The Secretary v. The State Of Taminadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2017
CORAM:
THE HON'BLE MR. JUSTICE S.M.SUBRAMANIAM WP.Nos.6679 & 6680 of 2016 and WMP.Nos.5911, 5912, 5914, 5915 of 2016 The Secretary Nirmala College for Women (Autonomous) Red Fields, Coimbatore, Coimbatore District-641 018.
.. Petitioner in both WP.s vs 1.The State of Tamil Nadu rep.by its Secretary Department of Higher Education, Fort St.George, Chennai-600 009.
2.The Director of Collegiate Education, College Road, Chennai-600 006.
3.The Joint Director of Collegiate Education, Coimbatore Region, Coimbatore District-641 018.
.. Respondents in both WP.s Prayer in WP.No.6679 of 2016: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of Certiorarified Mandamus calling for the records relating to the impugned Government Order issued by the 1st respondent in GO.Ms.219, Higher Education (D1) Department dated 24.10.2013 and the consequential proceedings issued by the 3rd respondent Joint Director in O.Mu.No.1888/U1-2014 dated 14.05.2014, quash the same, and further direct the 3rd respondent Joint Director to approve forthwith the appointment of 12 non-teaching staffs in the petitioner's college and disburse the grant-in-aid towards their salary and allowances viz., 17.03.2014. Prayer in WP.No.6680 of 2016: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of Certiorarified Mandamus calling for the records relating to the impugned Government Order issued by the 1st respondent in GO.Ms.219, Higher Education (D1) Department dated 24.10.2013 and the consequential proceedings issued by the 32rd respondent
Joint Director in Thi.Mu.No.04829/21/2014 dated 15.07.2014 (as signed), quash the same, and further direct the 3rd respondent Joint Director to approve forthwith the appointment of 4 nonteaching staff in the petitioner's college and disburse the grant-in-aid towards their salary and allowances viz., 01.07.2014.
For Petitioner in both WPs.
: Mr.Isaac Mohanlal, Senior counsel for Mr.P.Godson Swaminath For Respondents in both WPs. : Mr.R.Vijayakumar, AGP COMMON ORDER Mr.Isaac Mohanlal, learned senior counsel appearing for the petitioners informed this Court that in respect of non-teaching staff of Aided Institution, this Court has taken the decision in respect of grant of approval for appointment. This Court has also considered a case of batch of writ petitions in WP.Nos.13413 of 2016 and etc., batch and passed orders on 02.08.2017 .
2. The issue involved in these writ petitions for filling up of vacancies against the sanctioned strength of Nonteaching staff by the Minority Institutions is no longer res integra, for, a Division Bench of this Court, even three years ago, in P.Ravichandran v. State of Tamil Nadu and others reported in [(2013) 7 MLJ 641], has settled that issue and, following the said judgment, I have also, in a batch of writ petitions, i.e., in W.P.(MD)Nos.14115 to 14119 of 2016 etc. (batch cases), (decided on 19.08.2016), ordered the official respondents therein to accord approval for filling up of the vacancies against sanctioned posts of non-teaching Staff by the Private Aided Schools. For better appreciation, relevant portions of the order passed by this Court are extracted below:- "2.
With regard to the legal position in respect of minority institutions, whether prior permission should be obtained before filling up any vacancy in a sanctioned Post, the Honourable Division Bench of this Court even three years ago, in P.Ravichandran v. State of Tamil Nadu and others reported in (2013) 7 MLJ 641, has settled the issue. It is relevant to extract paragraph Nos.
17. A Division Bench of Madurai Bench of this Court in W.A(MD)No.462 of 2006, judgment, dated 01.12.2006, considered the scope of Rule 11(1) of the Tamil Nadu Private
Colleges(Regulation) Rules, 1976 relying upon the earlier order passed on 13.08.2006, and held that for filling up an existing post in a Private Aided College, no prior approval is necessary as any such appointment shall be subsequently approved by the Department, and at that point of time the Department would have an opportunity to consider the availability of such post and rejection of approval on the ground that no prior approval was obtained before appointment, was set aside. Same is the view taken in the following orders of this Court .
(i) W.P.No.30618 of 2005, order dated 21.09.2005;
(ii) W.P.No.28396 of 2004, order dated 29.03.2006;
(iii) W.A.Nos.92 & 93 of 2008, judgment dated 06.01.2010;
(iv)W.P(MD)No.174 of 2009, order dated 27.04.2010;
(v) W.A.Nos.140, 811/2006 & 805/2007, judgment dt. 21.10.2010;
(vi)W.A.No.2858 of 2010, judgment dated 21.03.2011;
(vii) W.A(MD)Nos.1088 of 2011, judgment dated 19.10.2011;
(viii) W.A.Nos.2345 of 2011, judgment dated 05.03.2012;
(ix) Dr.S.Sukumaran v. State of Tamil Nadu, (2012) 5 MLJ 670 rendered by one of us (NPVJ); and (x) W.A.No.474 of 2013, judgment dated 03.04.2013.
Thus, the issue regarding seeking prior permission for filling up the vacant post in aided College within the academic year was already settled in series of decisions and all the above said orders are implemented by the respondents 1 and 2.
In such circumstances, it is not open to the respondents to again and again contend that only after getting prior permission from the Director of Collegiate Education, vacant sanctioned posts can be filled up by the management.
.....
20. In the light of the above findings as well as the decisions, we conclude this judgment in the following manner:
(1) There is no requirement under the
Tamil Nadu Private Colleges (Regulation) Act, 1976 and Tamil Nadu Private Colleges (Regulation) Rules, 1976, to seek prior permission to fill up any vacant post in an aided college, which has already been sanctioned for the academic year by the Director of Collegiate Education under Rule 11(1) of the Rules.
(2) If the appointment made by the College Committee in the sanctioned vacant post is in violation of any of the statutory provision, it is open to the Regional Joint Director of Collegiate Education to deny grant-in-aid to the said person appointed in the vacant post.
(3) The teaching staff appointed must be fully qualified, whose qualification is approved by the University to which the college is affiliated. Insofar as the nonteaching staff are concerned, the candidate must possess the qualification prescribed by the Government.
(4) The College Committee while filling up the vacant post, should follow the procedures stated in Rule 11(1A) to 11(4) (ii).
(5) If there is no rival candidate for any post, the appointment is bound to be approved for the purpose of payment of pay and allowances, by the Regional Joint Director of Collegiate Education.
The writ appeal is disposed of with the above directions. No Costs.
3.A cursory reading of the aforementioned Honourable Division Bench judgment in (2013) 7 MLJ 641, clearly shows that the issue raised in the present Writ Petitions, is no longer res integra, because the Honourable Division Bench of this court in the aforementioned judgment has also made it clear that there is no requirement under the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Tamil Nadu Private Colleges(Regulation) Rules, 1976, to seek prior permission to fill up any vacant post in an aided college, which has already been sanctioned for the academic year by the Director of Collegiate Education under Rule 11(1) of the Rules.
4. Therefore, the issues raised in the present Writ Petitions having been settled by this Court, I have no hesitation to accept the prayer made by the
petitioners.
5. In the result, (i) All the Writ Petitions are allowed.
(ii) The impugned orders are set aside.
(iii) The respective respondents are directed to approve the appointments of non-teaching staff in the Private Aided Schools in these cases and to sanction grant, within a period of four weeks from the date of receipt of a copy of this order."
3. Thus, the issue is well settled now that any school, either minority/private/aided or unaided, is entitled to fill up the vacancy arising on account of promotion, retirement, removal, dismissal etc., against a sanctioned post already approved by the school authorities, without even obtaining prior permission from the competent authorities. In the cases on hand, admittedly, the non-teaching employees had been appointed against the vacancies in relation to the sanctioned posts as Non-teaching staff in various cadres and therefore, by following the above cited case laws, this Court inclined to direct the respective respondents to approve the appointments of the Nonteaching staff by the Private Aided Colleges and to sanction the grant within a period of twelve weeks from the date of receipt of a copy of this order.
4. In fine, for the reasons stated above, the writ petitions are allowed by quashing the impugned orders. No Costs. Consequently, connected miscellaneous petitions are closed.
Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar sk To 1.The Secretary Department of Higher Education, Fort St.George, Chennai-600 009.
2.The Director of Collegiate Education, College Road, Chennai-600 006.
3.The Joint Director of Collegiate Education, Coimbatore Region, Coimbatore District-641 018.
+2 ccs to M/s.M.P.Godson Swaminathan Advocate sr 84112 84115 WP.Nos.6679 & 6680 of 2016 aa11/12/2017