M.S. Manvizhi and Another vs The Govt. of Tamil Nadu and Meenakshi College for Woman

Venkataswami, J.—The petitioners who are non-teaching staff in the third respondent College have filed this writ petition. Though the prayer in the writ petition is for the issue of a writ of Mandamus directing the 1 st respondent to dispose of the petitioners'' appeals dated 2-3-1986 in accordance with law, an occasion has arisen to decide an incidental issue as well, namely whether the appeals filed by the petitioners are maintainable under S. 20 (b) of the Tamil Nadu Private College (Regulation) Act, 1976 (hereinafter referred to as the Act). Because of the stand taken by the first respondent in an identical matter, holding that no appeal lies, the necessity to decide this issue has arisen. The petitioners are employed in the third respondent college as Library attender and Laboratory Assistant respectively and they are permanent employees. According to the petitioners, their claims for further promotion to the post of Junior Assistant were illegally turned down by the third respondent. Aggrieved by that order of the 3rd respondent, they have preferred appeals to the first respondent and according to the petitioners, the same are pending from 2-3-1986.

Normally, in matters of this kind, mandamus giving directions to the appropriate authorities will be issued stipulating a specified time to dispose of the matter. With that view, notice of motion was ordered on 27-6-1986. In response to the notice of motion, the learned Additional Government Pleader (writs) has entered appearance for respondents 1 and 2 and Mr. R. Biksheswaran has entered appearance for the third respondent. On behalf of the third respondent a detailed counter affidavit, on merits, has also been filed.

At the outset, I would like to make it clear that I am not concerned with the merits of the case. Because the first respondent in an identical matter in G.O. (Permanent) No. 1203 Education dt. 28-7-1987, has taken the view that no appeal in identical circumstances will lie under S. 20 (b) of the Act, notwithstanding an order of Mohan, J. in W.P. 4155 of 1987, directing the first respondent to dispose of the appeal, the question whether an appeal lies or not has to be decided. For this purpose, the matter was adjourned on more than one occasion to enable the learned counsel for the respondents to get instructions.

Mr. Chandru, learned counsel appearing for the petitioners, contending that an appeal lies against the order of the third respondent declining to give promotion to the petitioner, submitted that a perusal of the Ss. 17, 20(b) of the Act and R. 11(4) (i) of the Rules framed thereunder as amended by G.O. Ms. No. 60 Education (R.O.) dt. 20-1-1986 will clearly support his stand. Ss. 17 and 20 of the Act and R.11(4) (i) read as follows--

Conditions of service, etc., of teachers and other persons employed in private colleges--The Government may make rules in consultation with the University regulating the number and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respects disciplinary matters but excluding qualifications) of the teachers and other persons employed in any private college.

Appeal against orders of punishment imposed on teachers and other persons employed in private colleges--Any teacher or other persons employed in any private college--

(a) who is dismissed, removed or reduced in rank or whose appointment is otherwise terminated; or

(b) whose pay or allowances or any of whose conditions of service are altered or interpreted, to his disadvantage, by an order, may prefer an appeal against such order to such authority or office as may be prescribed and different authorities or officers may be prescribed for different classes of private colleges.

Explanation;--In this section, the expression ''Order'' includes any order made on or after the date of commencement of this Act in any disciplinary proceeding which was pending on that date.

R. 11(4) (i); Promotions in respect of teaching staff shall be made on grounds of merit and ability, seniority being considered, only where merit and ability are approximately equal, and in respect of non-teaching staff promotions shall be made on seniority basis, provided other conditions regarding qualifications are satisfied.

In this connection, S. 55 of the Act is also relevant which reads as follows--

Act to be prospective in its application to certain persons--The provisions of this Act shall apply to persons other than teachers, employed in private colleges as from the date of publication of this Act in the Tamil Nadu Government Gazette .

He also cited certain authorities. But I do not consider for construing the scope of the above sections and rule, I need go into those cases.

The third respondent in his order declining to grant promotion to the petitioners, has stated that the Government Order relied on by him, namely, G.O. Ms. 1221 education dated 11-10-1985 is ''Neither mandatory nor recommendatory. It is only a suggestion''. It is further seen from the Order of the third respondent dated 21-2-1986, that the third respondent was not aware of the amendment to R.11 (4) (i) introduced by G. O. Ms. No. 60 Education (R.D.) dt. 20-1-1986. Now the question is, whether the order of the third respondent involves the questions connected with the conditions of service, or the same has interpreted to the disadvantage of the petitioners any of the conditions of service within the meaning of S. 20(b) of the Act. For this purpose, we have to look into S. 17 of the Act extracted above. S. 17 includes promotion in the condition of service. Though S. 17 ex facie applies only to teachers, by virtue of S. 55 of the Act, again also extracted above, will apply to the non-teaching staff as well. If that be so, I do not think there is any difficulty in coming to a conclusion that the impugned order of the third respondent will fall within the scope of S. 20(b) and consequently, an appeal lies to the first respondent.

The third respondent had taken a view that a particular Government Order is only a suggestion. The claims of the petitioners for promotion certainly depend upon the interpretation to R.11 (4) (i) as amended by G. O. Ms. No. 60 Education (R.D.) dt. 20-1-1986 and also the scope of G.O. Ms. No. 1221 Education dt. 11-10-1985, whether it is mandatory or recommendatory or only suggestion. Mr. R. Bhiksheswaran as well as the learned Additional Government Pleader contended that at this stage it cannot be assumed that the appellate authority (first respondent) will dispose of the appeals on the ground that no appeals will lie against the impugned order of the third respondent. The fact that the first respondent in similar circumstances decided that no appeal will lie cannot be taken as a binding precedent on the first respondent and the first respondent can change his opinion if the petitioners are able to convince the first respondent. The learned counsel also submitted that the impugned order of the third respondent will not come within the scope of S. 20(b) of the Act. Mr. Biksheswaran further contended that the Government Order relied on by the petitioners in their representations must be considered as superseded in view of the statutory amendment to R.11(4)(i), I am unable to agree with the submissions made by the learned counsel on behalf of the respondents. For the reasons already given, I am of the view that against the impugned order of the first respondent, an appeal lies under S. 20(b) of the Act, and consequently the first respondent is directed to dispose of the appeals on merits and in accordance with law after giving opportunity to both parties, within four weeks from the date of receipt of a copy of this order. The writ petition is allowed. No costs.