowed by the third respondent to the appellant. https://hcservices.ecourts.gov.in/hcservices/ As per Rule 11 (1) of Tamil Nadu Private Colleges (Regulation) Rules, 1976, the second respondent is competent to fix the staff strength. Since the appointment of the appellant has not been approved, the order of termination passed against the appellant cannot be said to be perverse. Also, when the proceedings of the second respondent, dated 24.05.1985, are categorical to the effect that if, in any department, surplus teachers are transferred to other colleges under redeployment scheme, in such departments, new appointments should not be made against the vacancies caused thereto, which proceedings are much prior to the appointment of the appellant, the fourth respondent cannot appoint the appellant in the vacancy caused due to the redeployment of Mrs.Jayarani Rajadurai. The proceedings of the second respondent, dated 21.10.1984, would clearly go to show that the vacancy was only in Physics Department and not in Tamil Department. 13. It is an ordained principle of law that in the matter of appointment to a private college, it is an essential ingredient that there must be approval of appointment by the competent authority. When such authority has not approved the appointment, the appellant cannot claim that she is legally entitled to it. That apart, she cannot have a right to claim the appointment in a vacancy caused due to transfer of surplus teachers. Under the circumstances, as rightly spelt out in the impugned proceedings of the respondents and also confirmed by the learned single Judge, the appellant has no right to get appointment in the fourth respondent institution. 14. To sum up, the case of the appellant goes mainly for two reasons viz., (i) non-approval of appointment of the appellant by the Department due to excess cadre strength and (ii) in view of the proceedings of the second respondent, dated 24.05.1985, new appointments should not be made against the vacancies caused due to transfer of surplus teachers to other colleges under redeployment scheme. 15. Therefore, we see no reason to interfere with the order passed by the learned single Judge. Accordingly, we dismiss these Writ Appeals. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. dixit https://hcservices.ecourts.gov.in/hcservices/ To 1.The Special Commissioner and Secretary to Government, State of Tamil Nadu, Education Department, Fort St.George, Madras. 2.The Director of Collegiate Education, Madras – 600 006. 3.The Deputy Director of Collegiate Education, Tiruchi Region, Tiruchi – 620 002. 1 cc To The Government Pleader, SR.53376 1 cc to Mr.Veerakathiravan, Advocate, SR. 53457 1 cc to mr.M. Joseph Thomas Jerome, Advocate, SR. 52895 W.A.Nos.643 & 644 OF 1997 TEJ(CO) kk 26/9 https://hcservices.ecourts.gov.in/hcservices/