Madras High Court
The Secretary vs The State Of Tamil Nadu on 30 June, 2022
WP(MD)No.4636 & 4640 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD)Nos.4636 & 4640 of 2021
and W.M.P.(MD)Nos.3747 & 3753 of 2021
The Secretary,
Fatima College (Autonomous),
Mary Land, Madurai – 625 018,
Madurai District. ... Petitioner in
both W.Ps.
/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,
Palam Station Road,
Madurai – 625 002. ... Respondents in
both W.Ps.
Prayer in W.P.(MD)No.4636/2021: Writ Petition filed under Article 226 of the
Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for
the records relating to the impugned proceedings issued by the third respondent
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WP(MD)No.4636 & 4640 of 2021
Joint Director in Oo.Mu.No.9527/E3/2020, dated 05.01.2021, quash the same,
and further direct the respondents herein to approve forthwith the appointment of
Dr.Sr.Bindu Antony as Assistant Professor in the Department of Commerce in the
petitioner's college and disburse the grant-in-aid towards her salaries and
allowances w.e.f. 16.08.2016.
Prayer in W.P.(MD)No.4640/2021: Writ Petition filed under Article 226 of the
Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for
the records relating to the impugned proceedings issued by the third respondent
Joint Director in Oo.Mu.No.9528/E3/2020, dated 05.01.2021, quash the same,
and further direct the respondents herein to approve forthwith the appointment of
A.Sarpiya Rani as Assistant Professor in French in the petitioner's college and
disburse the grant-in-aid towards her salaries and allowances w.e.f. 13.02.2017.
For Petitioner : Ms.A.Amala
(In both W.Ps)
For Respondents : Mr.V.Nirmal Kumar,
(In both W.Ps) Government Advocate.
COMMON ORDER
The power of the Educational Authorities of the State Government to
interfere in the selection process for appointment of the Assistant Professors in a
private Minority College, is the issue involved in the present writ petitions.
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Through the orders impugned in the present writ petitions, the authorities have
made an attempt to interfere with the selection process of a Minority Institution.
2. When the 'University Grants Commission Regulations, 2000' (hereinafter
referred to as UCG Regulations, 2000') were put under challenge before an
Hon'ble Division Bench of this Court in the case of The Forum of Minority
Institutions (FMI) and Associations Vs. The State of Tamil Nadu, Rep. by the
Joint Director of Collegiate Education reported in 2011 (1) CTC 162, it was
declared therein that the UCG Regulations, 2000, for constitution of a Selection
Committee, were not applicable to Minority Institutions. While holding so, the
Hon'ble Division Bench had also dealt with all the Clauses in the UCG
Regulations, 2000, including Clause 5.1.5, which provides for the constitution of
a Selection Committee in a Minority Educational Institution.
3. The UCG Regulations, 2010, has replicated the aforesaid Clause with
regard to the constitution of a Selection Committee in Clause 5.1.4, which is
verbatim the same as that of the UCG Regulations, 2000.
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4. When the provision for a Selection Committee under the 2000
Regulations was made inapplicable to Minority Institutions in FMI's case (supra),
an identical provision in the 2010 Regulations cannot be given a new
interpretation, but rather should be construed to have excluded Minority
Institutions from forming Selection Committee. In this background, the
Educational Authorities will not have any right to question the selection process
or the qualification of the candidates, who were selected therein.
5. In the instant cases, two Assistant Professors viz., Dr.Sr.Bindhu Antony
and A.Sarpiya Rani were appointed as Assistant Professors in Commerce and
French on 16.08.2016 and 13.02.2017 respectively. On the proposal dated
12.06.2018, submitted by the College Management to the third respondent herein,
rejection orders, both dated 05.01.2021, came to be passed, predominantly
rejecting the proposal on the grounds that no Selection Committee was
constituted; that no subject experts had participated in the selection process; and
that the notification for selection was not published in two newspapers. This
apart, the third respondent had also questioned the qualification of the selected
candidates, stating that the degrees obtained by them are not supported by an
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WP(MD)No.4636 & 4640 of 2021
equivalence certificate and that their prior permission for selection was not
obtained.
6. While the learned counsel for the petitioner submitted that the
Educational Authorities under the State Government will have no powers to
interfere with the selection process of a Minority Institution, the learned
Additional Government Pleader placed reliance on the UGC Regulations, 2010
and submitted that since the Regulations covers a Minority Institution also, there
is no infirmity in the impugned orders.
7. When the Hon'ble Division Bench in Forum of Minority Institutions
and Associations's case (cited supra) dealt with all these aspects, the declaration
that the UGC Regulations, 2000, will not applicable to the Minority Colleges was
made based with the following justification:
“4. It is the case of the petitioner that filling up of posts in the
member institutions has been sanctioned by the State of Tamil Nadu
and in pursuance thereof, member institutions have commenced the
process of filling up the vacancies. It is the case of the petitioner that
in some cases, vacancies have been filled by the respective institutions
and approval of qualifications has been sought for from respective
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WP(MD)No.4636 & 4640 of 2021
Universities. Some of the universities have passed orders rejecting
approval of qualifications of appointees on the ground that the
Selection Committee was not constituted in accordance with the UGC
Regulations, 2000 whereas some of the universities have failed to
approve recommendations.
......
......
7. .......
(i) .........
(ii) the constitution of the Selection Committee under the UGC
Regulations, 2000 regarding minimum qualification for appointment
and career advancement of teachers in Universities and Colleges with
a majority of outsiders nominated by the Respondent Universities
interferes with the rights of the members of the petitioner to
administer their institutions;
(iii) & (iv)
(v) that the University Grants Commission, New Delhi, has no
power to make Regulations in respect of Selection Committees for
appointment of teaching staff in the private Colleges, therefore,
Notification is void and of no effect.
............
............
59. Thus, a reading of these judgments would show that
right of minority institutions to select candidates of their own choice
by regulating their process of selection is upheld by the Hon'ble
Supreme Court.
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WP(MD)No.4636 & 4640 of 2021
60. In view of the settled proposition of law, the contention
of learned counsel for the University Grants Commission that by way
of amendment of regulations, independence has been given to the
minority institutions to select their own people without outside
interference, as the right of appointment of teachers out of qualified
teachers is to be left to the minority institutions alone cannot be
accepted, as the process of selection of teachers cannot regulated, as
it would amount to interference in administration of minority
institutions.
61. The contention of the learned counsel for the
respondents that regulations are in public interest to maintain
standard of education also cannot be accepted as the appointment of
qualified teachers as per the qualification prescribed by the
University Grants Commission by the minority institutions cannot be
said to violate the public interest, nor it can be said that the
educational standard would not be maintained.
62. The right of minority institutions under Section 30 is
absolute right being basis structure of the Constitution and therefore,
any regulation interfering with the right of administration would not
be applicable to the minority institutions, being violative of Article
30(1) of the Constitution.
63. The contention that right to administer does not include
right to maladministration also cannot be accepted as the minority
institutions would be bound by qualification laid down for
appointment of teachers and also would be bound to follow other
statutory laws necessary for running their institutions to maintain
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WP(MD)No.4636 & 4640 of 2021
educational standard. The only restriction placed is with regard to the
right to interfere in the selection of staff of the minority institutions.
64. Once the right of appointment of teachers is taken to be
the right of administration, which is not even disputed by the
respondents, no other conclusion than the one that the impugned
regulations would not apply to minority institutions can be arrived at.
.............
For the reasons stated, the writ petitions are allowed, and
declaration is issued, that the impugned regulations for constitution of
Selection Committee shall not be applicable to the Minority
Institutions. Consequently, Writ in nature of Mandamus is issued
directing the respondents to approve the selection made by the
minority institutions without reference to Clause 3 of Annexure to
UGC Regulations 2000, subject to the selected candidates fulfilling
other qualifications, experience etc. No costs. Consequently, all the
connected miscellaneous petitions are closed.”
8. The aforesaid extract is self explanatory. Thus, in view of the
declaration made by the Hon'ble Division Bench, the Educational Authorities of
the State Government will have no powers absolutely to interfere with the
selection process, which powers are solely vested with the College Management.
Thus, the reasons assigned by the third respondent in the impugned orders that a
Selection Committee was not constituted and that there were no subject experts
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WP(MD)No.4636 & 4640 of 2021
during the process of selection and that the notification for selection was not
published in two newspapers will tantamount to interfering with the selection
process and thus cannot be sustained.
9. Insofar as the reason that the College Management had not sought for
prior permission of the authorities for selection are concerned, an Hon'ble
Division Bench in the case of P.Ravichandran Vs. State of Tamil Nadu, Rep. by
Secretary to Government, Department of Higher Education, Chennai and
others reported in (2013) 7 MLJ 641, had dealt with this aspect as to whether
prior permission is mandatory to fill up the vacancies arising in a Minority
Institution?
10. In paragraph 20 of the said order, such a requirement was held to be not
necessary for a Minority Institution, in the following manner:
“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
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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 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.”
11. In view of the aforesaid decision, the claim of the respondents that their
permission was not obtained before appointing these two teachers cannot be
legally unsustainable.
12. Likewise, in the aforesaid decision in P. Ravichandran's case (cited
supra), the Hon'ble Division Bench had also observed that the qualification of the
teaching staff, to be appointed, requires to be approved only by the University, to
which the college is affiliated. In the instant case, the last reason assigned by the
respondents for rejection of the proposal, is that the qualification of these
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candidates is not supported by an equivalence certificate issued by the competent
authority. This reasoning is opposed to the observations made by the Hon'ble
Division Bench in P.Ravichandran's case (cited supra). While the concerned
University is the competent authority to approve the qualifications of the teaching
staff, the State Governmental Educational Authorities will have no jurisdiction to
scrutinize or question such educational qualifications.
13. This apart, another reason assigned in the impugned orders is that,
Form-7A, which is an form of agreement between the college and the teacher, has
not been enclosed along with the proposal.
14. Section 11 of the Tamil Nadu Private Colleges (Regulation) Act, 1976,
provides for the constitution of a College Committee, which provision
specifically excludes a minority college from its purview. Rule 11 of the Tamil
Nadu Private Colleges (Regulation) Rules, 1976 mandates for an agreement
between the college and the teachers in Form-7A. In view of the exclusion of a
minority college from the purview of Section 11 the Tamil Nadu Private Colleges
(Regulation) Act, 1976, Rule 11 will also be inapplicable insofar as Minority
Institutions are concerned. In other words, Rule 11 of the Tamil Nadu Private
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WP(MD)No.4636 & 4640 of 2021
Colleges (Regulation) Rules, 1976, which mandates an agreement in the
Form-7A, would be applicable to colleges, other than the Minority Colleges and
therefore, the third respondent's action in rejecting the petitioner's proposal on
this ground also cannot be sustained.
15. For all the forgoing reasons, the impugned orders passed by the third
respondent, both dated 05.01.2021, are set aside. Subsequently, there shall be a
direction to the third respondent herein to forthwith pass orders approving the
appointment of Dr.Sr.Bindu Antony, as Assistant Professor in Commerce with
effect from 16.08.2016 and Ms.A.Sarpiya Rani, as Assistant Professor in French
with effect from 13.02.2017. Such orders of approval shall be passed within a
period of six (6) weeks from the date of receipt of a copy of this order.
16. These writ petitions stands allowed. No costs. Consequently,
connected miscellaneous petitions are closed.
vsm 30.06.2022
Index : Yes
Internet : Yes
https://www.mhc.tn.gov.in/judis
WP(MD)No.4636 & 4640 of 2021
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,
Palam Station Road,
Madurai – 625 002.
https://www.mhc.tn.gov.in/judis
WP(MD)No.4636 & 4640 of 2021
M.S.RAMESH, J.
vsm
Order made in
W.P.(MD)Nos.4636 & 4640 of 2021
and W.M.P.(MD)Nos.3747 & 3753 of 2021
Dated:
30.06.2022
https://www.mhc.tn.gov.in/judis
