Madras High Court
The Secretary vs The State Of Tamil Nadu on 26 July, 2021
W.P(MD)No.25282 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.25282 of 2019
and W.M.P.(MD)No.21878 of 2019
The Secretary,
Mannar Thirumalai Naicker College,
Pasumalai – 625 004,
Madurai District. ... Petitioner
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,
Madurai Region, Madurai – 625 020. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Mandamus, directing the second
respondent Director of Collegiate Education to give permission forthwith
to fill up 9 vacant non-teaching posts viz., 1 Scavenger, 2 Watchman, 1
Waterman, 1 Gardener, 3 Sweepers and 1 Marker, in the petitioner
college, within a reasonable time as may be specified by this Court.
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W.P(MD)No.25282 of 2019
For Petitioner : Mr.K.Ragatheesh Kumar
for M/s.Isaac Chambers
For Respondents : Mr.P.Subbaraj,
Government Advocate.
ORDER
The petitioner has filed this Writ Petition, seeking a direction to
the second respondent to give permission forthwith to fill up 9 vacant
non-teaching posts viz., 1 Scavenger, 2 Watchman, 1 Waterman, 1
Gardener, 3 Sweepers and 1 Marker, in the petitioner college, within a
reasonable time as may be specified by this Court.
2. According to the petitioner, the petitioner college is a recognized
Telugu Linguistic Minority Educational Institution. There are 1258
students studying in the aided sections of the college and 2696 students
studying in the self-financed section. The college is sanctioned with 55
teaching staff and 27 non-teaching staff in the aided sections. Out of the
27 sanctioned non-teaching posts, 9 posts fell vacant due to various
reasons. Though no prior permission is required to fill up the sanctioned
vacancies, as the college being a Minority Institution and the posts which
sought to be filled are sanctioned to the college long back, by abundant
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W.P(MD)No.25282 of 2019
caution, the petitioner college submitted proposal to the second
respondent, through the proper channel i.e., the third respondent on
02.01.2019, seeking permission to fill up the vacancies. Since there is no
response, the petitioner college sent a reminder to the third respondent on
20.02.2019. Again, there was no response. According to the petitioner,
on enquiry with the officials of the respondents 2 and 3, it was informed
that the proposal is kept pending in view of G.O.Ms.No.219, Higher
Education (D1) Department, dated 24.10.2013, which contemplates
certain categories of non-teaching posts shall be filled either by
outsourcing or on contractual basis and the respective college should
meet out the expenses for the same. Hence, the petitioner has come out
with the present Writ Petition.
3. The learned counsel appearing for the petitioner submitted that
the act of second respondent keeping the proposal seeking permission to
fill up the 9 vacant posts of non-teaching staff in the petitioner college
pending, is without any basis. He further submitted that there is no
impediment for the second respondent to give permission to fill up 9
vacancies in the petitioner college by considering the proposal dated
02.01.2019. He further submitted that G.O.Ms.No.219, Higher Education
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W.P(MD)No.25282 of 2019
(D1) Department, dated 24.10.2013, referred by the respondents 2 and 3
was already considered and quashed by this Court in various writ
proceedings. This Court, by order dated 24.11.2017 in W.P.Nos.6679 &
6680 of 2016, quashed the said Government Order and the same was also
confirmed by the Division Bench of this Court in W.A.Nos.2096 and
2124 of 2019 [The State of Tamil Nadu Vs. The Secretary, Nirmala
College for Women, Coimbatore District], by judgment dated
19.07.2019. In the said judgment, this Court has held as follows:
“5. The Government issued an order in G.O.Ms.No.
219, Higher Education, dated 24.10.2013 directing the
Management for outsourcing the vacancies in Group D
categories like Sweeper, Scavenger, Cleaner and Gardner.
The proposals submitted by the Management was rejected
only on the basis of the order in G.O.Ms.No.219 dated
24.10.2013.
6. Rule 11 (1) of the Tamil Nadu Private Colleges
(Regulation) Rules, 1976, contain a legislative mandate to
fix the staff strength every year. Rule 11 (3) provides that in
case of regular vacancy, it is open to the Management to fill
up the post on regular basis, the only requirement
being that the candidate should be qualified.
7. There is no dispute that the Management was
entitled to make appointments taking into account four
vacancies in the post of Non-teaching staff. The denial of
approval was only on account of the order in G.O.Ms.No.
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W.P(MD)No.25282 of 2019
219 dated 24.10.2013. There is no question of issuing a
Government Order for outsourcing, even in respect of the
sanctioned post. When it is made out that the post is
sanctioned, the Management is having every right to fill up
the post. The Government has no right to say that the post
should be filled up only by outsourcing.
8. The posts were sanctioned only in accordance with
the Tamil Nadu Private Schools Regulation Act, 1976 and
the Rules made thereunder. The staff strength fixed as per the
Rules cannot be taken away by issuing a Government Order
directing or permitting outsourcing. We are therefore of the
view that the learned Single Judge was justified in allowing
the Writ Petition.
9. The intra court appeal is dismissed. No costs.
Consequently, connected Miscellaneous Petitions are
closed.”
4. The learned counsel appearing for the petitioner relied on a
judgment of this Court in W.A.(MD)Nos.532 to 534 of 2020 [The State
represented by Principal Secretary to Government, Higher Education
(D1) Department, Vs. Women's Christian College, Nagercoil and
others], dated 06.08.2020 and in the said judgment, this Court has held
as follows:
“8.The respondents are Religious Minority Institutions
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W.P(MD)No.25282 of 2019
and it is well settled position of law that in respect of
sanctioned non-teaching posts, they are entitled to fill up the
said posts of their own choice and of course, subject to
fulfilment of necessary criteria prescribed by the Government.”
5. Heard the learned counsel appearing for the petitioner and the
learned Government Advocate appearing for the respondents and perused
the materials available on record carefully.
6. From the above materials available on record, it is seen that 9
vacancies in non-teaching posts arose in the petitioner college, which is
Linguistic Minority College, due to various reasons. The petitioner
sought permission from the second respondent to fill up the sanctioned
non-teaching posts. The second respondent has not passed any order.
The learned counsel for the petitioner contended that on enquiry from the
office of respondents 2 and 3, it was informed that the proposal is kept
pending in view of G.O.Ms.No.219, Higher Education (D1) Department,
dated 24.10.2013, which contemplates certain categories of non-teaching
posts shall be filled either by outsourcing or on contractual basis and the
respective college should meet out the expenses for the same. The
validity of the said Government Order was challenged in number of writ
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W.P(MD)No.25282 of 2019
petitions and the said Government Order was struck down by this Court.
The Hon'ble Apex Court also dismissed the SLP filed against the
judgment of this Court. The two judgments relied on by the learned
counsel for the petitioner referred to above, makes it clear that the
petitioner college is entitled to fill up the sanctioned non-teaching posts
of their own choice and of course, subject to fulfilment of necessary
criteria prescribed by the Government.
7. In view of the above judgments, the second respondent is
directed to consider the proposal submitted by the petitioner, within a
period of four weeks from the date of receipt of a copy of this order,
taking into consideration the judgments of this Court referred to above.
8. With the above directions, this Writ Petition is disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
26.07.2021
Index : Yes / No
Internet : Yes / No
vsm
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.25282 of 2019
V.M.VELUMANI,J.
vsm
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
1.The Secretary,
State of Tamil Nadu,
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,
Madurai Region, Madurai – 625 020.
W.P(MD)No.25282 of 2019
and W.M.P.(MD)No.21878 of 2019
26.07.2021
https://www.mhc.tn.gov.in/judis/
