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Judgment
N. Paul Vasanthakumar, J.—The prayer in the writ petition is to quash the order dated 26.7.2007 passed by the second Respondent insofar
as it denies the Petitioner''s right of regularization of service as Lecturer in Botony with effect from 19.9.2003 and direct the second Respondent to
regularize the Petitioner''s service with effect from 19.9.2003 to 30.7.2007 with all monetary benefits.
The case of the Petitioner is that he has passed M. Sc. Botony and M. Phil degrees from Manonmaniam Sundaranar University, Tirunelveli, and
he was appointed as Lecturer in the Department of Botony in the 4th Respondent Aided Minority College with effect from 19.9.2003 in the
vacancy that arose due to the retirement of one N. Stephen Julius on 17.9.2003. The Petitioner joined duty on 19.9.2003. The sanctioned posts in
the Department of Botony in the 4th Respondent aided college was six as per the staff fixation order passed by the second Respondent dated
18.5.2000. There was no reduction of student strength as well as the norms for the sanction of post i.e., workload. Therefore, the said staff
strength remains as such all these years.
On 21.1.2004 the Petitioner submitted a representation to the second Respondent seeking approval for the payment of salary with effect from
19.9.2003. The 4th Respondent management also sent a proposal with a similar request. The second Respondent by order dated 26.7.2007
granted permission to fill up two vacancies in the Department of Botony, which resulted in issuing another order by the 4th Respondent appointing
the Petitioner from 28.7.2007, pursuant to which the Petitioner''s appointment is approved only with effect from 30.7.2007 and approval from
19.9.2003 to 29.7.2007 was denied and he was not paid salary and other benefits for the said period. Hence the Petitioner has filed this writ
petition with the above said prayer.
The grounds raised by the Petitioner are that the Petitioner having been appointed in the 4th Respondent Aided Minority College within the
sanctioned post viz., six post, that too in a retirement vacancy, the second Respondent is bound to approve the Petitioner''s appointment from
19.9.2003 instead from30.7.2007. It is also the case of the Petitioner that from the year 2003-2004there is no reduction in staff strength and no
such order was passed by the second Respondent either under Rule 11 of the Tamil Nadu Private Colleges (Regulation)Rules, 1976, or on any
other ground. The order passed by the second Respondent on26.7.2007 granting permission to fill up two posts is without any basis, particularly
when six posts are sanctioned and Petitioner is one of the Lecturer appointed in the said vacancy. The staff fixation order issued by the second
Respondent for the year 1999-2000 is filed in the typed set of papers wherein the Department of Botony is sanctioned with 1+5 posts. The
second Respondents proceedings dated 18.5.2000 also discloses the sanction of six posts and permissions also granted to fill up one post which
was vacant in the Department of Botony as well as in the Department of Tamil at that time. No variation of the said staff fixation is communicated
to the management till date.
The writ petition was admitted on 19.10.2009 and notice was served on the Respondents on 5.11.2009, 30.10.2009, 3.11.2009 and
10.11.2009 respectively. However, no counter affidavit is filed by the Respondents 1 to 3 to controvert the contentions raised in the affidavit filed
in support of the writ petition.
The learned Counsel for the Petitioner submitted that the Petitioner having been appointed in a sanctioned aided post in the Department of
Botony and his service having been utilized from 19.9.2003 he is entitled to get his appointment approved with salary and other benefits from the
said date. The learned Counsel also submitted that the issue involved in this writ petition is covered by the order of this Court in W.P.(MD) No.
5363 of 2005 wherein a similar writ petition filed by one of the Lecturer in the department of Botony in Scott Christian College, Nagercoil was
approved not from the date of appointment, which was made on 8.3.2002, but approved from 27.6.2007 and this Court allowed the writ petition
filed by the said Lecturer in the Department of Botony from the date of initial appointment. Learned Counsel also submitted that in W.P. No. 4960
and 14450of 1997, order dated 10.7.2007 this Court allowed similar writ petition and the same was confirmed in W.A. No. 93 and 94 of 2008
on 6.1.2010. The learned Counsel also produced the order passed by the second Respondent granting approval of the appointment of one
Lecturer in the Department of Malayalam from the date of initial appointment, who also obtained similar order in W.P. No. 28396 of 2004
dated29.3.2006 and the said order was implemented by the second Respondent in his proceedings Pa. Mu. No. 5039/F2/04 dated 27.6.2006 by
granting approval from 4.9.2002,the date on which the said Lecturer was initially appointed. The learned Counsel also relied on a judgment of this
Court in W.P. No. 6219 of 2007 dated 30.10.2009wherein another Lecturer in the very same Department of Botony in the 4thRespondent
College was ordered to be given approval from the date of initial appointment i.e., from 12.6.2002. The learned Counsel therefore submitted that
the matter in issue is already covered by the judgment o this Court including the Division Bench, in which I was also a party.
The learned Government Advocate was unable to dispute the said submission made by the learned Counsel for the Petitioner including for the
approval order passed by the second Respondent by order dated 27.6.2006 insofar as the approval granted to the Lecturer in the Department of
Malayalam in the 4th Respondent College.
Similar issue was considered by me in W.P. No. 22549 of 2010 by order dated 24.11.2010. In the said decision, following the earlier orders, I
have allowed the writ petition filed by the Lecturer in the Department of Botony in Scott Christian College, Nagercoil and ordered to give approval
from 8.3.2002 instead from 27.3.2007. In the said order it is held thus,
The learned Counsel for the Petitioner submitted that once the staff strength is approved by the Director of Collegiate Education, as per Rule
11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, the appointment made within the said staff strength, does not require any
approval for filling up of the post. Such approval may be needed in the cases, where the educational authorities taking note of the reduction of
students strength initiate proceedings to reduce the teachers strength. In the absence of such initiation of proceedings for the purpose of reduction
of the sanctioned strength, there has been absolutely nothing for the management to get prior permission to fill up the vacant post, and appointment
without prior approval cannot be stated as irregular appointment at all.
On the other hand, the learned Government Advocate submitted that even if it is within the sanctioned strength, the educational authorities have
every right to decide periodically every year as to whether the teachers strength, approved earlier to be retained or to be reduced based on the
student strength and therefore, whenever vacancy arose in the private colleges, it is the duty of the management to get approval of the educational
authorities.
In this context, it would be worthwhile to extract Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules 1976, which reads as
follows:
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 over all financial considerations.
No doubt, the above Rule enables the Director of Collegiate Education to fix the teachers strength from time to time, with reference to the
various norms. But on the facts of the present case, it is the definite case of the fourth Respondent management that in the year 1999, the Director
of Collegiate Education based on the students strength and other norms then exist has fixed the staff strength and that has never come down in the
subsequent years and therefore, there was absolutely no occasion for the educational authorities to re-consider the strength of the teaching strength
of the third Respondent college. Under such circumstances, as a minority institution, certainly the fourth Respondent has got a right to administer
the Private Institution, within the ambit of Article 30 of the Constitution of India. Of course, the person appointed is having the required
qualification. It is not in dispute that the Petitioner is fully qualified for the appointment to the post of Lecturer in Botany and it is also not in dispute
that the appointment of the Petitioner made in the fourth Respondent college was within the sanctioned strength, since admittedly the appointment
was made in a vacancy, caused due to the retirement of the previous incumbent. In that view of the matter, there is absolutely no reason to come to
the conclusion that the fourth Respondent should have obtained prior permission for filling up of the post.
The purport of Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 came to be discussed by the Honorable Mr. Justice
ELIPE DHARMA RAO in the order dated 29.03.2006 in W.P.(MD) No. 28396 of 2004, when the Government took a similar stand and raised
such an argument, and the learned Judge has held that no prior permission is required so long as such appointment has been made within the
sanctioned post. Following are the relevant paragraphs in this regard, which read as follows:
So, the question that now arises for consideration is s 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 over all 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 considerations 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 of 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 of 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.
Thereby held that the rejection of proposal for approval of the appointment made is contrary of the Provisions of Rule 11(1) of the Rules.
That proposition was followed by the Honorable Mr. Justice S.RAJESWARAN in the order in W.P. Nos. 4960 & 14450 of 1997, dated
10.07.2007, wherein the learned Judge after referring to Rule 11(1) of the Tamil Nadu Private Colleges (Regulation) Rules 1976, has set aside the
rejection order, which was made on the ground that prior approval was not obtained and directed the educational authorities to grant approval.
The said judgment of the learned Single Judge, came to be questioned by the educational authorities in W.A. Nos. 93 and 94 of 2008, which
came to be decided by a Division Bench of this Court wherein I was also a party and in the judgment dated 06.01.2010, the Division Bench
confirmed the order of the learned single Judge and held as follows:
The learned single Judge has dealt with both the above said writ petitions together and by following the decision of this Court rendered in W.P.
No. 28396 of 2004, dated 29.03.2006, the learned Judge has categorically held that once appointment of a person in a sanctioned post is made in
accordance with law, no prior permission from the Director of Collegiate Education is required. While holding so, the learned Judge has quashed
the impugned proceedings, dated 28.02.1997 and directed the Appellants to approve the writ Petitioner''s (C. Karunakaran) appointment from
02.07.1990 with all consequential service benefits.
The said order of the Division Bench has become final. Hence, the matter in issue is covered by the said judgment of the Division Bench.
In the light of the categorical pronouncement on the issue, especially that of the Division Bench as stated above, the writ petition is disposed of
with a direction to the second and third Respondents to grant approval for the appointment of the Petitioner in the fourth Respondent college as
Lecturer in Botany, with effect from the date of his appointment i.e. on 08.03.2002 and also release the teaching grant from the said date till
26.03.2007 and such order shall be passed within four weeks from the date of receipt of a copy of this order. No costs.
In view of the above cited decisions I am of the view that the Petitioner is entitled to get the relief as sought for as the issue involved in this writ
petition is covered by the above said judgments. Consequently the writ petition is allowed with a direction to the second Respondent to approve
the appointment of the Petitioner in the Department of Botony from the date of Petitioner''s initial appointment i.e, from 19.9.2003 with salary and
also confer all other eligible benefits from the date of initial appointment for all purposes. The arrears of salary payable is directed to be paid by the
Respondents 1 to 3within six weeks from the date of receipt of copy of this order. There is no order as to costs.