T.Bhaskar v. The State of Tamil Nadu

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 30-04-2009CORAMTHE HONOURABLE MR.JUSTICE P.K.MISRAAND THE HONOURABLE MR.JUSTICE M.JAICHANDRENW.A.(MD) Nos.785 to 787 of 2008T.Bhaskar.. Appellant in all the appealsVersus1.The State of Tamil Nadu Rep. by its Secretary to Government, Higher Education 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, Tirunelveli Range, Tirunelveli-627 003.4.The Secretary, St.Xavier's College, Palayamkottai, Tirunelveli-627 002. .. Respondents in all the appealsFor Appellants : Mr.A.ThirumurthyFor Respondents: Mr.Gandhi Rajan (R1 to R3) Mr.Isaac Mohanlal (R4)PRAYER in W.A.No.785 of 2008: Appeal filed to set aside the order,dated 18.11.2008, made in W.P.(MD)No.6310 of 2008, on the file of thisHon'ble Court.PRAYER in W.A.No.786 of 2008: Appeal filed to set aside the order,dated 18.11.2008, made in W.P.(MD)No.9317 of 2007, on the file of thisHon'ble Court.PRAYER in W.A.No.787 of 2008: Appeal filed to set aside the order,dated 18.11.2008, made in W.P.(MD)No.5237 of 2007, on the file of thisHon'ble Court.COMMON JUDGMENTM.JAICHANDREN,J.Heard Mr.A.Thirumurthy, the learned counsel appearing for theappellant and Mr.Gandhi Rajan, the learned Government Advocate forrespondents 1 to 3 and Mr.Isaac Mohanlal, the learned counselappearing for the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/

22. Inasmuch as the issue involved in all the writ appeals are oneand the same, a common judgment is being passed. 3. The writ appeals have been filed against the order, dated18.11.2008, made in W.P.(MD).No.6310 of 2008, W.P.(MD).No.9317 of2007, W.P.(MD).No.5237 of 2007. 4. The petitioner in Writ Petition No.6310 of 2008, who is theappellant in the present writ appeal, had prayed for the issuance of awrit of mandamus to direct the fourth respondent therein to submit theproposal of appointment of 13 lecturers, including the petitioner, forthe approval of the third respondent, in compliance with the order,dated 18.6.2006, passed in W.P.(MD) No.2140 of 2005 and to furtherdirect the fourth respondent to regularise the petitioner's servicesfrom 17.6.2002, which is the date of his initial appointment, with allservice and monetary benefits.5. In the said order, it has been observed that the petitioner-appellant had claimed that, on 17.6.2002, he had been appointed as alecturer in Chemistry by the first respondent college, as against aretirement vacancy. However, his appointment had not been approved bythe Directorate of Collegiate Education. While so, the fourthrespondent had filed a writ petition in W.P.No.2140 of 2005, prayingfor the disbursement of the salaries for 13 lecturers, including thepetitioner. This Court by an order, dated 18.10.2006, had issued adirection to the second respondent to consider the work load availablein each department, as well as the sanction of posts through the stafffixation order, dated 28.10.1999 and to pass appropriate orders, onthe basis of the proposals submitted by the petitioner, dated5.2.2004, before the third respondent, within a period of six weeksfrom the date of receipt of the said order. Since the fourthrespondent had not submitted any proposal in respect of theappointment of 13 lecturers, including the petitioner-appellant, forthe grant of approval, the petitioner had filed W.P.(MD)No.6310 of2008, praying for the reliefs as stated therein.6. In the counter affidavit filed by the third respondent in thewrit petition it had been stated that as per the order of this Court,dated 18.10.2006, made in W.P.No.2140 of 2005, the workload for theyear 2003-2004, submitted by the management of St.Xavier's College,Palayamkottai, on 5.2.2004, had been reviewed and the staff strengthhad been fixed as per the staff fixation order, dated 28.10.1999, andspecific orders had been issued, vide proceedings No.16333/F4/2006,dated 9.2.2007, of the Directorate of Collegiate Education, Chennai.Recording the said statement, this Court had passed the order, dated18.11.2008, in W.P.(MD)No.6310 of 2008, stating that in view of theproceedings, dated 9.2.2007, issued by the Directorate of CollegiateEducation, Chennai, the petitioner cannot have any further grievance.It had been further held that in respect of the regularisation of thepetitioner-appellant's services he could work out his remedies in the https://hcservices.ecourts.gov.in/hcservices/ 3other writ petitions filed by the petitioner before this Court inW.P.Nos.9317 and 5237 of 2007.7. In W.P.(MD)No.9317 of 2007, the petitioner had prayed thatthis Court may be pleased to issue a writ of certiorarified Mandamus,to call for the records of the fourth respondent management, relatingto his proceedings, dated 1.9.2007, and to quash the same and todirect the fourth respondent to allow the petitioner to continue inservice.8. By an order, dated 18.11.2008, made in W.P.(MD)No.9317 of2007, this Court had observed that the petitioner had been appointedas a lecturer in the Department of Chemistry, on a consolidated pay,on a temporary basis subject to the terms and conditions of service inthe management category. Such appointment orders had been issued tothe petitioner, on 16.6.2003, 16.6.2004, 16.6.2005 and 14.6.2006 forthe various periods. Since the petitioner had undertaken to abide bythe regulations and the conditions, while accepting the appointmentorders issued on a temporary basis, he cannot claim permanency in asanctioned post. Relevant rules were available for the appointment ofpermanent lecturers. Accordingly, the appointments on a permanentbasis could be made, either by means of promotion or by directrecruitment by calling for applications from qualified persons bypaper publication or by calling for a list of candidates from theemployment exchange. Since the petitioner had not been appointed inaccordance with the relevant rules, applicable to the appointment of alecturer, on a permanent basis, he cannot claim for regularisation ofhis service. Further, the prayer in the writ petition was not forregularisation of the service of the petitioner and it was only thetermination notice that had been challenged. It had been furtherobserved that the records placed before the Court would reveal thatsubsequent to the staff fixation order made by the Government, aproper paper publication had been made calling for applications fromqualified persons. Thereafter, the interviews were held and theselections were made, which were approved by the Directorate ofCollegiate Education. Since there was no vacancy as against asanctioned post the petitioner cannot claim that he is entitled towork in the college in a sanctioned post. Since the petitioner'sappointment is purely on a temporary basis the college is at libertyto terminate him by issuing a notice, as per the terms and conditionsof the appointment order. Hence, this Court had held that there was noreason to interfere with the termination order issued against thepetitioner. 9. In W.P.No.5237 of 2007, the petitioner had prayed for issuanceof a writ of mandamus to direct the officials of the respondents 1 and3 to ratify the petitioner's appointment as a lecturer in Chemistry inthe fourth respondent college by regularising the petitioner's servicefrom his initial appointment, from 17.6.2002, with all attendantservice and monetary benefits. https://hcservices.ecourts.gov.in/hcservices/

410. This Court by an order, dated 18.11.2008, had recordedthe submission of the learned counsel appearing on behalf of therespondents 1 to 3 that there was no proposal submitted by the fourthrespondent college seeking for the approval of the petitioner. It washeld that there was no scope for issuing a direction to theDirectorate of Collegiate Education, either to ratify the appointmentof the petitioner or to regularise his services, when it is the standof the fourth respondent college that the petitioner had not beenappointed on a permanent basis and when the fourth respondent collegehas not submitted any proposal to the Directorate of CollegiateEducation. Since the petitioner had not been appointed by followingthe procedures contemplated under Rule-11 of The Tamil Nadu PrivateColleges (Regulation) Rules, 1976, the question of ratifying thepetitioner's appointment does not arise. 11. In the additional affidavit filed by the petitioner ithas been stated that the petitioner had been initially appointed, on17.6.2002, in the fourth respondent college, in the retirementvacancy, in a sanctioned post. Even though the fourth respondent hadfiled a writ petition in W.P.(MD).No.2140 of 2005, to approve theproposals submitted by the fourth respondent, the matter was notpursued by the fourth respondent, as no proposal had been sent. It hasbeen further stated that at present there are three vacancies in theDepartment of Chemistry in the fourth respondent college which are yetto be approved by the third respondent. It is open to the fourthrespondent to send a proposal for the approval of the petitioner'sappointment, even at this stage. The meagre amounts paid as salary tothe petitioner by the fourth respondent college could be adjusted fromthe amounts that would be sanctioned by the Government once theapproval is granted. Therefore, no prejudice would be caused to thefourth respondent college by forwarding the proposal to the thirdrespondent for the approval of the appointment of the petitioner as alecturer in Chemistry in the fourth respondent college.12. In the written submissions of the fourth respondent ithas been stated that the relationship of master and servant betweenthe petitioner and the fourth respondent is based on a contract ofpersonal service and it is not specifically enforceable in view ofSection 14 of the Specific Relief Act, 1953. If the termination of thecontract of employment is found to be illegal the remedy for theemployee would be only by way of certain damages and not by specificperformance. The petitioner in the writ petitions, who is theappellant in the present appeals, had been appointed, temporarily, asa lecturer in Chemistry, with effect from 17.6.2002, subject to theterms and conditions of service. As such he had served till 16.4.2003.Subsequently, he was permitted to work in the college and he iscontinuing as such in view of the interim orders granted by thisCourt. 13. It has been further stated that since the appointment of https://hcservices.ecourts.gov.in/hcservices/ 5the appellant is based on a contract, it is not in accordance with thestatutory provisions applicable to such appointments. The appointmentwas made under the management category, on a temporary basis. Afterthree posts of lecturer in Chemistry had been sanctioned in the year,2007, the fourth respondent college had followed the procedurecontemplated under the Tamil Nadu Private Colleges (Regulation) Act,1976 and the rules framed thereunder, to fill up the vacancies. Themanagement of the fourth respondent college had issued anadvertisement in the newspaper `The Hindu', on 23.8.2007, invitingapplications from eligible candidates for the said posts. Twenty-sixcandidates had applied pursuant to the said advertisement. Further,the appellant had not submitted his application in spite of thesuggestions made by the fourth respondent. The selection committeeselected Mr.Stanley, Ms.S.Mary Jelastin Kala and Ms.C.MariaMagadalene, on 14.9.2006. All the three candidates had joined inservice, on 22.10.2007 and they are continuing to work in the fourthrespondent college, till date. As the petitioner had not opted toapply for the regular appointment the selection committee was not ableto consider his candidature. Since all the three regular vacancies hadbeen filled up there is no vacancy existing in the fourth respondentcollege. The appellant had not challenged the appointment of the othercandidates as being irregular or illegal. It has been further statedthat as per the work load in the fourth respondent college during thecurrent academic year 2008-2009, the college is entitled to have onemore post of lecturer in Chemistry.14. From the materials on record, it is apparent that thefourth respondent College itself had earlier filed W.P.(MD)No.2140 of2005 praying for a direction to the present respondents 1 to 3 for thedisbursement of the salary of 13 lecturers, including the presentappellant. In such writ petition, it was the categorical stand of thepresent fourth respondent that the appellant had been initiallyappointed against the vacancy which was existent at that time. It isof course true that such initial appointment was only for a temporaryperiod, but it cannot be said that there was no justification forfilling up the temporary vacancy, which had occurred on account ofretirement of a person appointed against the sanctioned post. It istrue that the College had not followed the procedure for filling upthe permanent post, but, at any rate, it cannot be said that forfilling up the post on temporary basis any irregularity has beencommitted. It is also not in dispute that thereafter the appellantcontinued for all these years, though with temporary breaks inservice, obviously on account of intervening summer vacations duringthose periods.15. When the fourth respondent intended to fill up theapproved vacancy in a regular manner, possibly, it would have beenmore prudent on the part of the present appellant to appear at theinterview to be selected on regular basis. However, it can be easilyconcluded that the appellant must have thought that since he had https://hcservices.ecourts.gov.in/hcservices/ 6continued in service without interruption for a long period, eventhough on a temporary basis with artificial breaks, he need not appearfor the regular selection. However, on that score it would be unjustto deprive the petitioner the benefit of employment for all times tocome.16. Under these peculiar circumstances, we feel interest ofjustice would be served by directing the fourth respondent to allowthe appellant to continue on temporary basis till the selection forfilling up the vacancy on regular basis is made. We further directthe fourth respondent to propose the name of the appellant for theapproval of the third respondent to continue him as a lecturer inChemistry, in view of the additional workload in the fourth respondentcollege, for the academic year 2008-2009. Once such proposal has beensent it is for the third respondent to consider the granting ofapproval, based on the proposal made by the fourth respondent college,in accordance with the procedures established by law. This exercisehas to be undertaken and completed by the fourth respondent college,as well as the third respondent, as expeditiously as possible, withina period not later than three months from the date of receipt of acopy of this order. It is made clear that the appellant would beallowed to apply for such regular selection and if the appellant hasbecome over-aged, there shall be relaxation of such age. It goeswithout saying that, while considering, the appropriate authoritywould obviously keep in view the rich experience gained by theappellant having successfully completed about seven years of serviceas a Lecturer, though with artificial breaks. The order oftermination issued against the appellant is accordingly quashed andall the writ appeals are disposed of subject to the above directionsand observations. Connected M.P.No.1 of 2008 in W.A.No.786/2008 isclosed.Sd/- Assistant Registrar (R) /True Copy/ Sub Assistant Registrar To1.The Secretary to the Government, Higher Education 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, Tirunelveli Range, Tirunelveli-627 003.+1 LR CopyKS 29.05.2009 (5C/6P)W.P.Nos.785 to 787 of 200830-04-2009csh