B.Ravichandran v. The Govt

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 10.7.2007Coram:The Hon'ble Mr.JUSTICE S.RAJESWARAN W.P.Nos.4960 and 14450 of 1997W.P.No.4960/1997B.Ravichandran.. Petitionervs.1.The Govt., of Tamilnadu rep., by its Secretary Department of Education Fort St.George Madras-600 009.2.The Director of Collegiate Education College Road Madras-600 006.3.The Joint Director of Collegiate Education, Madurai Region Madurai-625 020.4.The V.H.N.S.N.College rep., by its Secretary Virudhunagar-620 001.5.C.Karunakaran Lecturer Department of Chemistry V.H.N.S.N.College Virudhunaar-620 001... RespondentsW.P.No.14450/1997C.Karunakaran.. Petitionervs. https://hcservices.ecourts.gov.in/hcservices/

1.The State of Tamil Nadu rep., by its Secretary to Govt. Education, Science & Technology Department, Fort St.George Chennai-600 009.2.The Director of Collegiate Education, Chennai-600 009.3.The Joint Director of Collegiate Education Madurai Region Madurai.4.V.H.N.S.N.College rep, by its Secretary and Correspondent, Virudhunagar-Pincode:620 001... RespondentsWrit Petition No.4960/1997 filed under Article 226 of theConstitution of India seeking to issue a writ of certiorari,calling for the records pertaining to proceedingsNo.N.K.No.01812/91/97-1 dated 28.2.1997 on the file of the 2ndrespondent and quash the same.W.P.No.14450/1997 filed under Article 226 of the Constitutionof India seeking to issue a writ of certiorarified mandamus callingfor the records pertaining to the proceedings of the 2nd respondentissued in N.M.No.01812/G1/97-1 dated 28.2.1997, quash the same anddirecting the 2nd respondent to approve the petitioner'sappointment from 2.7.1990 with all consequential service andmonetary benefits. For Petitioners: Mr.R.Subramanian, in W.P.No.4960/97. Mr.M.Muthappan, for 5th Respondent in WP.4960/97 and for the petitioner in in W.P.No.14450/97.For Respondents: Mrs.Shanmugavalli Sekar, Govt.Advocate, for R1 to R3 in both W.Ps. Mr.M.Muthappan, for R5. No Appearance, for R4. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER:Writ Petition No.4960/1997 has been filed under Article 226 ofthe Constitution of India seeking to issue a writ of certiorari,calling for the records pertaining to proceedingsNo.N.K.No.01812/91/97-1 dated 28.2.1997 on the file of the secondrespondent, quash the same.2.W.P.No.14450/1997 has been filed under Article 226 of theConstitution of India seeking to issue a writ of certiorarifiedmandamus calling for the records pertaining to the proceedings ofthe 2nd respondent issued in N.M.No.01812/G1/97-1 dated 28.2.1997,quash the same and directing the 2nd respondent to approve thepetitioner's appointment from 2.7.1990 with all consequentialservice and monetary benefits. 3.As the issue involved in both the writ petitions are relatedto each other, a common order is passed to dispose of both the writpetitions. 4.I)W.P.No.4960/1997: The petitioner was appointed as lecturerin Commerce in the 4th respondent college on 1.11.1991 in apermanent vacancy. The appointment was ratified by the 2ndrespondent by proceedings dated 4.11.1994 with effect from the dateof appointment. While so, the impugned proceedings are passed bythe 2nd respondent on 28.2.1997 which was informed through the 4threspondent college, stating that the approval granted to thepetitioner from the date of his appointment was cancelled and theapproval is now granted from 4.11.94 only. The impugned proceedingsfurther sought to recover the salary for the period from 1.11.1991to 3.11.94 in 150 monthly instalments.5.W.P.No.14450/1997: The 5th respondent in W.P.No.4960/1997 isthe writ petitioner in this Writ Petition. He was appointed aslecturer in Chemistry in 4th respondent college (the very samecollege where the writ petitioner in W.P.No.4960/97 is working) on2.7.1990. But his appointment was approved by the 3rdrespondent/Joint Director from the academic year 1993 to 1994 only,not from the date of his appointment. Therefore he sent arepresentation to the 2nd respondent-director citing the example ofanother lecturer in the Commerce Department in the very samecollege (writ petitioner in W.P.No.4960/97), whose services havebeen regularised with monetary benefit from the date of hisappointment. But the 2nd respondent by the impugned proceedingshas not only turned down his request, but cancelled the orderspassed earlier to the said lecturer in Commerce departmentregularising the services from the date of his appointment. Thisorder dated 28.2.97 is the impugned order in both the writpetitions. https://hcservices.ecourts.gov.in/hcservices/

6.Heard the learned counsel for the respective parties in boththe writ petitions and the learned Government Advocate(Education).I have also perused the documents and the judgments referred to bythem in support of their submissions.7.It is not in dispute that the impugned proceedings dated28.2.1997 were passed at the instance of the writ Petitioner inW.P.No.14450/1997, who is the 5th respondent in W.P.No.4960/1997.8.The grievance of the writ petitioner in W.P.No.14450/1997 isthat even though he was appointed in a sanctioned post by the 4threspondent college on 2.7.1990, his services were not regularisedfrom the date of his appointment but only from 25.6.93 i.e., fromthe academic year 1993 to 1994 only.9.It is also not in dispute that the writ petitioner inW.P.No.4960/1997 was appointed on 1.11.1991 but his services wereregularised by the department from 1.11.91 onwards. Thereforeciting the example of the writ petitioner in W.P.No.4960/97, thewrit petitioner in W.P.No.14450/97 submitted a representation tothe 2nd respondent-director requesting him to regularise hisservices from the date of his appointment as has been done in theother case.10.By the impugned proceedings, the 2nd respondent-directorhas not only rejected his request but also cancelled the previousorder of approval regularising the services of the writ petitionerin W.P.No.4960/1997 from the date of his appointment and orderingrecovery from his salary in 150 instalments. 11.First let me consider the grievance of the writ petitionerin W.P.No.4960/1997. A mere perusal of the impugned order wouldshow very clearly that the same has been passed without evenaffording an opportunity to the writ petitioner and therefore thesame is not only against the basic principles of natural justice,but also the order has been passed in total violation of Sec.39(2)of the Tamil Private Colleges (Regulation) Act, 1976 which governsthe 4th respondent college as admitted by the Government in theircounter affidavit. Under Sec.39(2) of the Act, only after givingan opportunity to the parties, any appeal preferred under anyprovisions of the Act should be disposed of. Further orderingrecovery of the salary already paid to the writ petitioner thattoo, in 150 instalments would definitely result in civilconsequences and it is trite law that any order passed resulting incivil consequences, should be passed only after affording anopportunity to the persons concerned. That apart, the writpetitioner cannot be blamed even assuming that some benefit wasgiven to him wrongly as he has not made any misrepresentationeither to the college or to the Government. In such circumstances, https://hcservices.ecourts.gov.in/hcservices/ the writ petitioner who is not even a party to the appeal shouldnot be burdened with a huge monetary loss without even affording anopportunity to him. Hence I have no hesitation in quashing theimpugned proceedings insofar as cancelling the earlier order ofregularisation dated 4.11.1994 regularising his services from thedate of his appointment and ordering recovery from his salary in150 instalments.12.It is also useful to refer to the judgment cited by thlearned counsel for the writ petitioner in 2006(1)MLJ 695(Kanthimathi, S.A. v. Director of School Education, Madras) whereina learned Single Judge of this court held that when order ofrecovery has been passed without giving any notice or opportunity,the same is liable to be set aside, especially when there is nomisrepresentation by the person against whom the order was passed.The learned Judge following the decision of the Supreme Courtreported in 1995(1)SCC 18 (Sahib Ram v. State of Haryana) held asfollows:"3.A perusal of the impugned order of recoverynowhere discloses that the petitioner hasmisrepresented or suppressed for the receipt ofexcess scale of pay. Further, no notice oropportunity was given to the petitioner beforethe impugned order of recovery was passed andas stated, the petitioner also retired fromservice.4.In the said judgment of the Supreme court, itis clearly stated that since the salary is paidnot on account of any misrepresentation made bythe appellant and the benefit of higher scaleof pay was made by the wrong construction madeby the Principal for which the appellant cannotbe held to be at fault. The facts in the saidjudgment applies to the facts in this case alsoand therefore the impugned order of recovery isquashed. The writ petition is allowed. Nocosts."13.In the light of the above discussion on fact and law, thewrit petition is allowed quashing the impugned order dated28.2.1997, insofar as the cancelling the earlier order passed bythe Director dated 4.11.1994 regularising the petitioner's servicesfrom 1.11.1991 and ordering recovery of the salary received by thepetitioner from 1.11.1991 to 3.11.94 in 150 instalments. No costs.14.Insofar as the W.P.No.14450/1997 is concerned, thegrievance of the writ petitioner is that when he was appointed in asanctioned post his services should have been regularised from the https://hcservices.ecourts.gov.in/hcservices/ date of his appointment and not from 25.6.1993 as regularised bythe Joint Director.15.The contention of the department in this regard in thecounter affidavit is that the management ought to have obtained theprior approval of the Director before filling up the vacant post asstated in Rule 11(1) of the Tamil Nadu Private Colleges(Regulation) Rules, 1976. It is further stated that only byproceedings dated 8.12.1993, the Director fixed the strength of theChemistry Department in the college as 14 posts for the academicyear 1993-94 and therefore the appointment of the writ petitionerwas admitted for grants with effect from the date of thecommencement of the academic year 1993-94.16.The learned counsel for the petitioner relied on anunreported decision of this court dated 29.3.2006 made inW.P.No.28396/2004 wherein a learned Single Judge of this court heldas follows:"8.At the outset it has to be stated that thepetitioner was appointed by the thirdrespondent to the post of Lecturer as againstthe vacancy that arose due to the retirement ofone Dr.A.M.Vasudevan Pillai and as per rules anapproval was sought for from the secondrespondent, which was rejected stating that noprior approval was obtained.9.So, the question that now arises forconsideration is as to whether the appointmentof the petitioner is well within the sanctionedpost. In this context, it would be worthwhileto extract Rule 11(1) of the Rules:"The number of teachers employed in acollege shall not exceed the number of postsfixed by the Director from time to time, withreference to the academic requirements andnorms of work load prescribed by the respectiveUniversities and overall financialconsiderations".10.Thus it is evident from the above, any suchappointment of teachers should not exceed thenumber of posts fixed by the Director. In thepresent case, the third respondent college hasbeen sanctioned with two posts of MalayalamLecturers and since a vacancy has arisen due tothe retirement of one Dr.A.M.Vasudevan Pillai,the petitioner herein was appointed throughdirect recruitment process in the said vacancy. https://hcservices.ecourts.gov.in/hcservices/

11.Further as regards the other limbs of therule relating to the norms of the workload andfinancial consideration also, when there is noreduction of workload in the third respondentcollege and in the absence of any order passedby the second respondent pointing out any suchreduction or financial constraints, it can beheld that the appointment of the petitioner isdone in accordance with the Rule and therefore,no prior permission is required to appoint thepetitioner.12.Therefore, it is clear that the order passedby the second respondent is contrary to Rule 11(1) of the Rules and has to be set aside.Accordingly, the same is set aside. The secondrespondent is directed to pass the order ofapproval to the petitioner from the date of hisinitial appointment within a period of sixweeks from the date of receipt of a copy ofthis order. Consequently, connected WPMP isclosed." 17.From the above it is very clear that in the absence of anyorder passed by the Director pointing out any such reduction, itcan be held that the appointment of a person in a sanctioned postin accordance with rules, no prior permission is required.18.In this case also it is not in dispute that the writpetitioner was appointed in the place of one Dr.A.Chellamani whowas working in a permanent post and who resigned from the college,on 22.7.1989 and he was relieved from the management on 17.10.89.Therefore it is very clear that the writ petitioner's appointmentwas only in an existing and sanctioned permanent vacancy andtherefore his services ought to have been regularised from the dateof the appointment only. Hence I am inclined to allow the writpetition as prayed for.19.In the result, the impugned order dated 28.2.1997 isquashed insofar as rejecting the writ petitioner's representationfor regularising his services from 2.7.1990 and the 2nd respondentis directed to approve the petitioner's appointment from 2.7.1990with all consequential service benefits and mandatory benefits.The monetary benefits are directed to be paid to the writpetitioner by the 2nd respondent within three months from the date https://hcservices.ecourts.gov.in/hcservices/ of receipt of copy of this order. The writ petition is allowedaccordingly. No costs. SksSd/-Assistant Registrar/True Copy/Sub Assistant Registrar.To1.The Secretary to Govt of Tamil Nadu, Education, Science & Technology Department, Fort St.George Chennai-600 009.2.The Director of Collegiate Education, College Road, Chennai-600 006.3.The Joint Director of Collegiate Education Madurai Region Madurai.4.The Secretary to Government of Tamil nadu, Education Department,Fort St George, Chennai 9.•1 cc to Mr. R. Subramanian, Advocate SR No. 41560•1 cc to the Government Pleader SR no. 41820•1 cc to Mr. M. Muthappan, Advocate SR No. 41611•JRG(CO)•SR/19.7.2007 order,W.Ps.4960 & 14450/97.