IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.06.2008
Coram :
THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN
and
THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA
Writ Appeal No.265 of 2005
1. The Director of Technical Education,
Chennai 600 025.
2. The Additional Director of Technical
Education (Polytechnics), Chennai.
3. The Government of Tamil Nadu,
represented by the Secretary,
Department of Education, Science
and Technology, Secretariat,
Chennai 600 009. Appellants
v.
Bakthavatsalam Polytechnic,
Kancheepuram 631 552,
rep. by its Chairman A.Vamanan Respondent
Writ Appeal filed under section 15 of the Letters Patent against the order of the learned single Judge of this Court dated 26.06.2003 made in writ petition No.5367 of 1996.
For appellants : Mr.S.Rajasekaran,
Additional Government Pleader (Edn)
For respondent : Mrs.N.Mala
JUDGMENT
K.RAVIRAJA PANDIAN, J.
As against the order dated 26.6.2003 made in W.P.No.5367 of 1996, the present appeal is filed.
2. The respondent filed the said writ petition seeking for the relief of issuance of writ of certiorari to quash the order dated 11.02.1996 of the first appellant whereby the first appellant informed the respondent that the allowing of the retired Principal Thiru.N.Nanjayyan to continue in service after the extended period of one year i.e., after 31.05.1995 is impermissible in law and for the extended period from 01.06.1995 to 31.1.1996 the respondent alone was responsible for payment of salary to the said Principal. The learned single Judge allowed the writ petition. The correctness of the same is put in issue in this appeal.
3. The material facts that are necessary for disposal of the appeal are as follows:
The respondent institution is an aided institution, being administered by a Trust through its Governing Council. The service conditions of its teaching staff including that of the Principal are governed by the Grant-in-Aid Code of the Tamil Nadu Technical Education Department. One Thiru Nanjayyan was working as the Principal of the respondent institution and in terms of the Grant-in-Aid code, he had to retire on 31.05.1994 on reaching the age of superannuation. In terms of the Code, no grant-in-aid could be paid to the member of the teaching staff, who have completed the age of 58 years. However, the competent authority i.e., the first appellant herein may relax the rule in respect of Degree institutions upto the age to which the concerned University permits particular member of the Staff to be retained in service and in respect of non-Degree institutions upto the age of 60 years and in very exceptional cases upto the age of 62 years.
4. The respondent Institution, by resolution dated 23.03.1994,resolved to request the appellant to extend the service of the said Thiru Nanjayyan upto the age of 60 years, in view of the fact that no qualified candidate to replace him was available. In terms of the resolution, the respondent made a request to permit the respondent to continue to have the service of the said Thiru Nanjayyan till completion of the age of 60 years. However, the appellant by order dated 25.04.1994, granted extension for the period from 01.06.1994 to 31.05.1995. The efforts taken by the respondent to appoint a qualified person as a Principal from 01.06.1995 went in vain as the Employment Exchange, Government of Tamil Nadu, by their letter dated 07.07.1995 informed the respondent that there was no candidate available satisfying the qualification i.e., possessing of M.E. Degree in Engineering faculty with five years experience as Head of the Department. A non-availability certificate was also issued on 07.07.1995. In the aforesaid situation, on 01.08.1995, the respondent institution informed the appellants about the non-availability of the qualified candidate to be appointed as a Principal and requested the appellant to extend the period of retirement of Nanjayyan by one year upto 31.05.1996. By reason of the order impugned in the writ petition dated 11.02.1996, the said request was rejected. That constrained the respondent to file a writ petition with the prayer as aforesaid.
5.The learned single, Judge after taking into consideration the submissions made and the relevant rules, granted the relief prayed for by the respondent. The correctness of the same is now canvassed before us by the appellants-department.
6. Learned Government Pleader appearing for the appellant submitted that by virtue of the Government Order in G.O.Ms.No.2314 Education, Science and Technology dated 21.12.1982, it is impermissible for the Government to extend the service of the Principal of the respondent Institution beyond the age of 58 years. Even in the original order, wherein extension has been granted upto 31.5.1995, it was very clearly indicated that the extension was only upto that year. When the appellant was not empowered to extend the period of services, as requested by the respondent, the respondent alone is responsible for the salary payable to the Principal. To put it in other words, the respondent is not entitled to grant-any-aid after that period. He further contended that admittedly the said Principal was not working during the period from 01.02.1996 to 31.05.1996. In any event, for that period, the respondent cannot claim grant in aid.
7. Learned counsel appearing for the respondent argued to sustain the order passed by the learned single judge.
8. We heard the argument of the learned counsel on either side and perused the material on record.
9. In this case, the respondent made all earnest efforts to find a proper person to appoint as the Principal of the respondent institution and it is only due to the fact that the employment exchange had issued a non availability certificate to the effect that no candidate possessing M.E in any Engineering faculty with five years experience as Head of the Department in a polytechnic was available, and having no other alternative, the respondent had made a request for further extension. It is an admitted fact that for one year from 01.06.1994 to 31.05.1995 the very same appellant has extended the service of the Principal. When an acceptable reasoning was given by the respondent, there is no valid reason for the appellant not to invoke the enabling provision for extension of service for another one year. The one and the only reason advanced by the appellant was that by G.O.Ms. No.2312 Science and Technology Department dated 21.10.1982, the enabling provision empowering the appellant to extend the service of teaching staff beyond the age of 58 years has been taken away. That argument, we are of the view, cannot be accepted. It is an admitted fact that the respondent institution is governed by the provisions of Grant-in-aid Code. It is true that G.O. Ms. No.2314 dated 21.10.1982 stated that no extension of superannuation would be granted after completion of 58 years. However, by paragraph 4 of the Government Order, the appellant was directed to send the necessary proposal for issue of amendment in Grant-in-aid Code of Technical Education Department. In spite of that, the fact remains that no such amendment has been carried out to the Code. Therefore, the clause 16 of the Grant-in-aid Code which empowers the first appellant to grant permission for extension of service upto the age of 60 years and further extension upto the age of 62 years in very exceptional cases continues to be there in the code. Until the Code is properly amended, the Code only prevails. Though the G.O., is there, that order has not been given effect to. It is curious that the said G.O., was in existence even when the first appellant has granted extension earlier, for the period from 01.06.1994 to 31.05.1995. Hence, the contention now put forward on behalf of the appellant cannot be accepted.
10. However, it is admitted by both sides that the Principal was not in service for the period from 01.02.1996 to 31.05.1996 to which period the respondent cannot seek for grant in aid from the appellant.
11. With this modification, the appeal is disposed of. No costs. The connected miscellaneous petition is closed.
(K.R.P.,J.)(P.P.S.J.,J.)
25.06.2008
Index : Yes
Internet :Yes
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K.RAVIRAJA PANDIAN, J.
And
P.P.S.JANARTHANA RAJA, J.
W.A. No.265 of 2005
25.06.2008