BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/02/2011 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Writ Appeal (MD) No.649 of 2007 and M.P.(MD)No.1 of 2007 Writ Appeal (MD) No.650 of 2007 and M.P.(MD)No.2 of 2007 Writ Appeal (MD) No.172 of 2008 and M.P.(MD)No.2 of 2008 W.A.(MD)No.649 of 2007 The Secretary, St.Joseph's College (Autonomous) Tiruchirapalli - 620 002 .. Appellant vs 1. The State of Tamil Nadu, rep.by its Secretary, Department of Higher Education, Fort St.George, Chennai - 600 009. 2. The Director of Collegiate Education, College Road, Chennai - 600 006. 3. THe Joint Director of Collegiate Education, Tiruchirapalli Region, Theppakulam, Tiruchirapalli. 4. The Bharathidasan University, rep.by its Registrar, Palkalaipeur, Tiruchirapalli, Trichy District - 620 024. .. Respondents
This writ appeal is filed under Clause 15 of the Letters Patent against
the order of the learned single Judge of this Court dated 24.9.2007 made in
W.P.(MD)No.7188 of 2006.
W.A.(MD)No.650 of 2007
The Secretary,
St.Joseph’s College (Autonomous)
Tiruchirapalli – 620 002 .. Appellant
-vs-
1. Dr.M.Kalidoss
2. The Joint Director of Collegiate Education,
Tiruchirapalli – 2.
3. The Director of Collegiate Education,
Chennai – 600 006.
4. K.Sundar Sekar .. Respondents
This writ appeal is filed under Clause 15 of the Letters Patent against
the order of the learned single Judge of this Court dated 24.9.2007 made in
W.P.(MD)No.4882 of 2007.
W.A.(MD)No.172 of 2008
The Secretary,
St.Joseph’s College (Autonomous)
Tiruchirapalli – 620 002 .. Appellant
vs
1. Dr.L.J.Chaarlas
2. The Director of Collegiate Education,
College Road, Nungambakkam,
Chennai – 600 006.
3. The Joint Director of Collegiate Education,
Tiruchirapalli Region, Theppakulam,
Tiruchirapalli.
4. S.Irudayaraj .. Respondents
This writ appeal is filed under Clause 15 of the Letters Patent against
the order of the learned single Judge of this Court dated 8.10.2007 made in
W.P.(MD)No.1989 of 2007.
!For Appellant in all writ appeals … Mr.Isaac Mohanlal
^For RR -1 to 3 in W.A.649/2007; … Mr.R.Janakiramalu,
RR-2 & 3 in W.A.650/2007 & 172/2008 Spl. Govt. Pleader
For R-1 in W.A.650/2007 … Mr.K.Vellaisamy
For R-1 in W.A.172/2008 … Mr.M.Saravanan
for Mr.R.Subramanian
For R-4 in W.A.649, 650/2007 & … No appearance
W.A.172/2008
:COMMON JUDGMENT
All the above writ appeals are filed by the management of St.Joseph
College, Tiruchirapalli, which is a Private Religious Minority College.
W.A.No.649 of 2007 is filed against the order passed by the learned singled
Judge in W.P.(MD)No.7188 of 2006 dated 24.9.2007 dismissing the writ petition
filed by the appellant herein (minority college) challenging the Government
Order issued in G.O.Ms.No.1785 Education H3 Department dated 5.12.1988 insofar
as paragraph 4 Clause 7 is concerned (i.e, Seniormost person in the department
shall be designated as Head of the Department in a College).
2. W.A.No.650 of 2007 is filed by the management against the order
passed in W.P(MD)No.4882 of 2007 dated 24.9.2007, wherein a direction was issued
to the Joint Director of Collegiate Education, Tiruchirapalli, to nominate the
first respondent therein as Head of the Department of Physics Department from
1.6.2007.
3. W.A.No.172 of 2008 is also filed by the management of the College
challenging the order made in W.P.No.1989 of 2007 dated 8.10.2007 allowing the
writ petition filed by the first respondent in the writ appeal and to direct the
management to designate the first respondent as Head of the Department of
Commerce.
4. The brief facts necessary for disposal of these writ appeals are as
follows:
(a) St.Joseph College, Trichy (Autonomous) is an Arts and Science
College, established in the year 1844 administered by the Society of St.Joseph
College, which is a registered Society bearing registration No.7 of 1907-08.
The College is a minority educational institution coming under the purview of
Article 30 of the Constitution of India. The College is now affiliated to the
Bharathidasan University, Tiruchirapalli.
(b) The College is conferred with autonomous status by the University
Grants Commission (UGC). The National Assessment and Accreditation Council
(NAAC) had declared the college as “Accredited at the Five Star Level” in the
year 2004 and UGC has awarded the status of “Centre for Potential for
Excellence” (CPE) in 2004.
(c) The College is a Christian Minority College having more than 3,450
students and about 150 teaching staff, apart from non-teaching staff. The
college is conducting UG and PG courses, apart from Research and Doctoral
courses. It is having 15 departments and each department has a head known as
‘Head of the Department’ (HOD). According to the management, the HOD will take
care of the day-to-day administration of the department including distribution
and allocation of work to the members of the faculty, collection of fees,
preparing time tables, organise internal examinations, etc. The HOD will be the
ex-officio Chairman of the Board of Studies and College Academic Council.
(d) The Government of Tamil Nadu issued G.O.Ms.No.1785 Education (H3)
Department, dated 5.12.1988 giving directions to all aided colleges to designate
the seniormost person in the department as HOD, irrespective of Ph.D
qualification, and that the said designated person will not get any special pay
and allowance to that post. The said Government Order is challenged by the
management/appellant contending that it is an infringement and interference in
the administration of the minority management to run the college with the head
and staff of its choice; that it affects the internal autonomy of the
institution; that it gives power to the Director of Collegiate Education to
designate the seniormost person in the department as HOD in a minority college
is not valid; that the Heads of Department is vested with the administration of
the entire department like the principal of the college; and that, the
management is prevented from designating an eminent person of its choice, etc.
(e) Two of the seniormost persons viz., the first respondent in
W.A.No.650 of 2007 and 172 of 2008 have filed the respective writ petitions
complaining that they have not been designated as HOD of Physics and Commerce.
Taking note of the said Government Order as well as the various decisions of
this Court and the Honourable Supreme Court, the learned Single Judge allowed
the writ petitions filed by the seniormost staff viz., first respondent in the
above writ appeals and dismissed the writ petitions filed by the appellant
challenging the Government Order, against which these writ appeals are preferred
by the management of the College.
5. Mr.Isaac Mohanlal, learned counsel for the appellant College
management contended that the Government Order was issued to nominate/designate
the seniormost person in the department as HOD in Government Colleges/aided
colleges and there is no reference about the applicability of the same to
minority colleges where the appointing authority is the management and the
management alone can designate the HOD. The learned counsel also submitted that
HOD post is like the post of the Principal of the College, having administrative
responsibility and the choice of designation should be left with the management.
By the impugned Government Order the said right of the management is taken away
which is an interference in the right of the administration, guaranteed under
Article 30(1) of the Constitution of India. The learned counsel also submitted
that even though the Division Bench of this Court earlier upheld the claim of a
seniormost lecturer to be designated as HOD, the Government Order was not
challenged in that writ petition and therefore the said judgment cannot be
applied to these cases, as vires of the Government Order is challenged by the
management in this matter. The learned counsel also relied on the judgment of
the Division Bench reported in 2011 (1) CTC 162 (The Forum of Minority
Institutions and Associations v. The State of Tamil Nadu) and contended that in
the said decision the University Grants Commission’s direction to constitute a
Committee to select staff of the minority colleges has been set aside by this
Court and the principle behind the said judgment is equally applicable to the
facts of the case as HOD nomination/designation is the issue in these writ
appeals.
6. Mr.K.Vellaisamy and Mr.M.Saravanan. learned counsels for the first
respondent in W.A.Nos.650/2007 and 172/2008 on the other hand submitted that the
seniormost lecturers were also initially selected by the minority management and
they are continuously employed in the college without any blemish and so long as
their performance is found good by the minority management, they are to be
designated as HOD which will confer some status, though not with additional
emolument or allowance and it is one of the conditions of service. The impugned
order nowhere restricts the right of the management in the administration and it
is only a regulation to designate the seniormost person as HOD. The learned
counsels also submitted that conditions of service can also be fixed by the
Government as the appellant College is getting cent percentage aid from the
Government and therefore the regulations issued by the Government is bound to be
followed by the minority management also. The learned counsels also submitted
that the admission of students, appointment of Lecturer, selection of the
principal are vested with the management and insofar as the designation of HOD
is concerned, it is only designation and no selection process arises to exercise
the discretion of the minority management and therefore the right of
administration is not at all affected and as such the Government Order is not in
violation of the Article 30(1) of the constitution of India. The learned
counsels heavily relied on the judgment of the Division Bench reported in 2001
(2) CTC 84 (The Principal and Secretary Madras Christian College v. Dr.M.Shams
and another) where similar issue regarding the designation of seniormost person
as HOD arose and this Court held that even in minority colleges seniormost
person should be designated as HOD. The learned counsel ultimately submitted
that the order of the learned single Judge is legal and no interference is
called for.
7. We have also heard the learned Special Government Pleader for
respondents 1 to 3 in W.A.No.649 of 2007.
8. We have considered the rival submissions made by the respective
counsels.
9. The point for consideration in these writ appeals are whether the
impugned Government order is affecting the rights of the appellant minority
management in any manner.
10. The appellant College is governed under the Tamil Nadu Private
Colleges Regulation Act, 1976, except certain provisions which are specifically
held not applicable. Under the said Act, minority religious college is also
covered. Section 15 of the Act states that the University may make regulation,
statute or ordinance specifying qualification required for appointment of
teachers in any private college and as per Section 15(2), the Government may
make rule specifying the qualifications required for appointment to any post
other than teachers in any private college. Section 17 empowers the Government
to make rules regarding conditions of service. Tamil Nadu Private College
Regulation Rules, 1976 was framed under Section 53. Rule 7 provides for
payment of grant and Rule 11 deals with conditions of service etc., of Teachers
and others in college.
11. The Government Order issued which was impugned in the writ petition
filed by the management is based on the Government of India, Ministry of Human
Resources Development instructions issued on 17.6.1987, 7.9.1987, 22.7.1988 and
20.9.1988. The relevant clause in the Government order reads as follows:
“The Seniormost person in the department of college irrespective of his Ph.D
qualification will be nominated and designated as Senior Lecturer/ Selection
Grade Lecturer/ Reader/ Head of the Department, by the Director of Collegiate
Education and that no special pay will be allowed to that post.”
This is the only clause challenged by the appellant management. From the
perusal of the above clause in the Government Order, it is evident that it is
only designation of status as HOD and no selection is involved. The learned
counsel for the appellant also submitted that for designating seniormost person
as HOD, no selection procedure is contemplated and the only objection is that
discretion of the management to designate any person in the department as HOD,
is taken away. Admittedly senior most person to be designated as HOD is also
selected and appointed by the management of the minority College initially and
his continuance in the college without giving room for any complaint by
observing the rules and regulations of the College is not disputed. If any
person is unfit to continue as a Lecturer/Senior Lecturer/Reader, he will not be
in a position to continue in the college as disciplinary power is vested with
the management. Thus, on any account, a person serving in the minority college
alone is to be nominated/designated as HOD.
12. (a) In the decision reported in AIR 1974 SC 1389 : (1974) 1 SCC
717 (The Ahmedabad St.Xaviers College SOciety v. State of Gujarat) the Supreme
Court listed out the ambit of right to administration in paragraph 19, which
reads thus,
“19. …………. The right to administer is said to consist of four
principal matters. First is the right to choose its managing or governing body.
It is said that the founders of the minority institution have faith and
confidence in their own committee or body consisting of persons elected by them.
Second is the right to choose its teachers. It is said that minority
institutions want teachers to have compatibility with the ideals, aims and
aspirations of the institution. Third is the right not to be compelled to
refuse admission to students. In other words, the minority institutions want to
have the right to admit students of their choice subject to reasonable
regulations about academic qualifications. Fourth is the right to use its
properties and assets for the benefit of its own institution.”
(b) In the decision reported in (2003) 6 SCC 697 (Islamic Academy of
Education v. State of Karnataka) the Supreme Court held that reasonable
regulations can be laid down by the State Government. Paragraphs 121 reads as
follows:
“121. The right to administer does not amount to the right to
maladminister and the right is not free from regulation. The regulatory
measures are necessary for ensuring orderly, efficient and sound administration.
The regulatory measures can be laid down by the State in the administration of
minority institutions.”
In paragraph 123, the Supreme Court broadly categorised the permissible
regulations, which reads thus,
“123. Some of the permissible regulations/restrictions governing
enjoyment of Article 30(1) of the Constitution are:
(i) Guidelines for the efficiency and excellence of educational
standards (see Sidhajbhai v. State of Gujarat (AIR 1963 SC 540), State of Kerala
v. Mother Provincial ((1970) 2 SCC 417), and All Saints High Schol v. Government
of A.P. ((1980) 2 SCC 478).
(ii) Regulations ensuring the security of the services of the teachers or
other employees (see Kerala Education Bill, 1957, Re (AIR 1958 SC 956) and All
Saints High School v. Government of A.P. ((1980) 2 SCC 478).
(iii) Introduction of an outside authority or controlling voice in the
matter of service conditions of employees (see All Saints High School v.
Government of A.P. ((1980) 2 SCC 478).
(iv) Framing rules and regulations governing the conditions of service of
teachers and employees and their pay and allowances (see State of Kerala v.
Mother Provincial ((1970) 2 SCC 417) and All Saints High School v. Government of
A.P. ((1980) 2 SCC 478).
(v) Appointing a high official with authority and guidance to oversee
that rules regarding conditions of service are not violated, but, however, such
an authority should not be given blanket, uncanalised and arbitrary powers (see
All Saints High School v. Government of A.P. ((1980) 2 SCC 478).
(vi) Prescribing courses of study or syllabi or the nature of books (see
State of Kerala v. Mother Provincial ((1970) 2 SCC 417) and All Saints High
School v. Government of A.P. ((1980) 2 SCC 478).
(vii) Regulation in the interest of efficiency of instruction,
discipline, health, sanitation, morality, public order and the like (see
Sidhajbhai v. State of Gujarat (AIR 1963 SC 540).”
(c) In the decision reported in (1979) 2 SCC 124 (Lily Kurian v. Lewina)
in paragraph 36 the Supreme Court held as follows:
“36. Protection of the minorities is an article of faith in the
Constitution of India. The right to the administration of institutions of
minority’s choice enshrined in Article 30(1) means ‘management of the affairs’
of the institution. That right is, however, subject to the regulatory power of
the State. Article 30(1) is not a charter for maladministration; regulation, so
that the right to administer may be better exercised for the benefit of the
institution, is permissible; but the moment one goes beyond that and imposes,
what is in truth, not a mere regulation but an impairment of the right to
administer, the Article comes into play and the interference cannot be justified
by pleading the interests of the general public; the interests justifying
interference can only be the interests of the minority concerned.”
13. The purport of the impugned order is to designate the seniormost
Lecturer/Selection Grade Lecturer/Reader as HOD as no selection/appointment is
involved for designation of the seniormost person as the right of the management
to administer the college without interference, which is guaranteed right under
Article 30(1) of the Constitution of India, is not affected. It is only a
regulatory measure taken by the Government to give weightage to the seniority at
least at the HOD level. If the seniormost person, who is designated as HOD is
not performing his duties and if any dereliction of duty is noticed, it is upto
the management to take action against such person and the same is also not
curtailed in any manner. Conditions of service to a person in service with some
status after a long number of years of service based on seniority is a
legitimate expectation and the same is only recognised by the Government Order
which is not in any way affecting the rights of the minority management.
Seniority plays a vital role in Employee’s service career, which has to be
recognised. The Supreme Court in the decision reported in 2010 AIR SCW 2116
(H.S.Vankani v. State of Gujarat) considered the said issue and in paragraph 25
held thus,
“25. Seniority is a civil right which has an important and vital role to
play in one’s service career. Future promotion of a Government servant depends
either on strict seniority or on the basis of seniority-cum-merit or merit-cum-
seniority etc. Seniority once settled is decisive in the upward march in one’s
chosen work or calling and gives certainty and assurance and boosts the morale
to do quality work. It instills confidence, spreads harmony and commands
respect among colleagues which is a paramount factor for good and sound
administration. If the settled seniority at the instance of one’s junior in
service is unsettled, it may generate bitterness, resentment, hostility among
the Government servants and the enthusiasm to do quality work might be lost.
……….”
Thus, the contention raised by the learned counsel for the appellant that the
impugned Government Order, particularly clause 7 is in violation of Article
30(1) of the Constitution of India and such regulation will infringe the right
of the management is unsustainable.
14. (a) Similar issue regarding the right of a Teacher, who is
attaining the age of superannuation during the middle of the academic year in a
minority school, can claim the right of re-employment as a matter of right was
considered by the Division Bench of this Court in W.A.No.1179, 1242, 1243/1993,
132/1994 AND 14226/1993 and the Division Bench of this Court in the decision
dated 6.9.1994. The Division Bench held that the teachers attaining the age of
superannuation during the middle of the academic year are entitled to claim re-
employment even in minority schools, if they are satisfying the general
conditions viz., they are physically fit, their character and conduct are good.
The Division Bench in its decision relied on the judgment of the Supreme Court
reported in AIR 1974 SC 1389 (The Ahmedabad St.Xaviers College SOciety v. State
of Gujarat) to come to the above conclusion. In the above Supreme Court
Judgment it is held that minority institutions under the guise of their right
guaranteed under Article 30 of the Constitution cannot claim total immunity from
the regulations and laws of the University, if they want affiliation or
recognition, but the character of permissible regulation must depend upon their
purpose. The Division Bench pointed out that the purpose of the Government
Order permitting re-employment is not to impose a new teacher upon the minority
institutions receiving aid and it is the very same teacher who has been selected
by the private management and continued in their service upto the age of
superannuation and has been found fit for further continuation, is directed to
be re-employed in order to ensure that the benefit of the service is available
to students during the rest of the academic year. The Division Bench ultimately
held that the Government order regarding re-employment was reasonable and was
merely regulatory in nature. A professor, who worked in a minority college is
entitled to demand re-employment till the end of the academic year was
considered by this Court in the decision reported in 1996 WLR 259 (C.Davidthampi
Dhas v. The Governing Body of N.M.Christian College, Marthandam & Others),
wherein this Court held that re-employment can be claimed as per the Government
Order, though the management is a minority college.
(b) In the decision reported in AIR 1987 SC 311 (Frank Anthony P.S.E.
Association v. Union of India) the Supreme Court held thus:
“The excellence of the instruction provided by an institution would depend
directly on the excellence of the teaching staff and in turn, that would depend
on the quality and the contentment of the teachers. Conditions of service
pertaining to minimum qualifications of teachers, their salaries, allowances and
other conditions of service which ensure security, contentment and decent living
standards to teachers and which will consequently enable them to render better
service to the institution and the pupils cannot surely be said to be violative
of the fundamental right guaranteed by Art.30(1) of the Constitution. The
management of minority Educational Institution cannot be permitted under the
guise of the fundamental right guaranteed by Art.30(1) of the Constitution to
oppress or exploit its employees any more than any other private employee.
Oppression or exploitation of the teaching staff of an educational institution
is bound to lead, inevitably, to discontent and deterioration of the standard of
instruction imparted in the institution affecting adversely the object of making
the institution an effective vehicle of education for the minority community or
other persons who resort to it. The management of minority institution cannot
complain of invasion of the fundamental right to administer the institution when
it denies the members of its staff the opportunity to achieve the very object of
Art.30(1) which is to make the institution an effective vehicle of education.”
(c) In AIR 1992 SC 1630 (St.Stephen’s College v. The University of
Delhi) the Supreme Court held that,
“……………….. the regulations which may lawfully be imposed as a
condition of receiving grant must be directed in making the institution an
effective minority institution. The regulation cannot change the character of
the minority institution. Such regulation must satisfy a dual test, the test of
reasonableness and the test that it is regulative of the educational character
of the institution. It must be conducive to making the institution an effective
vehicle of education for the minority community or other persons who resort to
it. It is thus evident that the rights under Article 30(1) remain unaffected
even after securing financial assistance from the Government.”
(d) In T.M.A.Pai Foundation case, (2002) 8 SCC 481, the Supreme Court
held that the right conferred on minority institutions under Article 30 is only
to ensure quality and there can be regulatory measures for ensuring educational
character and standards and maintaining academic excellence. There can be
checks of administration as are necessary to ensure that the administration is
efficient and sound so as to serve the academic needs of the institution.
(e) Any regulation issued without affecting the right of the management
to select a candidate for appointment is upheld by this Court as well as the
Honourable Supreme Court in the decisions reported in AIR 1999 SC 50 (N.Ammad v.
Manager, Emjay High School), (2007) 1 SCC 386 (Secretary, Malankara Syrian
Catholic College v. T.Jose). In the latter case in paragraph 21 by following
the earlier decisions the Supreme Court held that the state can prescribe (i)
the minimum qualifications, experience and other criteria bearing on merit for
making appointments; (ii) the service conditions of employees without
interfering with the overall administrative control by the management over the
staff. It is also made clear, all laws made by the State to regulate the
administration of educational institutions and grant of aid will apply to
minority educational institutions also. But if any such regulations interfere
with the overall administrative control by the management over the staff, or
abridges/dilutes in any other manner, such regulations to that extent will be
inapplicable to minority institutions. The said cases dealt with selection of
Principal or Headmaster of an institution and the Supreme Court held that such
power is vested with the management as the Principal/Headmaster post is of
primary importance, who will be the head of the institution responsible for the
functional efficiency as well as the quality of education and discipline in the
institution. He is also responsible for maintaining philosophy and objects of
the institution.
15. In this case, as noticed by us, the impugned Government Order is
recognising the right of a seniormost person in the department to be nominated
and designated as Seniormost Lecturer/Selection Grade Lecturer/Reader/Head of
the Department. It is undoubtedly a condition of service to persons, who are in
service in the minority college and in other words, it is recognition of right
to the staff serving in the very same minority college to enjoy certain status
without any monitory benefit. The impugned order was issued by the Government
to prevent maladministration and it is intended to promote the excellence of
education of the minority college itself. Therefore, it is only regulatory in
nature and not in any way interference with the rights of the minority
management.
16. The learned counsel for the appellant submitted that the HOD is to
be involved in academic matters including decision making. Merely because the
seniormost person is designated as HOD/Seniormost Lecturer/Selection Grade
Lecturer/Reader, the management is not prevented from getting the views of other
staff members regarding any aspect including academic matters and the collective
view of the staff shall be taken into consideration without depending upon the
view expressed by the HOD/Seniormost person. Hence the contention raised by the
learned counsel for the appellant in that respect has no substance.
17. The learned single Judge considered all these aspects and dismissed
the writ petitions filed by the management and allowed the writ petition filed
by the seniormost lecturers for designation. We do not find any reason to
interfere with the said findings given by the learned single Judge.
In the result, the writ appeals are dismissed and the the order of the
learned single Judge are confirmed. There is no order as to costs. Connected
miscellaneous petitions are also dismissed.
vr
To
1. The Secretary, Department of Higher Education,
Fort St.George, Chennai – 600 009.
2. The Director of Collegiate Education,
College Road, Chennai – 600 006.
3. The Joint Director of Collegiate Education,
Tiruchirapalli Region, Theppakulam, Tiruchirapalli.
4. The Registrar, Bharathidasan University,
Palkalaipeur, Tiruchirapalli,
Trichy District – 620 024.