Kamaraj College vs The Director of College Education, The Deputy Director of Collegiate Education, Tirunelveli Region and Dr. M. Venkatesan

S. Manikumar, J.—By order dated 09.06.2001 of the Director of Collegiate Education, Chennai, the 1st respondent, the request of the 3rd

respondent to pay salary for the period between 09.04.1990 to 25.06.1991 has been rejected on the ground that the appointment of the 3rd

respondent was contrary to the procedure and that there was also a violation of communal roster, by the Management. In the said order, the writ

petitioner Management has been directed to pay the salary to the 3rd respondent. Aggrieved by the same, the petitioner college has filed the

present writ petition to quash the above said order and consequently prayed for a direction to the respondents 1 and 2 to pay salary to the 3rd

respondent for the above said period.

Facts of the case are as follows:

According to the petitioner college, the 3rd respondent was appointed temporarily as Lecturer in the Department of Mathematics by order dated

06.04.1990, in the resignation vacancy of one Mr. A. Karthikeyan, Selection Grade Lecturer. Even in the appointment order, it was made clear

that his appointment would be subject to the approval of the Registrar, Madurai Kamaraj University and the Deputy Director of Collegiate

Education. The 3rd respondent accepted the said condition and worked in the college. The University approved the qualification on 16.09.1990.

Thereafter, for the purpose of approval of appointment and grant, the petitioner''s college submitted the proposal dated 11.01.1991 to the Deputy

Director of Collegiate Education, Tirunelveli Region, the 2nd respondent.

When the proposals were pending, the 3rd respondent, due to some personal reasons tendered his resignation by a letter dated 17.03.1992

without giving any notice as per the rules. The petitioner has further submitted that after resignation, he had joined the department of Anna

University and stated to be working on the date of filing of the writ petition.

The petitioner has further submitted that the educational authorities approved the appointment and sanctioned grant, for the period from

26.06.1991 to 17.03.1992 and that the Deputy Director of Collegiate Education, Tirunelveli Region, the 2nd respondent deducted a sum of Rs.

11,882.45 towards the notice period salary. Consequently, the 2nd respondent disbursed a sum of Rs. 23,985.45 as the salary, due and payable

to the 3rd respondent from the date of approval of his appointment.

When the Principal of the petitioner college by letter dated 12.03.1993 intimated the 3rd respondent, of the grant made by the Education

Department and the deduction of Rs. 11,882.45 towards the notice period, the said letter was challenged by the 3rd respondent in W.P. No.

15905 of 1993. He also sought for a direction to the respondents therein, to pay salary from 09.04.1990 to 25.06.1991.

In the above writ petition, the petitioner college inter-alia contended that when there was a vacancy for the post of Lecturer in the Department of

Mathematics, the management requested a list from the Employment Exchange and from the list of candidates furnished by the Employment

Exchange an interview was conducted on 31.03.1990 and thereafter, the petitioner was appointed on 09.04.1990, subject to conditions stated

supra. It is also the case of the writ petitioner that the 3rd respondent had accepted the conditions of appointment and joined the service and

therefore he is estopped from claiming salary from the Management. The writ petition came to be dismissed on 27.06.2000 holding that the 3rd

respondent has failed to prefer the alternative remedy provided under the Act. Being aggrieved, the 3rd respondent preferred a Writ Appeal W.A.

No. 1559 of 2000. The Division Bench directed the 3rd respondent to make an appeal to the concerned authority for grant of pay for the period

between 09.04.1990 and 25.06.1991.

Pursuant to the same, the Director of Collegiate Education, Chennai has rejected the representation / appeal, by the impugned order stating that

the 3rd respondent having been appointed by the Management on 09.04.1990, without obtaining prior permission from the education department

and when the writ petitioner college has failed to follow the rules of reservation, the 3rd respondent is not entitled to claim salary from the

Education Department. The Director of Collegiate Education has directed the petitioner management to pay salary to the 3rd respondent.

Subsequent to the impugned order, the 3rd respondent has submitted a representation dated 04.06.2001, to the management demanding salary of

Rs. 48,998.75 with interest accrued to the tune of Rs. 14,077.57, totalling to a sum of Rs. 63,076.32. Being aggrieved by the order of the 1st

respondent directing payment, the petitioner college has preferred this writ petition.

Assailing the impugned order, Mrs. Mahalakshmi, learned Counsel appearing for the writ petitioner college submitted that at the time of

appointment of the 3rd respondent, a list of candidates was received from the Employment Exchange and only thereafter, the 3rd respondent

belonging to Open Category was appointed, even though there was a vacancy in the Backward Class category. According to her, both the

vacancies, meant for Open Category, as well as Backward Class category were filled up, within a short duration of two weeks and therefore there

was no gross illegality committed by the management in filling up the vacancies.

Learned Counsel for the petitioner college further submitted that at the fag end of the academic year, a vacancy in the department of

mathematics arose consequent to the resignation of Mr. A. Karthikeyan, a Selection Grade Lecturer and therefore appointment of a teacher was

necessitated taking to consideration the interest of the students who were to be prepared for the examination and that some portion of the syllabus

was to be completed before the examination. She also submitted that as the appointment orders issued to both the Backward Class and Open

Category candidates were approved by the educational authorities, it should be construed that the violation, if any, as ratified and therefore the

petitioner Management cannot be directed to pay salary for the period between 09.04.1990 and 25.06.1991.

It is also her contention that the 3rd respondent being appointed by the petitioner college, against a sanctioned post on 09.04.1990, with

adequate educational qualifications, by the Madurai Kamaraj University, the educational authorities ought to have approved his appointment from

09.04.1990 or atleast from 20.04.1990, the date on which the communal roster was followed.

Inviting the attention of this Court to the appointment order dated 09.04.1990, learned Counsel for the writ petitioner further submitted that

even in the appointment order, it was made clear that the same would be subject to the approval of the University and the educational authorities.

Having accepted the conditions and resigned the service, without proper notice, the 3rd respondent has no right to claim salary from the petitioner

and therefore the 1st respondent has jurisdiction to direct the petitioner to make payment to him. For the above said reasons, she prayed that the

impugned order be set aside and consequently a direction may be issued to the respondents 1 and 2, to pay salary to the 3rd respondent, for the

period between 09.04.1990 to 25.06.1991.

The Director of Collegiate Education, Chennai has filed a detailed counter affidavit.

Based on the averments in the counter affidavit, Mr. P. Subramanian, learned Additional Government Pleader submitted that the petitioner

college is one of the Government aided colleges. As per Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Act, 1976, any appointment

made by the management should not exceed the staff strength fixed by the 1st respondent. At the fag end of the academic year the 3rd respondent

has been appointed by the management, on their own without, following the rule of reservation and without getting the staff strength fixed.

Though, the 3rd respondent was appointed without prior permission, as a special case, his appointment was approved with effect from

26.06.1991 and that the Deputy Director of Collegiate Education, Tirunelveli Region, the 2nd respondent herein sanctioned Government grant

towards his salary for the period from 26.06.1991 to 17.03.1992 and deducted three months notice period salary, as he had resigned his post,

without giving three months notice.

Learned Additional Government Pleader, further submitted that earlier the petitioner College has deducted the salary paid by them, for the

period from 09.04.1990 to 17.03.1992. In these circumstances, the 3rd respondent filed Writ petition W.P. No. 15905 of 1993, for a direction to

respondents therein for payment of salary for the non approved period and that the same was dismissed by this Court on 27.06.2000. Being

aggrieved by the same, the 3rd respondent preferred an appeal in W.A. No. 1559/2000, and pursuant to the direction dated 11.09.2000, the

Director of Collegiate Education, Chennai has considered the appeal, with reference to the statutory rule and rejected the same. He submitted that

there is no illegality in the impugned order.

Learned Additional Government Pleader further submitted that as per the rules of reservation, roster point No. 3 has to be filled up with a

open category candidate and roster point No. 4, has to be filled up with a candidate belonging to Backward Class Community. Admittedly, the

college has failed to follow the roster and therefore there is a violation.

Though there was a violation of the communal roster, as a special case, the appointment of the 3rd respondent was approved by the 2nd

respondent with effect from 26.06.1991. According to him, the order of approval dated 12.09.1993 of the 2nd respondent granting approval from

26.06.1991, has not been challenged by the petitioner college and it has reached finality. He also submitted that the said order cannot be

collaterally put to challenge in this writ petition, wherein the request of the 3rd respondent to the educational authorities to pay salary for the period

between 09.04.1990 to 17.03.1992 has been rejected. For the above said reasons, he prayed for dismissal of the writ petition.

Heard the learned Counsel for the parties and perused the materials available on record.

There is no dispute that the 3rd respondent was appointed in the petitioner college, with effect from 09.04.1990 in a vacancy caused due to

the resignation of Mr. A. Karthikeyan, a Selection Grade Lecturer in Mathematics from his service on the afternoon of 26.10.1989. The

appointment order reads that his appointment would be subject to the approval of the educational qualifications by the University and the Deputy

Director of Collegiate Education, Tirunelveli District.

The petitioner college by letter dated 11.01.1991 has sought for approval of appointment. On scrutiny of the proposal, the Deputy Director of

Collegiate Education, Tirunelveli District has found that the appointment of the 3rd respondent has been made on 09.04.1990, at the fag end of the

academic year. Further the orders of fixation of staff strength for the year 1989-90 and 1990-91 were not enclosed along with the proposal

submitted by the College. The Deputy Director of Collegiate Education, Tirunelveli District has also found that the appointment of the 3rd

respondent against roster point No. 4, before filling up roster point No. 3 meant for a open category candidate, as violative of the rule of

reservation, in the matter of appointment of teachers. Material on record shows that in this regard, by proceedings dated 31.07.1991, the 2nd

respondent has directed the Secretary of the petitioner college to submit an explanation.

In response to the same, the petitioner college has submitted a reply dated 16.08.1991 stating that, on 26.10.1989, Mr. A. Karthikeyan, a

Selection Grade Lecturer in Mathematics had resigned from the college and taking into consideration the interests of students, the 3rd respondent

was appointed to complete the syllabus prescribed for the academic year 1989-90. Therefore in the said reply, the college has submitted that the

appointment was against a sanctioned post and also to balance the work load in the department of mathematics.

As regards the allegation of violation of roster point, the petitioner college has submitted that a request to the Assistant Director, Employment

Exchange, Chennai was made to fill up the vacancy at roster point No. 3. In the list forwarded by the employment exchange only two names

belonging to Open Category was included. Since the college required a list of candidates belonging to Backward Class, the list forwarded by the

Employment Exchange was returned. In the meanwhile, the 3rd respondent was found suitable and appointed to the post of lecturer on

09.04.1990, subject to the conditions stated in to the appointment order. With the above explanation, the petitioner college sought for an approval

of the appointment of the 3rd respondent, as a special case from 09.04.1990.

After exchange of correspondence, the Director of Collegiate Education, Chennai by his proceedings dated 12.09.1993 has approved the

appointment of the 3rd respondent with effect from 26.06.1991, as a special case. The said order has been communicated by the Deputy Director

of Collegiate Education, Tirunelveli Region, the 2nd respondent, to the petitioner.

It is to be noted that the approval granted was only from 26.06.1991 and not from 09.04.1990, the date on which the 3rd respondent was

appointed and that the management of the college has not questioned the order of approval granted by the educational department. From the

perusal of the proceedings in Mu.Mu. No. E3/4119/93 dated 11.05.1993 of the Deputy Director of Collegiate Education, Tirunelveli Region,

Tirunelveli, the 2nd respondent addressed to the Secretary of the petitioner college, it is evident that the request of the petitioner''s college dated

26.06.1993 seeking payment for three months notice period has also been rejected. The said proceedings has also not been put to challenge by

the petitioner college.

Pleadings disclose that the petitioner having extracted the work from the 3rd respondent for the period between 09.04.1990 to 17.03.1992,

has also deducted the salary paid to him for the above said period. Having extracted the work from a qualified teacher, in particular, a Doctorate in

Mathematics for the above said period, it is not open to the writ petitioner to seek for a direction against the educational authorities to grant salary

for the unapproved period also.

As stated supra, the petitioner college has not challenged the restriction of approval granted by the educational authorities from 26.06.1991

before this Court. What is now impugned is only the rejection of representation made by the 3rd respondent to the educational authorities seeking

payment for the period from 09.04.1990 to 26.06.1991. Mere approval of educational qualifications by the University, is not sufficient for

approval of the appointment, which in the instant case has been made contrary to the roster to be followed by the petitioner institution which

receives aid from the Government.

Having violated the rules of reservation in the matter of appointment of lecturers, the petitioner college cannot as a matter of right demand that

the educational authorities should make payment for an irregular appointment made by them. Needless to say that aided colleges have to follow the

provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and any directions issued by the Government or the educational authorities

from time to time. The violation of the rule of reservation has been implicitly admitted by the writ petitioner, but the reasons assigned are due to

exigency and non availability of a suitable candidate to fill up the vacancy at roster point No. 4. If the petitioner college were not satisfied with the

candidates sponsored by the employment exchange, they should have asked for a fresh list of candidates and informed the educational authorities

about the non-availability of suitable candidates, and sought for permission to fill up from the open market.

On the facts of this case, it is useful to refer to a decision of Supreme Court in Govt. of A.P. and Others Vs. K. Brahmanandam and Others, .

The question that was posted before the Supreme Court was whether the State or Educational institutions is liable to bear the financial burden of

wages to the respondents who were stated to have been granted appointment in violation of the mandatory provisions and whether a Writ of

Mandamus could be issued.

In the reported case, the management of the institution before recruiting the respondents, neither obtained prior permission from the District

Education Officer nor made advertisement in two newspapers, nor notified the vacancies to the employment exchange. Even approval of

appointments was not taken from the District Education Officer. Allowing the appeal, the Supreme Court at Paragraph Nos. 14 to 16 held as

follows:

The liability of the State to pay salary to a teacher appointed in the recognised schools would arise provided the provisions of the statutory

rules are complied with, subject to just exception. The right to claim salary must arise under a contract or under a statue. If such a right arises under

a contract between the appointee and the institution, only the latter would be liable therefor. Its right in certain situation to claim reimbursement of

such salary from the State would only arise in terms of the law as was prevailing at the relevant time. If the State in terms of the statute is not liable

to pay the salary to the teachers, no legal right accrues in favour of those who had been appointed in violation of mandatory provisions of the

statute of statutory rules.

The equality clause contained in Articles 14 and 16 of the Constitution of India, it is trite, must be scrupulously followed. The court ordinarily

would not issue a writ of or in the nature of mandamus for regularisation of the service of the employee which would be violative of the

constitutional scheme.

Appointments made in violation of the mandatory provisions of a statute would be illegal and, thus, void. Illegality cannot be ratified. Illegality

cannot be regularised, only an irregularity can be.

In the case on hand, the appointment of the 3rd respondent has been found to be contrary to the roster to be followed by the management and

for other reasons stated therein. The approval of the 3rd respondent has been granted only with effect from 26.06.1991 by proceedings in

Mu.Mu. No. E3/4119/93 dated 11.05.1993. The said proceedings have not been challenged by the petitioner college. The proceeding issued to

the petitioner college, which has reached its finality in the year 1992, cannot be collaterally challenged at this length of time. For the above said

reasons, I do not find that the order of the 1st respondent suffers from any manifest illegality warranting interference. Hence the writ petition is

dismissed. No costs.