IN THE HIGH COURT OF JUDICATURE AT MADRAS.
DATED: 17/10/2003
CORAM
THE HONOURABLE MR.JUSTICE A.K.RAJAN.
WRIT PETITION No.1891 of 1998
Mrs.S.Rosemary. ...Petitioner.
-Vs-
1.The Director of Collegiate
Education, College Road,
Chennai. 600006.
2.The Joint Director of
Collegiate Education,
Vellore Region,
Vellore. 632 006.
3.The Secretary,
Anxilium College,
Gandhi Nagar,
Vellore. 632 006.
4.Sister Alphonsa Mary. ..Respondents.
Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a writ of certiorarified mandamus, as stated therein.
For Petitioner :: Mr.M.Muthupandian.
For Respondents 1 and 2 :: Mr.R.Vijaya Kumar.
Mr.M.Joseph Mathew Jerome... For Respondents
3 and 4.
:ORDER
This writ petition is filed for a writ of certiorarified
mandamus to quash the order of the second respondent and to direct the third
respondent to designate the petitioner as Head of the Department of Chemistry
of the third respondent College.
2.The brief facts that are necessary for the purpose of the
disposal of the case is as follows:-
The petitioner joined as Lecturer of Chemistry on 17.6.1970 in
the Auxilium College Vellore. She became the senior most Lecturer in the
Department in the year 1986. But on that date, the Principal Sister Sesilee
Thomas was a teaching staff in the Chemistry Department. Therefore, she was
the Head of the Department till her retirement on 14.6 .1993. From 15.6.1993
the present Principal by name Alphonsa was appointed as the Principal. She
was working in a different college and she was junior to the writ petitioner
herein. But she was brought to this college and was appointed as the
Principal of the College on the ground that since she was also a Chemistry
Lecturer, she was designated as Head of the Department. But in fact as per
the Rules, the senior most Lecturer in the Department should be designated as
Head of the Department. Therefore,the petitioner made a representation on
6.1.1994 to the Secretary, Auxilium College and also to the Regional Deputy
Director of Collegiate Education to the effect that she being the senior most
Lecturer in the Chemistry Department, she is eligible to be nominated as Head
of the Department. That was rejected by an undated letter on the ground that
the present Principal Sister Alphonsa Mary also belonged to faculty of
Chemistry and so, she automatically heads the Department of Chemistry. Hence
the question of nominating any one else as the Head of the Department does not
arise. Thereafter, writ petitioner made another representation on 15.4.1995
to the Commissioner of Collegiate Education through proper channel. In that
she referred to G.O.Ms.No.1785 dated 5.12.1998 and as per the G.O., senior
most Lecturer shall be nominated as Head of the Department and on that basis,
she wanted her to be appointed as Head of Department of Chemistry. For that,
a reply was sent by letter dated 13.1.1997 by the Director of Collegiate
Education. In that, it is stated that in so far as the Chemistry Department
of the College, the seniority list has not been prepared. Therefore, the
Regional Joint Commissioner of Education was directed to fix the seniority in
the Department and send it to the Department. Again on 17.6.1997 the Joint
Commissioner, Collegiate Education wrote a letter informing that since
Alphonsa Mary, who is the Principal is also a Chemistry Graduate, the
petitioner cannot be designated as Head of Department. Thereafter, the
present writ petition has been filed to quash the impugned order, the second
letter dated 17.6.1997.
3.A counter has been filed by the 4th respondent in which it
is stated that the College is a religious minority educational institution
established and administered by Roman Catholic Congregation of the daughters
of Mary Help of Christians. It is purely a charitable and philanthropic
institution administering several schools. The third respondent is not merely
a private college. It is an educational agency that runs it. It entitles to
the protection of Article 30(1) of the Constitution of India and as defined in
Section 2(7) of the Tamil Nadu Private Colleges Act and the Rules framed
thereunder. It does not receive cent per cent aid for all the staff and there
are several teaching and non teaching staff for which no aid is granted. The
Government is empowered to frame Rules relating to service conditions of the
teachers and the other employees working in this college. No rule restricting
the administrative and disciplinary control exercised by this minority
educational agency is valid. Any service conditions, which are violative of
Article 30(1) of the Constitution of India are void and non est in law and
they cannot be enforced against minority institution; only such of those
provisions of the Act and Rules and other directions issued by the Government
whi ch are not violative of Article 30(1) of the Constitution of India are
applicable to this College. This follows G.O.Ms.No.1785 dated 5.12.1988 in so
far as it is not detrimental to the minority rights guaranteed under Article
30(1). The Minority Educational Agency has the right to choose and appoint
persons, who possess enough merit and ability and whose ideals , interests and
beliefs are compatible with those of the institutions and the educational
agency. As per Rule 11 sub clause 4 and sub clause 1 of Tamil Nadu Private
Colleges (Regulation) Act 1976, promotion in respect of teaching staff should
be made on merit and ability, seniority being considered only where merit and
ability are approximately equal. This Rule is also subject to Article 30(1)
of the Constitution. The administrative control of the College vests with the
Educational Agency and the second respondent was also not empowered to fix
seniority among the staff of this college. The 4th respondent, who is the
Principal cannot under any circumstance be made to take instructions from the
writ petitioner in the Chemistry Department and hence selection of the 4th
respondent as Principal and the Head of the Department is perfectly valid and
in the interest of the administration of the institution. It will be an
anomaly if the Principal of the College is to be subordinate to a staff member
of the Department to which she belongs. The Principal as the natural guardian
of the college is the natural Head of the Department. If any attempt is made
to place the Principal subordinate to the Head of the Department, it would
result in loss of status for the Principal which would violate Article 30 of
the Constitution. Further, the designation of the Head of the Department is
not attached with any monetary benefit but is granted with lesser work load in
teaching hours. As such, the Principal being conferred with the said
designation of the Head of the Department would be more able to administer the
institution and the Department efficiently. If the writ petitioner is
designated as Head of Department of Chemistry, the college will have to
appoint another Lecturer to fill up the unmanned working hours, which will
result in the loss to the college. G.O.Ms.No.1785 is not binding on the third
respondent college. It is also a convention in all the colleges that the
Principal is also Head of Department to which he/she belongs. In the
circumstances, the writ petition deserves to be dismissed.
4. Learned counsel appearing for the petitioner submitted
that Clause 4 Sub Clause 7 of G.O.Ms.No.1785 (Education) dated 5.7.1988, reads
as follows:
“The senior most person in the Department of College,
irrespective of his Ph.D qualification will be nominated and designated as ”
Senior Lecturer/Selection Grade Lecturer/Reader and Head of Department” by the
Director of Collegiate Education and that no special pay will be allowed to
that post”.
Relying upon this, the learned counsel appearing for the petitioner submitted
that the post of the Head of Department does not carry even any monetary
benefit and it is only the designation as Head of the Department and that can
be given only to the senior most Lecturer in the Department. Admittedly, the
writ petitioner is the senior most lecturer in the Department and therefore,
she should have been made as Head of Department of the College. Therefore,
the impugned order is liable to be set aside and the writ petition is to be
ordered as prayed for.
5. Learned counsel appearing for the respondents submitted
that as far as the minority educational institutions is concerned, the
administration shall never be jeoparadised. The minority educational
institutions have been conferred with the complete administration of the
educational institutions. Even in Tamil Nadu Recognised Private Colleges
(Regulation) Act 1976, Section 17 provides that the Government may make rules
in consulation 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. But there are decisions of the Supreme Court right from
the date of Independence till today ending with the decision in “T.M.A.Pai
Foundation . vs. State of Karnataka (2002) Vol.8 S.C.C. 481 . In the
latest decision cited above of the Supreme Court by eleven Judges , the rights
to appoint teachers and right to appoint Headmasters of the school run by the
minorities have been protected. Since it includes within the ambit of
administration of the educational institutions, the Government cannot
interfere with. In the case of the educational institutions run by the
minority agencies, the appointment of Principal or Lecturer cannot be
interfered with. Learned counsel also submitted that the appointment of Head
of Department is also similar to appointment of the Principal. Just like the
Principal, who has to determine and take important decisions, the Head of
Department also has to take important decisions with respect to allotment of
work and making policy suggestions and other important aspects which fell
within the ambit of administration. One of the important duties of the Head
of Department is to allocate teaching hours to the faculty and prepare the
faculty time table in consultation with the faculty members of the Department.
The Head of Department has got the power to assess the work of the teaching
staff in the Department. Therefore, inasmuch as Principal also being a
Chemistry Lecturer, her work may be assessed by the Head of Department which
may be detrimental to the Institution. The Head of Department can also refuse
leave to her own Lecturer. Therefore, the Principal can also be refused
leave. Inasmuch as the Principal is teaching in the college, the Principal
also must be allocated with a time table and lecture hours. If this power is
given to the Head of Department, the Principal would be made subord inate to
the Head of Department and therefore, such an act would amount to interference
with the administration and hence the petitioner cannot be appointed as Head
of Department.
6.Learned counsel submitted that the G.O conferred the power
to designate the Head of Department on the Director of College Education,
which is not also permissible as it amounts to interference with
administration. Further, G.O contemplates only appointment of Head of
Department, who is the senior most among the Lecturers. But in this case, the
Principal was not the Lecturer in the Department. She cannot be considered as
one among the Lecturers and she is above them and therefore, her seniority
cannot be compared with the seniority of the writ petitioner. Therefore, the
choice of Head of Department cannot be taken away from the educational
institutions. In support of this, the learned counsel relied upon the
decision in ” St.Xaviers College .vs. State of Gujarat” (A.I.R.1974 Supreme
Court,1389) wherein paragraph 103 refers to choice of the Teachers and
paragraph 183 refers to choice of the Principal. Relying upon the two
paragraphs in the judgment, the learned counsel submitted that with respect to
the appointment of Lecturers and the appointment of Principal, the Minority
Educational Agency has got absolute power. This cannot be taken away in the
case of the appointment of Head of Department. Further,the learned counsel
referred to another aspect. Though the post was vacant from 1993 onwards, the
writ petition was filed only in 1998 and therefore, on the ground of laches
alone, the writ pet ition is liable to be dismissed. For all these reasons,
the learned counsel for the respondents submitted that the petitioner is not
entitled to the relief as prayed for. Further, the learned counsel submitted
that this petitioner has already retired from service on 30.9.2003 and her
services are extended till 30.5.2004 till the end of the academic year and
presently she is employed under re-employment basis till 30.5.2004. Her
Service Register has already been completed. Her pension papers have also
been sent and therefore, the prayer cannot be allowed for these reasons also.
7. The argument with respect to the assessment of the work of
the Principal, which may be made by the Head of Department and the argument
that the Head of Department may refuse to grant leave for the Principal are
far fetched. By no stretch of imagination such a situation can be concieved.
It is also seen that in the “Role of functions of the Head of Department” of
the Auxilium College, under the head ‘ Faculty Competence’, it is stated that
the Head of Department is available to the Principal. Therefore, the Head of
Department cannot on any day over-ride the authority of the Principal and
cannot act against the interest of the Principal in the administrative matters
including the preparation of time table, granting of leave and assessment of
the work of the Principal as a Lecturer of the Chemistry Department.
Therefore, this argument of the counsel for the petitioner has no force.
Hence it is rejected.
8. On the question of laches, counsel for the respondents
relied mainly on the ground that the Principal was appointed from 16.6.1993
and the Principal was also acting as the Head of Department. But no other
person was designated as Head of Department. The writ petition has been filed
in the year 1998. Therefore, on the ground of laches of more than 4 years the
writ petition deserves to be dismissed. This argument of the learned counsel
for the respondents is not acceptable in view of the fact that the petitioner
has written a letter as early as 6.1.1994 itself and thereafter she has been
corresponding continuously through the College with the Director of School
Education. Earlier a letter was sent by the Government rejecting her claim.
On further representation subsequently another order, which is impugned in
this writ petition was passed in the year 1997. The non challenging of 1995
year order does not in any way prevent the petitioner from challenging the
present impugned order as the petitioner was corresponding to change that
order. Further, in “T.M.A.Pai Foundation .vs. State of Karnataka” ( (2002) 8
Supreme Court Case 481), the Supreme Court has categorically held as follows:-
“Q.5(c) Whether the statutory provisions which regulate the
facets of administration like control over educational agencies, control over
governing bodies, conditions of affiliation including recognition/ withdrawal
thereof, and appointment of staff, employees, teachers and principals
including their service conditions and regulation of fees, etc. would
interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets
of administration are concerned, in case of an unaided minority educational
institution, the regulatory measure of control should be minimal and the
conditions of recognition as well as the conditions of affiliation to a
university or board have to be complied with, but in the matter of day-to-day
management, like the appointment of staff, teaching and non-teaching, and
administrative control over them, the management should have the freedom and
there should not be any external controlling agency. However, a rational
procedure for the selection of teaching staff and for taking disciplinary
action has to be evolved by the management itself.
For redressing the grievances of employees of aided and
unaided institutions who are subjected to punishment or termination from
service, a mechanism will have to be evolved, and in our opinion, appropriate
tribunals could be constituted, and till then, such tribunals could be
presided over by a judicial officer of the rank of District Judge.
The State or other controlling authorities, however, can
always prescribe the minimum qualification, experience and other conditions
bearing on the merit of an individual for being appointed as a teacher or a
Principal of any educational institution. Further regulations can be framed
governing service conditions for teaching and other staff for whom aid is
provided by the State, without interfering with the overall administrative
control of the management over the staff”.
The latest verdict of the Supreme Court as stated above would clearly show
that the regulations can be framed for governing service conditions for
teaching and other staff promotion and designation of the post is also one of
the service conditions.
9.The Division Bench of this Court in “The Principal and
Secretary Madras Christian College East Tambaram, Madras 59 and another .vs.
Dr. (Mrs.) M.Shams and another” (2001 (2) CTC 84) has held as follows:-
“Therefore in the light of the said pronouncement having
accepted the grant subject to the conditions, and the post being only a
designated one which has to be done by the Director of Collegiate Education,
it follows that the first appellant herein is bound to follow the rule of
seniority as has been ordered in this case. Hence, we do not find any
infirmity in the order passed by the learned single Judge and we also hasten
to add that it is unnecessary to go into any other contentions”.
10.In this case the Division Bench has held that
G.O.Ms.No.1785 dated 5.12.1988 is not applicable to the minority educational
institutions. Without going into the aspect as to whether this decision could
be valid after the decision in T.M.A.Pai Foundation case (2002 (8) Supreme
Court Cases 481) and even assuming that this decision is correct and the G.O.
is not applicable to the minority educational institutions, still this court
in the same judgment has held that the office of the Head of Department being
only a designated one and which has to be done by the Directorate of
Collegiate Education, the minority educational institution also is bound to
follow the rules of seniority. Therefore, the Auxilium College is bound to
follow the rules of seniority.
11.Learned counsel appearing for the respondents submitted
that the decision in 2001(2) CTC 84 was given by the Division Bench relying
upon the decision of the Supreme Court in “Unni Krishnan, J.P .vs. State of
A.P.” (A.I.R.1993 SC 2178); Inasmuch as Unni Krishnan’s case has been
over-ruled by the Supreme Court in (T.M.A.Pai) 2002(8) SCC 48 1, this decision
cannot be said to be correct and the decision has to be ignored. This
argument of the learned counsel for the respondents is not acceptable. Unni
Krishnan’s case was referred to in this case only with respect to
administrative control of the educational institution. Further, the Head of
the Department is not a promotional post. It does not carry any special pay.
Only the senior most person is to be nominated and designated as Head of
Department. Therefore, inasmuch as this designation of the senior most
faculty member as Head of Department, which does not involve any financial
commitment, the benefit cannot be denied to the person, who is actually the
senior most in the faculty of Chemistry. Learned counsel mainly relies upon
the fact that earlier the former Principal Sister Sesilee Thomas was Principal
as well as Head of Department of the Chemistry. Therefore, when the Principal
belongs to a faculty, that Department does not require another Head of
Department. In that case, the Principal was also the senior most Lecturer.
Therefore, the question of appointing the next senior most Lecturer as Head of
Department did not arise. But in the present case, admittedly the present
Principal was junior to the writ petitioner and she was working in some other
institution under the control of educational agency and she was transferred to
the Auxilium college and made as a Principal. Therefore, as between the
present incumbent namely Sister Alphonsa Mary and Rosemary the petitioner, the
seniority in the Chemistry Department plays a vital part. Therefore, inasmuch
as the writ petitioner Rosemary is the senior most faculty member, she should
have been designated as Head of Department from the date when sister Alphonsa
Mary was appointed as Principal.
12.The exaggerated concept of ‘Minority Rights’ enunciated
over enthusiastically during 1950 which created a myth that minority
Educational Institutions based on language or religion are above law of the
land and cannot be regulated by any law was rightly discarded by the recent
Eleven Judges’ Bench of the Supreme Court in T.M.A.Pai Foundation Vs. State
of Karnataka ((2002)8 Supreme Court Cases 481); earlier there was an opinion
that the minority institutions are not bound by any of the regulations.
Later, by number of decisions rendered by the Supreme Court, the law relating
to service, Labour, etc., were extended; by the latest pronouncement, the
Supreme Court has held all those minority institutions which receives grant
from the government are bound to obey all the rules made by the Government.
That is except for such of those matters which directly affects the Management
of the institution, all other acts including the service regulations can be
regulated by law. Nominating the senior most lecturer as the Head of the
Department does not in any way interfere with the right of the Management of
the educational institutions. The Supreme Court has also categorically held
that appointment of Principal cannot be regulated except for prescribing
standards and qualifications. Similarly appointment of lecturers also cannot
be interfered with. But, once appointed, they are bound to obey the
regulations with respect to service matters made by law. Making regulations
relating to nomination of Head of the Department cannot be equated with
appointment of Principal or appointment of Lecturer or admission to students
which alone can be said to be matters relating to administration. Therefore,
nominating a Senior most lecturer in a faculty as Head of the Department does
not interfere with the administration of the Educational Institutions.
Therefore, the fact that the Director of Collegiate Education has been
empowered with fixing of seniority or nominating Head of the Department cannot
be said to be an interference with the administration. In fact, there is no
seniority list in the Chemistry Department in this College and as seen from
the communication sent by the Director of Collegiate Education; that shows how
the rules framed by the Government even with respect to ordinary matters
relating to services like fixing of seniority has been disobeyed or not
followed by the minority educational institutions. It is high time that the
minority educational institutions change their mind and attitude and obey the
laws made by the Legislature and Parliament in letter and spirit.
13.The mere fact that the writ petitioner has already retired
from service on 30.9.2003 and she is now in extended service till the end of
the academic year, does not in any way affect the right of the petitioner to
be designated as Head of Department. By no stretch of imagination, this
designation of the writ petitioner as Head of Department can be said to affect
the administration of the Educational Institution. Therefore, the petitioner
herein shall be designated as the Head of the Chemistry Department
retrospectively from the date on which Sister Sessilee Thomas retired from
service.
14.In the result, the Writ Petition is allowed as prayed for.
No costs.
Index:Yes
Website:Yes
nyr
To
1.The Director of Collegiate
Education, College Road,
Chennai. 600006.
2.The Joint Director of
Collegiate Education,
Vellore Region,
Vellore. 632 006.
3.The Secretary,
Anxilium College,
Gandhi Nagar,
Vellore. 632 006.
4.Sister Alphonsa Mary.