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Judgment
S. Rajeswaran, J.—Writ Petition No.4960/1997 has been filed under Article 226 of the Constitution of India seeking to issue a writ of
certiorari, calling for the records pertaining to proceedings No.N.K.No.01812/91/97-1 dated 28.2.1997 on the file of the second respondent,
quash the same.
W.P.No.14450/1997 has been filed under Article 226 of the Constitution of India seeking to issue a writ of certiorarified mandamus calling for
the records pertaining to the proceedings of the 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 the petitioner''s appointment from 2.7.1990 with all consequential service and monetary benefits.
As the issue involved in both the writ petitions are related to each other, a common order is passed to dispose of both the writ petitions.
W.P.No.4960/1997: The petitioner was appointed as lecturer in Commerce in the 4th respondent college on 1.11.1991 in a permanent
vacancy. The appointment was ratified by the 2nd respondent by proceedings dated 4.11.1994 with effect from the date of appointment. While
so, the impugned proceedings are passed by the 2nd respondent on 28.2.1997 which was informed through the 4th respondent college, stating
that the approval granted to the petitioner from the date of his appointment was cancelled and the approval is now granted from 4.11.94 only. The
impugned proceedings further sought to recover the salary for the period from 1.11.1991 to 3.11.94 in 150 monthly instalments.
W.P.No.14450/1997: The 5th respondent in W.P.No.4960/1997 is the writ petitioner in this Writ Petition. He was appointed as lecturer in
Chemistry in 4th respondent college (the very same college where the writ petitioner in W.P.No.4960/97 is working) on 2.7.1990. But his
appointment was approved by the 3rd respondent/Joint Director from the academic year 1993 to 1994 only, not from the date of his appointment.
Therefore he sent a representation to the 2nd respondent-director citing the example of another lecturer in the Commerce Department in the very
same college (writ petitioner in W.P.No.4960/97), whose services have been regularised with monetary benefit from the date of his appointment.
But the 2nd respondent by the impugned proceedings has not only turned down his request, but cancelled the orders passed earlier to the said
lecturer in Commerce department regularising the services from the date of his appointment. This order dated 28.2.97 is the impugned order in
both the writ petitions.
Heard the learned Counsel for the respective parties in both the writ petitions and the learned Government Advocate(Education). I have also
perused the documents and the judgments referred to by them in support of their submissions.
It is not in dispute that the impugned proceedings dated 28.2.1997 were passed at the instance of the writ Petitioner in W.P.No.14450/1997,
who is the 5th respondent in W.P.No.4960/1997.
The grievance of the writ petitioner in W.P.No.14450/1997 is that even though he was appointed in a sanctioned post by the 4th respondent
college on 2.7.1990, his services were not regularised from the date of his appointment but only from 25.6.93 i.e., from the academic year 1993 to
1994 only.
It is also not in dispute that the writ petitioner in W.P.No.4960/1997 was appointed on 1.11.1991 but his services were regularised by the
department from 1.11.91 onwards. Therefore citing the example of the writ petitioner in W.P.No.4960/97, the writ petitioner in
W.P.No.14450/97 submitted a representation to the 2nd respondent-director requesting him to regularise his services from the date of his
appointment as has been done in the other case.
By the impugned proceedings, the 2nd respondent-director has not only rejected his request but also cancelled the previous order of approval
regularising the services of the writ petitioner in W.P.No.4960/1997 from the date of his appointment and ordering recovery from his salary in 150
instalments.
First let me consider the grievance of the writ petitioner in W.P.No.4960/1997. A mere perusal of the impugned order would show very
clearly that the same has been passed without even affording an opportunity to the writ petitioner and therefore the same is not only against the
basic principles of natural justice, but also the order has been passed in total violation of Section 39(2) of the Tamil Private Colleges (Regulation)
Act, 1976 which governs the 4th respondent college as admitted by the Government in their counter affidavit. u/s 39(2) of the Act, only after giving
an opportunity to the parties, any appeal preferred under any provisions of the Act should be disposed of. Further ordering recovery of the salary
already paid to the writ petitioner that too, in 150 instalments would definitely result in civil consequences and it is trite law that any order passed
resulting in civil consequences, should be passed only after affording an opportunity to the persons concerned. That apart, the writ petitioner
cannot be blamed even assuming that some benefit was given to him wrongly as he has not made any misrepresentation either to the college or to
the Government. In such circumstances, the writ petitioner who is not even a party to the appeal should not be burdened with a huge monetary loss
without even affording an opportunity to him. Hence I have no hesitation in quashing the impugned proceedings insofar as cancelling the earlier
order of regularisation dated 4.11.1994 regularising his services from the date of his appointment and ordering recovery from his salary in 150
instalments.
It is also useful to refer to the judgment cited by th learned Counsel for the writ petitioner in 2006 (1) MLJ 695 (Kanthimathi, S.A. v. Director
of School Education, Madras) wherein a learned Single Judge of this Court held that when order of recovery has been passed without giving any
notice or opportunity, the same is liable to be set aside, especially when there is no misrepresentation by the person against whom the order was
passed. The learned Judge following the decision of the Supreme Court reported in Sahib Ram Vs. State of Haryana and Others, held as follows:
A perusal of the impugned order of recovery nowhere discloses that the petitioner has misrepresented or suppressed for the receipt of excess
scale of pay. Further, no notice or opportunity was given to the petitioner before the impugned order of recovery was passed and as stated, the
petitioner also retired from service.
In the said judgment of the Supreme court, it is clearly stated that since the salary is paid not on account of any misrepresentation made by the
appellant and the benefit of higher scale of pay was made by the wrong construction made by the Principal for which the appellant cannot be held
to be at fault. The facts in the said judgment applies to the facts in this case also and therefore the impugned order of recovery is quashed. The writ
petition is allowed. No costs.
In the light of the above discussion on fact and law, the writ petition is allowed quashing the impugned order dated 28.2.1997, insofar as the
cancelling the earlier order passed by the Director dated 4.11.1994 regularising the petitioner''s services from 1.11.1991 and ordering recovery of
the salary received by the petitioner from 1.11.1991 to 3.11.94 in 150 instalments. No costs.
Insofar as the W.P.No.14450/1997 is concerned, the grievance of the writ petitioner is that when he was appointed in a sanctioned post his
services should have been regularised from the date of his appointment and not from 25.6.1993 as regularised by the Joint Director.
The contention of the department in this regard in the counter affidavit is that the management ought to have obtained the prior approval of the
Director before filling up the vacant post as stated in Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976. It is further stated
that only by proceedings dated 8.12.1993, the Director fixed the strength of the Chemistry Department in the college as 14 posts for the academic
year 1993-94 and therefore the appointment of the writ petitioner was admitted for grants with effect from the date of the commencement of the
academic year 1993-94.
The learned Counsel for the petitioner relied on an unreported decision of this Court dated 29.3.2006 made in W.P.No.28396/2004 wherein
a learned Single Judge of this Court held as follows:
At the outset it has to be stated that the petitioner was appointed by the third respondent to the post of Lecturer as against the vacancy that
arose due to the retirement of one Dr.A.M.Vasudevan Pillai and as per rules an approval was sought for from the second respondent, which was
rejected stating that no prior approval was obtained.
So, the question that now arises for consideration is as to whether the appointment of the petitioner is well within the sanctioned post. In this
context, it would be worthwhile to extract Rule 11(1) of the Rules:
The number of teachers employed in a college shall not exceed the number of posts fixed by the Director from time to time, with reference to the
academic requirements and norms of work load prescribed by the respective Universities and overall financial considerations.
Thus it is evident from the above, any such appointment of teachers should not exceed the number of posts fixed by the Director. In the
present case, the third respondent college has been sanctioned with two posts of Malayalam Lecturers and since a vacancy has arisen due to the
retirement of one Dr.A.M.Vasudevan Pillai, the petitioner herein was appointed through direct recruitment process in the said vacancy.
Further as regards the other limbs of the rule relating to the norms of the workload and financial consideration also, when there is no reduction
of workload in the third respondent college and in the absence of any order passed by the second respondent pointing out any such reduction or
financial constraints, it can be held that the appointment of the petitioner is done in accordance with the Rule and therefore, no prior permission is
required to appoint the petitioner.
Therefore, it is clear that the order passed by 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 second respondent is directed to pass the order of approval to the petitioner from the date of his initial
appointment within a period of six weeks from the date of receipt of a copy of this order. Consequently, connected WPMP is closed.
From the above it is very clear that in the absence of any order passed by the Director pointing out any such reduction, it can be held that the
appointment of a person in a sanctioned post in accordance with rules, no prior permission is required.
In this case also it is not in dispute that the writ petitioner was appointed in the place of one Dr.A.Chellamani who was 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 appointment was only in an existing and sanctioned permanent vacancy and therefore his services ought to have been regularised
from the date of the appointment only. Hence I am inclined to allow the writ petition as prayed for.
In the result, the impugned order dated 28.2.1997 is quashed insofar as rejecting the writ petitioner''s representation for regularising his
services from 2.7.1990 and the 2nd respondent is directed to approve the petitioner''s appointment from 2.7.1990 with all consequential service
benefits and mandatory benefits. The monetary benefits are directed to be paid to the writ petitioner by the 2nd respondent within three months
from the date of receipt of copy of this order. The writ petition is allowed accordingly. No costs.