BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01/10/2007 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU W.P (MD) No.9605 of 2006 A.J.M. Innocentia ... Petitioner vs. 1.The Director of Collegiate Education Directorate of Collegiate Education College Road, Nungambakkam Chennai 2.The Regional Joint Director of Collegiate Education Madurai Region, Madurai 3.Lakshmi College of Education Rep. by its Secretary Gandhigram, Dindigul 4.Dr.S.Thangasamy ... Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records on the file of the third respondent pertaining to the impugned order of appointment of the fourth respondent as Principal dated 16.5.2006 in ref. no. 288/INS.7/06 and quash the same and direct the third respondent to appoint the petitioner as the Principal of the third respondent college. !For petitioner ... Mr. V. Prakash, SC for Mr. A. Arul Sagai ^For Respondents 1&2 ... Mrs.V.Chellammal, Spl. GP For Respondent 3 ... Mr.V.Vijayshankar For Respondent 4 ... Mr.A.Srinivasan :ORDER
The present writ petition is filed by an unsuccessful aspirant for the
post of Principal in the third respondent College who is challenging the order
of appointment dated 16.5.2006 appointing the fourth respondent as Principal of
the College. By setting aside the same, the petitioner seeks for a direction to
appoint her as the principal of the third respondent College.
Trust and it is a College of Education. The College is a Private aided
College governed by the provisions of the Tamil Nadu Private Colleges
(Regulations) Act 1976 (for short, ‘Private Colleges Act’]. On an earlier
occasion, when the question of filling up the post of Principal arose, one
M.Sadanandan was appointed directly from outside without considering any of the
successful aspirants, who are available within the College. This necessitated
the petitioner filing the writ petition before the Principal Bench in W.P.
No.4663 of 1999 challenging the appointment of Dr. M.Sadanandan as the Principal
of the College. Two other petitions filed by two other teachers, viz.,
W.P.No.2810 of 1999 filed by one Dr.T.Savadamuthu and W.P. No.1949 of 1999 filed
by one Dr.S.Indirani, for the same relief are also pending. During the
pendency of the writ petition, the said Principal Dr.M.Sadanandan sought for
relieving him from the post of Principal in order to enable him to take up the
appointment of asReader in the Manonmaniyam Sundaranar University. Therefore,
he was relieved from the office of Principal on 30.3.1996 on his own request.
This created a permanent vacancy in the post of Principal. On account of the
vacancy and since the filling up the post of Principal may take a longer time,
the petitioner was directed to take charge of the post of Principal. It is
also stated that the writ petitions pending before the Principal Bench had
virtually become infructuous and, therefore, the College was proposing to
appoint a Principal in accordance with the Private Colleges Act and the Rules
thereunder. Under Rule 11(4) of the Private Colleges Rules, any promotion
shall be given to persons, who are already qualified and working in the College
and selection will be based upon merit and ability and when they are
approximately equal, seniority will be preferred.
3. The College Committee of the third respondent met on 03.5.2006 and
formed the Selection Committee to select the Principal of the College and the
petitioner was also directed to submit her bio-data to attend for an interview
on 16.5.2006 before the Selection committee. On the apprehension that she may
not be selected, she filed another writ petition being W.P.(MD) No.4263 of 2006
before this Court and sought for a prayer to consider her case to the post of
Principal. The said writ petition was dismissed by order dated 17.5.2006 on
the ground that the petitioner had already participated in the interview and if
she is not selected, she can always challenge the selection, if any, made. It
was stated in the College Committee Meeting held on 16.5.2006, that it was
decided to constitute a Selection Committee comprising of the Managing Trustee
of the Gandhigram Trust, Chairman of the College Committee and Principal of the
College Committee, Principal of Yadava Woman’s College, Madurai and Secretary of
the College Committee. The Committee also decided to request the Joint
Director of Collegiate Education, Madurai and representative from the Madurai
Kamaraj University to be members of the Selection Committee and they also
invited Dr.S.Mohan, Dean, College Development Council, Alagappa University and
Dr.N.Balasubramanian, Dean of Bharathiyar University and Dr.S.Mohan did not
attend the meeting. The petitioner, being the acting Principal and also ex-
officio member of the College Committee as well as Dr.S.Indirani, who also
applied for the post of Principal were obviously not made as members of the
selection Committee as they themselves were aspirants for the post. There
were three claimants for the post of Principal within the College. They are
(1) petitioner (2) fourth respondent and (3) Dr.S.Indirani. The committee
decided to appoint Dr.S.Indirani as Vice-Principal of the College for which no
monetary benefit will be paid by the Government.
4. With reference to the appointment to the post of Principal, the
Committee selected the candidature of the fourth respondent and did not favour
the selection of the petitioner. Accordingly, the fourth respondent was
appointed subject to approval by the Government for grant purposes. In this
writ petition, the selection of the fourth respondent is not attacked on the
ground of any lack of qualification. But the procedure adopted by the third
respondent College is under attack.
5. I have heard the arguments of Mr. V.Prakash, learned Senior Counsel
leading Mr. A.Arul Sagai, learned counsel appearing for the petitioner, Mrs.
V.Chellammal, learned Special Government Pleader representing the respondents 1
and 2, Mr.V.Vijayshankar, learned counsel appearing for the third respondent and
Mr.A.Srinivasan, learned counsel appearing for the fourth respondent and have
perused the records.
6. Mr.V.Prakash, learned Senior Counsel leading Mr.Arul Sahay, for the
petitioner submitted that the petitioner has been agitating for the post of
Principal over the yearsand admittedly, between the fourth respondent and
herself, she is senior and she is holding the office of the Principal ever since
the vacancy arose on 31.3.2006 and, therefore, she had gained experience and she
should be appointed to the said post. When confronted with the statutory Rule
found in Rule 11(4)(ii) of the Private Colleges Rules that a criteria for the
appointment is merit and ability and only when they are approximately equal,
seniority will come to the picture, the learned Senior Counsel changed his
course of argument and submitted that the formation of the College Committee was
wrong inasmuch as it excluded two sitting members and instead of appointing some
persons in their places as they were disqualified to sit in the committee
(because of they themselves were aspirants to the post), the College Committee
should have invited persons from outside for sitting in the committee.
Therefore, the procedure for selection cannot be held to be valid. The
argument that there were vacancies in the College Committee cannot be accepted
because the petitioner as well as Dr.Indirani were excluded from committee only
for considering the relevant subject, viz., the selection of Principal and that
too, this is on the ground that they themselves were applicants.
7. The invitation of two experts from outside does not prejudice the
case of the petitioner. On the other hand, it only removes any kind of
personal animosity. The two persons, who are outsiders, cannot be said to be
total strangers to the College. One is the Joint Director of Collegiate
Education, who knows the Rules relating to the Private Colleges and authority
and the second is the subject expert from another University. It is not known
as to how the petitioner is prejudiced by some additional invitees being
invited.
8. In this context it is relevant to point out that a similar question
which arose in respect of a Private School, which litigation finally reached the
Supreme Court, and its judgment is reported in JT 2007 (7) SC 82 [S.Sethuraman
v. R.Venkataraman and others]. Speaking for the Bench, Justice S.B.Sinha
pointed out the scope in a private management in selecting the candidate for the
post of Headmaster. The following passages found in paragraphs 16 and 17 can
be usefully extracted.
Para 16: “The terms and conditions of service of the teachers of an aided
school are governed by the Act and the Rules framed thereunder. The Managing
Committee of the School in terms of Rule 15 of the Rules are enjoined with a
duty to fill up the post of Headmaster primarily on the basis of ‘merit and
ability’. Indisputably, the committee while appointing a person must take
into consideration the merit and ability of the candidate alone and only when
the respective merit and ability of two candidates are equal, seniority will
have some role to play. Respondent No.1 is senior to the appellant only by 13
days. At the relevant point of time, the appellant had passed the prescribed
Accounts test for headmasters conducted by the Tamil Nadu Public Service
Commission in the year 1989. Before us various other factors have been placed
for the purpose of showing that apart from the fact that the appellant was more
qualified, the respondent No.1 having regard to his past services should not
have been considered suitable for appointment to the said post.
Para 17: While exercising the appellate jurisdiction, the appellate authority
has indisputably a plenary power. It may not only consider the respective
educational qualifications and other activities of the respective candidates for
the purpose of arriving at a decision as to which of the two candidates had
better merit and ability, but it should exercise its jurisdiction keeping in
view the views of the Managing Committee,. If two views are possible,
ordinarily, the view of the Managing Committee should be allowed to prevail.”
9. The provisions of the Private Colleges Act and the Rules framed
thereunder are in parimateria with Rule 15 relating to the Private Schools Act
which was considered by the Supreme Court in the decision cited above.
10. In the light of the above, the grounds raised by the petitioner will
have to be necessarily rejected and the decision of the College Committee must
have a pre-eminent role in selecting a person for the post of Principal.
The fact that the petitioner was made to officiate in the post of Principal due
to the resignation of the earlier Principal, is only by a fortuitous
circumstances and the petitioner cannot take advantage of the same. Learned
counsel for the petitioner having failed in his attempts, to persuade changed
his argument altogether into a new line. The said argument is based upon the
Government directive containing in G.O. Ms. No.111 Higher Education Department
dated 24.3.1999. In that order, after accepting the recommendation of the
University Grants Commission, the State Government has informed the Colleges to
follow the method of selection prescribed therein, viz., for selecting the
Principal, a special Committee will have to be constituted and according to the
petitioner, G.O. 111 Higher Education Department dated 24.3.1999 was valid and,
therefore, the selection is liable to be set aside.
11. First of all, the petitioner never raised objection before
participating in the selection process. Secondly, in the affidavit, there is
no reference to any pleading in this regard. Assuming that the said G.O. is
in existence as to how far it will replace the statutory rules framed under the
Private Colleges Act will have to be gone into and the further question whether
the University Grants Commission’s [for short,’UGC’] recommendations as accepted
by the State Government, can be enforced in the teeth of the existing statutory
Rule for which the State Legislature has powers will also have to be examined.
12. While undoubtedly the UGC can issue guidelines in respect of the
academic excellence and coordination of standards in respect of Entry 66 of List
1 prescribed under Schedule 7 of the Constitution, but the power of the State
legislature to make laws relating to Entry 25 of List 3 of 7th Schedule relating
to education cannot be totally ruled out. The selection for the post of
Principal, teachers and other non-teaching staff squarely vests with the College
Committee and by the executive fiat, the College Committee cannot be replaced.
Unless these issues are gone into, mere production of a G.O. issued by the
Government without there being any pleadings on that score, will not help the
case of the petitioner and also considering the fact that the petitioner had
participated in the interview conducted by the selection committee constituted
by the College Committee, it is too late for the petitioner to make objection
regarding the selection made in favour of the fourth respondent.
13. In the above circumstances, the writ petition fails and deserves to
be dismissed. Accordingly, the same is dismissed. However, there will be
no order as to costs.
gri
To
1.The Director of Collegiate Education
Directorate of Collegiate Education
College Road, Nungambakkam
Chennai
2.The Regional Joint Director of Collegiate Education
Madurai Region
Madurai
3.Secretary
Lakshmi College of Education
Gandhigram
Dindigul