B. Parthasarathy vs The Government Of Tamil Nadu
2021 Latest Caselaw 22058 Mad

                                                                              W.P(MD) No.7798 of 2013



                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                         Reserved on         : 21.12.2021

                                         Pronounced on       :   12.01.2022

                                                    CORAM:

                                  THE HONOURABLE MRS.JUSTICE S. SRIMATHY

                                            W.P(MD) No.7798 of 2013


                    B. Parthasarathy                                                   :Petitioner

                                                    ..vs..


                    1.The Government of Tamil Nadu,
                    Rep. By its Principal Secretary,
                    Department of Higher Education,
                    Fort. St. George, Chennai.

                    2. The Director of Collegiate Education,
                    College Road, Nungambakkam,
                    Chennai – 600 006.

                    3.The Joint Director of Collegiate Education,
                    Madurai Region,
                    Madurai.

                    4.Madurai Kamaraj University,
                    rep. By its Registrar,
                    Palkalai Nagar, Madurai
                    (R4 is impleaded vide Court order dated 09.11.2021
                    in WMP(MD).No.12156 of 2012 in
                    WP(MD).No.7798/2013)                               : Respondents


                   1/11
https://www.mhc.tn.gov.in/judis
                                                                               W.P(MD) No.7798 of 2013




                    PRAYER: Writ Petition filed under Article 226 of the Constitution of to
                    issue a Writ of Certiorarified Mandamus calling for the records pertaining
                    to the impugned order passed by the 1st respondent in G.O(2D).No.38,
                    Higher Education (E2) Department, dated 03.09.2012, quash the same in
                    so far as the petitioner is concerned and direct the first respondent to fix
                    the pay scale of the petitioner at Rs.16,400-22,400/- from 29.04.1998 and
                    disburse all attendant benefits from 29.04.1998.




                                  For Petitioner        : Mr. M. Saravanan

                                  For R1 to R2            : Mr. D. Sachi kumar
                                                          Additional Government Pleader

                                  For R4                  : Mr. D. Ragatheesh Kumar
                                                            for M/s. Isaac Chambers


                                                    ORDER

The Writ Petition is filed to quash the G.O.(2D).No.38,

Higher Education (E2) Department, dated 03.09.2012 and directed the first

respondent to fix the Scale of Pay of the petitioner at Rs.16,400-22,400/-

and disburse the all attendant benefits from 29.04.1998.

https://www.mhc.tn.gov.in/judis W.P(MD) No.7798 of 2013

2. The petitioner joined as Assistant Professor on 03.07.1970

and subsequently, migrated to another college on 29.04.1998. As per the

Government of India, the revised scale of pay is applicable to the College

and University teachers with effect from 01.01.1996 and the revised scale

of pay are also implemented by the State Governments as well. The first

respondent Government adopting the pay scales of College teachers and

staffs as accepted by the Government of India but made a deviation with

respect of pay scales of Principals of Arts and Science Colleges alone.

Instead of fixing the same scale of pay, the first respondent has created two

separate grades for Principals on the basis of the students strength and Post

Graduate courses vide Annexure II Clause 2 of G.O. Ms. No. 111, dated

24.03.1999. The same was challenged by the petitioners in W.P. (MD). No.

19429 of 2000 and this Court vide order dated 14.12.2009 directed the

petitioners to submit a representation to the first respondent and in turn the

first respondent pass orders within a period of three months as per the

directions in W.P. (MD). No. 23775 of 2001. The petitioner submitted a

representation, but the first respondent has passed the impugned G.O.

Aggrieved over, the present Writ Petition is filed.

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3. The second respondent has filed a detailed counter that the

Grade -I and Grade II Categories were created based on the students

strength and number of PG Courses. Initially, when the Professor gets

promoted to Grade -II, he should have experience of Administrative work

in the Principal Cadre after the fullest satisfaction of the Head of the

Department and if the candidate is possessing 15 years of teaching

experience along with other criteria for the promotion, the individual shall

be included in the promotion panel. The Grade II, Principal would be

posted in colleges smaller than Grade – I Colleges considering the

student's strength as well as the courses offered. So there is no violation of

Article 14 of the Constitution of India.

4. Heard the learned counsel appearing on either side and

perused the materials available on record.

5. The submission of the petitioner is that the issue is

considered by this Court in W.P. No. 23775 of 2001 vide order dated

27.06.2003. In the said order, this Court has held in paragraph Nos.8 and 9

as follows:

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“8. So far as G.O.Ms.No.111, dated 24.03.1999 is concerned, it is apparent that the qualifications and pay scale prescribed by the UGC have been accepted. The Explanation is paragraph 2 of Annexure – II, does not lay down that in aided colleges, Principal of Professors Grade cannot be appointed unless a particular students strength is increased unless two P.G. Courses is available in such college. The explanation only refers to the existing practice relating to Government Colleges and there is no reference to any private aided college. The U.G.C scale of pay which has been accepted by the Government is based on qualifications and experience. There is no requirement of any particular students strength or availability of any particular type of P.G. Course for obtaining the U.G.C scale of pay. The explanation only refers to the practice in Government Colleges, which is in vogue since 1989, will continue in Government Colleges. In other words, it would only mean that the Government should appoint Principal in Professors Grade to Colleges having two P.G Courses and students strength of not less than 1000 and Principals in Readers Grade should be posted to other colleges. This explanation is meant for the guidance of the Government in the matter relating to the posting of Principal in Government Colleges only.

9. Even assuming that the explanation is applicable to private aided Colleges and G.O.No.1785 is still applicable, there is no logic in the stand of the respondents to the effect that only approved post graduate courses and students in approved subjects shall be considered. If the College offers further Post Graduate courses which were recognized by the University, existence of such P.G. Courses should also be considered for the purpose of applying G.O.Ms.No.1785 of 1988. Similarly, there is no reason to exclude the

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students in other courses though teachers in other courses though teachers in such other courses may not be receiving aid from the Government.”

6. it is submitted that the respondents have preferred Writ

Appeal and this Court has confirmed the order passed by the learned

Single Judge, however the order passed in writ appeal was not produced by

the parties. The contention of the petitioner is the said Judgment is

squarely applicable to the petitioner as well. On perusing the order passed

in the above writ petition, it is seen that the qualification prescribed for

Grade I and Grade II are similar and the Hon'ble Court has held there

cannot be discrimination for the said two categories. Moreover, the said

G.O. is applicable to the Government colleges and this condition is not

applicable to the private aided colleges. This Court is of the considered

opinion that there cannot be discrimination from Grade I and Grade II post.

7. However, the Judgment has not considered the Government

has power to impose conditions if grant-in-aid is granted. The Government

has imposed the said condition to increase the students strength in the

college. The private institutions were allowed to start in order to impart

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education wherever there are no government institutions and the

government had come forward to pay grant-in-aid. The concept of grant

was initiated to give a support to the institutions. In earlier period the

numbers of institutions in an area were taken, then for each institution a

percentage is fixed and but now 100% support is granted. The support is

only through “grant” and the same is not a right. However now the private

institutions are demanding the grant-in-aid as a right. Therefore, while

granting 100% grant-in-aid then the government has every right to impose

condition that the grant of so much amount would be disbursed if the

students strength is so much and if less students strength is there then less

amount would be disbursed. The balance amount the institution ought to

manage and pay on par with the UGC Regulations. The issue of grant-in-

aid is considered by the Hon'ble Supreme Court in the State of Bihar v.

Sachindra Narayan, [(2019) 3 SCC 803[, the Hon'ble Supreme Court took

note of the discretionary nature of a grant and observed as under:-

“The release of grant is in discretion of the grantor and cannot be forced by the grantee.”

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While upholding Section 14-A of the Act, the Hon'ble Division Bench of

this Court in Maria Grace Rural Middle School vs. The Government of

Tamil Nadu [(2007) 2 MLJ 497], has also held that grant-in-aid is neither

fundamental right nor a constitutional right. Therefore, once it is held that

grant-in-aid is the not a fundamental right, obviously no mandamus would

lie to compel the Government to grant such aid. Therefore this Court is of

the considered opinion that grant-in-aid is not automatic and it is the dis-

cretionary power of the Government. The Government after taking into the

financial affordability has power to fix certain conditions, since the Gov-

ernment is dealing with the public money and Government has also re-

sponsibility to deal with the finance with due diligent. Therefore, this

Court deems it fit to remit the case to the Government and the Government

after taking all the necessary facts and circumstances into consideration

and especially the financial affordability of the Government shall be taken

into consideration and pass orders. If still the Government wants to

segregate the said two post the Government shall pass fresh Government

order after taking into consideration of the grant-in-aid also.

8. With the above direction, the Writ Petition is disposed of.

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No costs.

12 .01.2022

Index:Yes/No Internet:Yes/No trp

To

1. The Principal Secretary, The Government of Tamil Nadu, Department of Higher Education, Fort. St. George, Chennai.

2. The Director of Collegiate Education, College Road, Nungambakkam, Chennai – 600 006.

3.The Joint Director of Collegiate Education, Madurai Region, Madurai.

4. The Registrar, Madurai Kamaraj University, Palkalai Nagar, Madurai

https://www.mhc.tn.gov.in/judis W.P(MD) No.7798 of 2013

S. SRIMATHY, J.,

trp

https://www.mhc.tn.gov.in/judis W.P(MD) No.7798 of 2013

Pre Delivery Order made in W.P(MD) No.7798 of 2013

12.01.2022

https://www.mhc.tn.gov.in/judis