Dr.P.Arthur Daniel v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:13.10.2008CORAM:THE HON'BLE MR. JSUTICE P.JYOTHIMANIWRIT PETITION NO.16778 of 2008 and M.P.No.2 of 2008.Dr.P.Arthur Daniel.. Petitionervs.1.The State of Tamil Nadu rep. By its Secretary to Government Higher Education Department Secretariat Chennai 9.2.The Director of Collegiate Education College Road, Chennai 6.3.The Correspondent Scot Christian College Nagercoil... Respondents Prayer: Writ Petition filed under Article 226 of the Constitutionof India to issue a writ of Certiorarified Mandamus to call for therecords of the order passed by the first respondent inLr.NO.16384/E2/06-5 dated 13.3.2008 and quash the same with furtherdirection to direct the respondents to approve the appointment ofthe petitioner in the post of Physical Education Instructor witheffect from 26.8.94 and in the post of Physical Director witheffect from 1.6.2004 with all consequential monetary and otherservice benefits and to pay the arrears of salary with interest. For petitioner : Mr.R.Muthukumarasamy,Sr.Counsel for Mr.E.Martin JeyakumarFor respondents: Mr.K.H.Ravikumar Government Advocate (Edun.) for R.1&R.2 Mr.Sam Edwin for R.3..ORDERBy consent of both parties, the main writ petition itself istaken up for final disposal.2. The writ petition is directed against the order of thefirst respondent-Government dated 13.3.2008, by which the firstrespondent, on the basis of the direction given by this Court dated https://hcservices.ecourts.gov.in/hcservices/

2.7.2007 in W.P.No.22215 of 2007, has rejected the claim of thepetitioner made in the representation dated 3.5.2008 not approvinghis appointment in the third respondent college as PhysicalEducation Instructor from 26.8.1994 and promotion in the post ofPhysical Director from 1.6.2004 .3. The facts leading to passing of the impugned order are thatthe third respondent is a recognised private minority aidedcollege, governed by the provisions of the Tamil Nadu RecognisedPrivate Colleges (Regulation) Act, except some provisions which arenot applicable to the minority institutions. The third respondentcollege has been sanctioned with two posts of physical educationteachers, viz., one Physical Education Instructor and anotherPhysical Education Director, by the Directorate of CollegiateEducation in the order dated 15.10.1977. The then incumbentholding the post of Physical Education Instructor, Mrs.SuseelaNesamani got promoted as Physical Director and in the resultantvacancy in the post of Physical Education Instructor, the thirdrespondent being the minority institution, appointed the petitioneras Physical Education Instructor on 26.8.1994 in conformity withthe qualifications prescribed for the said post. The thirdrespondent management sent proposals to the respondents 1 and 2 toapprove the appointment of the petitioner as Physical EducationInstructor, which have not been considered in spite of repeatedrequests. 3(a). In the meantime, due to retirement of Mrs.SuseelaNesamani as Physical Education Director, the petitioner waspromoted as Physical Education Director by the third respondentwith effect from 1.6.2004 and necessary proposals have also beensent by the third respondent management for approval of the saidpromotion. The first respondent asked for certain particulars fromthe second respondent in the communication dated 27.9.2006 and thesecond respondent, in turn, directed the Joint Director ofCollegiate Education, Tirunelveli Region to send remarks withregard to the approval of appointment of the petitioner. Since noorders were passed, the petitioner was constrained to fileW.P.No.22215 of 2007 and this Court, by order dated 2.7.2007directed the respondents to consider the representation of thepetitioner dated 3.5.2007 and pursuant to the said order, thepresent impugned order came to be passed. 3(b). The reason given in the impugned order is that the postof Physical Education Instructor in the third respondent collegeis a vanishing post and therefore, the appointment of thepetitioner to that post cannot be approved and consequentialpromotion of the petitioner to the post of Physical EducationDirector also came to be rejected. It is also stated that afterthe academic year 1999-2000, no vacant post was filled up and itwas only in 2006, 600 posts in aided colleges were filled up asper G.O.Ms.No.198, Higher Education Department, dated 5.7.2006 andsubsequently in the year 2007, 2000 vacant posts were permitted tobe filled up by allotting the same to the needy colleges as perG.O.Ms.No.211, Higher Education (E2) Department, dated 3.7.2007. https://hcservices.ecourts.gov.in/hcservices/ It is relevant to point out that after the appointment of thepetitioner, the second respondent has called for particulars inhis proceedings dated 23.4.1997, 27.3.1998, etc. which werefurnished by the third respondent college and the Joint Directorof Collegiate Education, Tirunelveli Region has also sent a reportto the second respondent on 21.11.2006 and without referring toanyone of the proceedings, the impugned order came to be passedstating that the post of Physical Education Instructor has become avanishing post. 4. The impugned order is attacked on various grounds includingthat inasmuch as the proceedings originally sanctioning the post ofPhysical Education Instructor as well as Physical EducationDirector to the third respondent college remain in force, it is notcorrect to say that the post of Physical Education Instructor is avanishing post, particularly when there is no mention in theoriginal proceedings of the year 1977 that the post is a vanishingpost. It is true that when Mrs.Suseela Nesamani was holding thepost of Physical Education Instructor till her promotion, necessarygrant in respect of Physical Education Instructor post had beenmade and while so, after 1994, in the absence of any proceedings bythe respondents treating the post as a vanishing post, either onthe basis of student strength or otherwise, it cannot be presumedthat the Physical Education Instructor post is a vanishing post.The petitioner was appointed in the existing vacancy as PhysicalEducation Instructor on 26.8.1994, who possessed necessaryqualifications and the third respondent being a minorityinstitution is entitled to make such appointment and there is noillegality or irregularity in the appointment of the petitioner.Subsequent to the retirement of the then Director of PhysicalEducation, on 1.6.2004 the petitioner was promoted as PhysicalEducation Director and the same was well within the powers of thethird respondent. Merely because the petitioner was paid Rs.1000/-per month as consolidated pay till the approval of the appointmentof petitioner and the petitioner was asked to sign in an attendanceregister separately maintained, it does not mean that thepetitioner was employed under the self-financing pattern andaccording to the petitioner, the impugned order is opposed to theprinciples of natural justice and therefore, liable to be setaside. 5. In the counter affidavit filed by the second respondent, itis stated that when the vacancy of Physical Education Instructorarose in the third respondent college due to the promotion ofMrs.Suseela Nesamani as Director of Physical Education, admittedly,the petitioner was appointed in the vacant post. It is the case ofthe second respondent that the said appointment was not approved bythe Director of Collegiate Education and therefore, the furtherpromotion of the petitioner as Physical Education Director on1.6.2004 cannot be approved since the initial appointment itself islacking approval from the competent authority. It is furtherreiterated in the counter affidavit of the second respondent thatthe post of Physical Education Instructor in the third respondentcollege is a vanishing post which ought not to have been filled upby the third respondent. https://hcservices.ecourts.gov.in/hcservices/

6. In the counter affidavit filed by the third respondentmanagement it is stated that as far as third respondent college isconcerned, the original grant of two posts of Physical EducationTeachers remain valid as on date and no post has been taken away bythe Government. It is stated that one D.D.W.Daniel was working asPhysical Education Director in the third respondent college whoretired from service on 30.4.1983 and in that vacancy Mrs.SuseelaNesamani, who was then working as Physical Education Instructorwas promoted as Physical Education Director and consequently, inthe vacancy of Physical Education Instructor that arose due to thepromotion of Mrs.Suseela Nesamani, prior to the appointment ofpetitioner, one Sathiya Doss was appointed as Physical EducationInstructor, however, pending approval of his appointment, he leftthe job. It was subsequent to the said incident, the writpetitioner was appointed by the third respondent and the proposalsfor approval were forwarded. In the meantime, when Mrs.SuseelaNesamani retired on superannuation as Physical Education Director,the petitioner was promoted as Physical Education Director witheffect from 1.6.2004. The conduct of the respondents 1 and 2 innot approving the appointment of petitioner either as PhysicalEducation Instructor or as Director is unlawful. Simply becausefor the past 14 years, the post of Physical Education Instructor inthe third respondent college was not approved by the respondents 1and 2, the said post will not become a vanishing post. It is alsostated by the third respondent that it was, as per the resolutionof the third respondent college, the petitioner was paid ahonorarium of Rs.1000/- per month till the approval of theappointment of the petitioner and the payment was made only for thepurpose of enabling him to continue in service and it is notcorrect to state that the petitioner was paid Rs.1000/- ashonorarium for the purpose of employing him in the self-financingcollege. The payment of Rs.1000/- is a payment towards subsistenceand it is only due to the conduct of the respondents 1 and 2 thematter got prolonged for more than 10 years and it is only thepetitioner's livelihood which is affected and to protect him,Rs.1000/- has been paid and it does not mean that it is under self-financing pattern. 7. The learned Government Advocate appearing for therespondents 1 and 2 has also produced relevant records. I havereferred to various averments made in the affidavits as well as inthe records and considered the issues involved in this case.8. First of all, it is not in dispute even in the counteraffidavit filed by the second respondent that in respect of thirdrespondent college which is an aided minority college, the Directorof Collegiate Education by proceedings in Rc. No.72391/S2/77 dated15.10.1977, while approving the staff strength in the thirdrespondent college along with scales of pay payable to them, hasclearly stated that in respect of Physical Education subject in thethird respondent college two posts have been sanctioned, viz.,1+1PTT. It is not even the case of the second respondent in thecounter affidavit that the sanctioned strength which was grantedoriginally to the Physical Education department of the third https://hcservices.ecourts.gov.in/hcservices/ respondent college viz., two posts, has been taken away in themanner known to law. Normally, it is the procedure that theDirector of Collegiate Education makes periodical inspectionregarding student strength of all aided colleges and in the eventof consistent reduction of student strength, the Director ofCollegiate Education, after issuing notice and calling fornecessary remarks, may take steps to take away the posts and directthe management to surrender such posts for the reasons so recorded.Such surrendering of posts may also be due to the reason of closureof a particular department. 9. On the factual situation of this case, it is no where thecase of respondents 1 and 2 that due to any of those situations,the original sanctioned strength of two posts in Physical EducationDepartment has been reduced. It is also seen that in respect ofappointment of Mrs.Suseela Nesamani, not only her appointment asPhysical Education Instructor but also her subsequent promotion asPhysical Education Director have been approved by the Director ofCollegiate Education and accordingly grant has been released. Itis also relevant to point out that even in the communication of theJoint Director of Collegiate Education to the third respondentcollege on 28.10.1994 in the form of a report on the accountssubmitted for the year 1991-92, there is no whisper about the so-called vanishing post. The original sanction of two posts asstated above in the year 1977 is very much available in the fileproduced by the second respondent. On the other hand, the originalfiles produced before this Court no where show that the secondrespondent has taken any steps in these years to take away both orany one of the posts of the Physical Education Department in thethird respondent college and no such notice has ever been given tothe third respondent at all. 10. It is also seen in the communication of the secondrespondent dated 23.4.1997 addressed to the third respondentinstitution that a question has been raised about the communicationof the third respondent that in the year 1996-97 1630 students werestudying in the third respondent college and particulars werecalled for. It is further seen in the proceedings of the Directorof Collegiate Education dated 27.3.1998 that particulars have beencalled for the purpose of approving the appointment of Mrs.SuseelaNesamani as Physical Education Instructor with a direction to themanagement to produce the original sanction order dated 15.10.1977.In the proceedings of the Director of Collegiate Education thesecond respondent has directed the management to forward thesanction order of the year 1977. It is seen in the files that thesaid order is very much available and it is not known as to whyrepeatedly this sort of communication has been sent withoutreference to the files at all. 11. The second respondent who now states that the posts in thePhysical Education Department of third respondent college arevanishing posts and instructions have been issued not to fill upany vacant post during the period from 2001 to 2006, has in factgranted approval in respect of Nesamony Memorial Christian College, https://hcservices.ecourts.gov.in/hcservices/ Marthandam permitting the said college to fill up the post ofPhysical Education Director. There are so many proceedings similarto the above one permitting various colleges to make appointment ofLibrarian as well as Physical Education Instructors, as found inthe typed-set of papers filed by the petitioner, for which there isno proper reply on the side of the second respondents. 12. It is seen in the proceedings of the Joint Director ofCollegiate Education, Tirunelveli Region addressed to the thirdrespondent in Na.Ka.No.15634/E1/06 dated 21.11.2006 that onverifying the salary register in respect of third respondentcollege for the period from 1980 to 1994, it was found that duringApril, 1980 one D.D.W.Daniel was working as Physical EducationDirector in the college in the scale of pay, Rs.700-40-1100-50-1300and Mrs.Suseela Nesamani was working as Physical EducationInstructor in the scale of pay, Rs.350-10-420-15-600 and fromApril, 1980 till 30.4.1983 both of them were receiving salary asPhysical Education Teachers. After the said D.D.W.Daniel retiredon 30.4.1983, Mrs.Suseela Nesamani was promoted as PhysicalEducation Director from 1.6.1983 and her promotion was approved bythe Department on 7.5.1984. 13. It is stated that from 1.6.1983 only one teacher has beenworking in the third respondent college in the Department ofPhysical Education and Mrs.Suseela Nesamani, though retired on31.3.2004, worked till 31.5.2004 as Director of Physical Educationand the post of Director of Physical Education has become vacantfrom 1.6.2004. Very strangely, in the said letter, the JointDirector has chosen to state that after the retirement ofD.D.W.Daniel on 30.4.1983, in the third respondent college only onePhysical Education Teacher has been allowed to be appointed andafter 1.6.2004, even the said post of Director of PhysicalEducation remains vacant. In the absence of taking away orsurrendering of both the posts of the Department of PhysicalEducation in the third respondent college, the second respondenthas a legal duty to consider the proposal for approval of theappointment of petitioner in the vacancy created either onpromotion of Mrs.Suseela Nesamani or after her retirement asDirector of Physical Education and it is not possible to accept thecontention raised by the second respondent that the post ofPhysical Education Instructor in the third respondent college hasbecome a vanishing post. 14. The respondents 1 and 2 have failed to explain under whatcircumstances the post of Physical Education Instructor in thethird respondent college has become a vanishing post. Merelybecause the second respondent has failed to take any action on theproposal for approval of the appointment of petitioner in the postof Physical Education Instructor for many years during which periodalso it was not even informed by the second respondent that it is avanishing post and therefore, the appointment cannot be approved, Iam of the considered view that the third respondent being aminority institution is not only entitled to appoint the petitioneras Physical Education Instructor in the vacancy caused in the year https://hcservices.ecourts.gov.in/hcservices/ 1994, but also to subsequently promote him as Physical EducationDirector in June, 2004 after the then incumbent Mrs.SuseelaNesamani retired. The reason given by the second respondent thatthe original appointment of the petitioner as Physical EducationInstructor has not been approved and therefore, his appointment asPhysical Education Director can not also be approved has nomeaning. The fault is entirely on the part of the second respondentin not even going through the records in proper manner, especiallywhen the records produced categorically show that the originalsanctioned strength of Physical Education Department in the thirdrespondent college as sanctioned in the year 1977 has not beentaken away or changed. 15. In a similar circumstance, Elipe Dharma Rao,J. inW.P.No.28396 of 2004 [between Mrs.Natesha Sebastian and TheGovernment of Tamil Nadu rep. by its Secretary, Higher EducationDepartment, Fort St. George, Chennai 600 009 and 2 others], byorder dated 29.3.2006, has held that in the absence of order ofthe Director of Collegiate Education pointing out any reduction inthe strength of students or financial constraints, the appointmentmade in respect of existing posts by the private management,especially minority institutions is not invalid. The relevantportion of the order is as follows:"11. Further, as regards the other limbs of the rulerelating to the norms of the workload and financialconsiderations also, where there is no reduction of workloadin the third respondent college and in the absence of anyorder passed by the second respondent pointing out any suchreduction or financial constraints, it can be held that theappointment of the petitioner is done in accordance withthe Rule and therefore, no prior permission is required toappoint the petitioner."16. In view of the above said finding, there is no difficultyto come to the conclusion that the impugned order is bereft of anyreason, much less acceptable reason, since the case of the secondrespondent that the posts have become vanishing posts has not beenproperly explained and has not been properly enforced on thefactual situation of this case. In view of the same, the impugnedorder of the first respondent is set aside with direction to therespondents 1 and 2 to consider the proposals of the thirdrespondent college for the approval of appointment of thepetitioner as Physical Education Instructor and subsequentpromotion of the petitioner as Physical Education Director takinginto consideration the qualifications which the petitionerpossessed at the relevant point of time and pass appropriate orderson merits and in accordance with law and grant approval in theevent of the petitioner possessing required qualifications as perthe Tamil Nadu Private Colleges Regulations Act,1976 and if thereare no other legal impediments, such order shall be passed by the https://hcservices.ecourts.gov.in/hcservices/ respondent Department expeditiously, in any event, within a periodof twelve weeks from the date of receipt of copy of this order.The writ petition is allowed. No costs. Connected miscellaneouspetition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.KhTo1.The Secretary to Government State of Tamil Nadu Higher Education Department Secretariat Chennai 9.2.The Director of Collegiate Education College Road, Chennai 6.+ 1 CC To Mr.E.Martin Jeyakumar, Advocate SR NO.57079+ 1 CC to the Government Pleader SR NO.56889 Order in W.P.No.16778 of 2008GR {CO}TP/20.10.08