Madras High Court
The Secretary vs The State Of Tamil Nadu on 26 July, 2021
W.P(MD)No.18504 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.18504 of 2019
and W.M.P.(MD)No.14907 of 2019
The Secretary,
Sadakathullah Appa College (Autonomous)
Rahmath Nagar,
Tirunelveli – 627 006,
Tirunelveli 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,
18, Tiruchendur Road,
Murugan Kurichy, Tirunelveli – 627 002. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Mandamus, directing the third respondent
Joint Director to approve forthwith the appointment of 9 non-teaching
staff (name list annexed) in the petitioner -college and disburse the grant-
in-aid towards their salary and allowances with effect from the date of
their appointment i.e, 25.04.2019.
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W.P(MD)No.18504 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 third respondent to approve forthwith the appointment of 9 non-
teaching staff in the petitioner college and disburse the grant-in-aid
towards their salary and allowances with effect from the date of their
appointment i.e., 25.04.2019.
2. According to the petitioner, the petitioner college is a recognized
Religious Minority Educational Institution. There are 3842 students
studying in the college. The college is partly aided by the Government.
Totally there are 60 teaching staff and 19 non-teaching staff are working
under the aided scheme. That apart, 99 teaching staff and 58 non-
teaching staff are working under the self-financed sections. The second
respondent has sanctioned various non-teaching posts to the petitioner
college under aided scheme. While so, the various sanctioned non-
teaching posts in the petitioner college fell vacant. Though it is not
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W.P(MD)No.18504 of 2019
required to get any permission from the second respondent to fill up the
sanctioned vacancy, the college has submitted proposals to the second
respondent on 12.12.2017 and 26.06.2018, seeking permission to fill up
9 non-teaching posts viz., 1 Typist, 1 Store Keeper, 1 Laboratory
Assistant, 2 Record Clerk, 4 Office Assistant. The second respondent has
not passed any order on the proposal. The petitioner college considering
the need of non-teaching staff, by following due process of law,
appointed 9 non-teaching posts. All the 9 appointments have been made
against the sanctioned vacancy fixed by the second respondent, by his
proceedings dated 11.10.1973 and 23.02.1987. The incumbents
appointed are fully qualified for their respective posts. Immediately,
after the appointment of the 9 non-teaching staff, the petitioner college
submitted proposal to third respondent on 22.07.2019, requesting to
approve those appointments for the purpose of disbursement of grant-in-
aid towards their salary. The third respondent has not passed any order.
According to the petitioner, on enquiry, the third respondent informed the
petitioner that approval will not be granted, as second respondent has
not given prior permission for filling up the said posts. Hence, the
petitioner has come out with the present Writ Petition.
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W.P(MD)No.18504 of 2019
3. The learned counsel appearing for the petitioner relied on the
following judgments, in support of his submissions:
(i) 2012 (4) MLJ 918 [C.Manikandan Vs. State of Tamil Nadu,
Rep. By Secretary to Government, Department of Higher Education],
wherein this Court has held as follows:-
“19.Insofar as the other point with regard to the
requirement of prior permission before filling up the vacancy
is concerned, it is seen that the post of Waterman was
sanctioned by the second respondent through his proceedings
dated 27.05.1977 and the said post was not resumed are
withdrawn later. Therefore, when the petitioner was
appointed in the year 1996 by the 5th respondent-college to
the post of Waterman, the said post was very much available
with 5th respondent-college as a sanctioned post and
consequently, when the petitioner was appointed in a
sanctioned post by the 5th respondent- college there need not
be any prior permission from the respondents 1 to 3 before
filling up the said post. The same issue as to whether any
prior permission is required before filling up the post in a
sanctioned vacancy was considered by a learned Single
Judge of this Court in W.P.No.4960 and 14450 of 1997 dated
10.07.2007 (cited supra) and the learned single Judge has
held that once the appointment of the person in a sanctioned
post is made in accordance with law no prior permission
from the Directorate of Collegiate Education is required. The
said order of the learned Single Judge was appealed against
in W.A.No.92 and 93 of 2008 and the Hon'ble Division Bench
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W.P(MD)No.18504 of 2019
dismissed the Writ Appeals on 06.01.2010 by observing as
follows at paragraphs 3 and 4:-
"3.The learned single Judge has dealt with both the
above said Writ Petitions together and by following the decision
of this Court rendered in W.P.No.28396, dated 29.03.2006, the
learned Judge has categorically held that once appointment of a
person in a sanctioned post is made in accordance with law, no
prior permission from the Director or Collegiate Education is
required. While holding so, the learned Judge has quashed the
impugned proceedings, dated 28.02.1997 and directed the
appellants to approve the writ petitioner's (C.Karunakaran)
appointment from 2.7.1990 with all consequential service
benefits.
4.In view of the such a categoric conclusion of the
learned single Judge which was arrived by him by following the
earlier decision of this Court rendered in W.P.No.28396, dated
29.03.2006, we do not find any scope to interfere with the said
order, except to confirm the same."
(ii) 2013 (5) LW 514 [P.Ravichandran Vs. State of Tamil Nadu,
Rep. By Secretary to Government, Department of Higher Education],
wherein this Court has held as follows:-
“20. In the light of the above findings as well as the
decisions, we conclude this Judgment in the following manner:
(1) There is no requirement under the Tamil Nadu
Private Colleges (Regulation) Act, 1976 and Tamil Nadu
Private Colleges (Regulation) Rules, 1976, to seek prior
permission to fill up any vacant post in an aided college,
which has already been sanctioned for the academic year by
the Director of Collegiate Education under Rule 11(1) of the
Rules.
(2) If the appointment made by the College Committee
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W.P(MD)No.18504 of 2019
in the sanctioned vacant post is in violation of any of the
statutory provision, it is open to the Regional Joint Director of
Collegiate Education to deny grant-in-aid to the said person
appointed in the vacant post.
(3) The teaching staff appointed must be fully qualified,
whose qualification is approved by the University to which the
college is affiliated. Insofar as the non-teaching staff are
concerned, the candidate must possess the qualification
prescribed by the Government.
(4) The College Committee while filling up the vacant
post, should follow the procedures stated in Rule 11(1A) to
11(4)(ii).
(5) If there is no rival candidate for any post, the
appointment is bound to be approved for the purpose of
payment of pay and allowances, by the Regional Joint Director
of Collegiate Education.
The writ appeal is disposed of with the above directions. No
costs.”
4. The learned Government Advocate appearing for the
respondents submitted that the petitioner has sought prior permission to
fill up the non-teaching posts. The second respondent has not passed any
order. When there is no prior permission to fill up the posts, the
petitioner has appointed 9 non-teaching staff without prior permission of
the authorities. In view of the same, the petitioner is not entitled for
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W.P(MD)No.18504 of 2019
approval and prayed for dismissal of this Writ Petition.
5. Heard the learned counsel appearing for the petitioner, 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 the
petitioner college is a Private Minority Aided college. 9 vacancies arose
against the sanctioned non-teaching posts due to retirement / promotion
of previous incumbents. Even though, it is not necessary to obtain prior
permission to fill up the said sanctioned vacancy, the petitioner sought
for prior permission from the second respondent. The second respondent
has not passed any order. Therefore, due to the need of the college for
non-teaching staff, the petitioner appointed the following persons:
S.No. NAME POST DATE OF
APPOINTMENT
1 A.Ameer Typist 25.04.2019
Masthan
Bathusha
2 S.Mohamed Store Keeper 25.04.2019
Froskhan
3 A.Ameenal Laboratory 25.04.2019
Assistant
4 M.Kadar Record Clerk 25.04.2019
Hussian
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W.P(MD)No.18504 of 2019
5 S.Fathimuthu Record Clerk 25.04.2019
Joharah
6 S.Jaffer Ali Office Assistant 25.04.2019
7 T.K.Asan Office Assistant 25.04.2019
Mydeen
8 M.Kadar Office Assistant 25.04.2019
Mohideen
9 S.Fathima Safrin Office Assistant 25.04.2019
After such appointments, the petitioner submitted proposal for approval
of said appointment to the third respondent. But, the third respondent
has not passed any order on the proposal submitted for approval of
appointment of 9 non-teaching staff. According to the learned counsel
for the petitioner, on verification, the petitioner was informed in the
office of the third respondent that proposal for approval is kept pending,
as second respondent has not granted prior permission for the
appointments of non-teaching staff. The two judgments relied on by the
learned counsel for the petitioner referred to above, makes it clear that no
prior permission is necessary for appointment made in a sanctioned
vacancy by the Private Aided Minority college.
7. In view of the above judgments, the third respondent is directed
to consider the proposal sent by the petitioner without insisting on prior
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W.P(MD)No.18504 of 2019
permission for such appointments and approve the appointments of the
persons appointed, if they are otherwise qualified to be appointed in the
said posts, within a period of four weeks from the date of receipt of a
copy of this order.
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
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.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.18504 of 2019
V.M.VELUMANI,J.
Vsm
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,
18, Tiruchendur Road,
Murugan Kurichy, Tirunelveli – 627 002.
W.P(MD)No.18504 of 2019
and W.M.P.(MD)No.14907 of 2019
26.07.2021
https://www.mhc.tn.gov.in/judis/
