Madras High Court
P.Augustius Robince vs The Director Of Collegiate ... on 9 June, 2023
WA(MD)No.512 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.06.2023
CORAM
The Honourable Mr. Justice R.SURESH KUMAR
and
The Honourable Mr. Justice K.K.RAMAKRISHNAN
WA .(MD)No.512 of 2013
P.Augustius Robince .. Appellant
Vs.
1.The Director of Collegiate Education
Chennai 600 006.
2.The Joint Director Collegiate Education
Tirunelveli Region,
Tirunelveli.
3.The Bishop
Church of South India,
Diocese of Tirunelveli
Diocesan Office,
Palayamkottai 627 002.
Tirunelveli District
4.The Secretary
St. John's college,
Palayamkottai,
Tirunelveli District .. Respondents
Appeal is filed under Clause 15 of Letters Patent Act against the order
Page 1 of 20
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WA(MD)No.512 of 2013
dated 25.04.2012 passed by this Court in WP(MD) No.3903 of 2008.
For Appellant : Mr.M.Saravanan
For Respondents : Mr.A.Kannan for R1&R2
Additional Government
Pleader
Mr.P.P.Alwin Balan for
R3&R4
JUDGMENT
[Judgment of the Court was delivered by R.SURESH KUMAR, J.]
This intra court appeal has been directed against the order passed by
the learned Judge dated 25.04.2012 in WP(MD) No.3903 of 2008.
2. The appellant is a Post Graduate in Zoology and also possess
M.Phil degree. With that qualification, he was appointed as a Lecturer in
Zoology on 22.03.2000 in the leave vacancy at the 4th respondent college.
3. Thereafter one Dr.D.Jones Nelson, who was the Head of the
Department, in Zoology, retired from service. Therefore, one post of
Lecturer in Zoology has become vacant in the college. In order to fill up the
same, applications were called for. The appellant also applied. Considering
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his application, after conducting interview, the 4th respondent college
management has appointed him as Lecturer in Zoology on 05.12.2001, since
then, he has been continuously working in that place.
4. In this regard, the appointment order issued by the 4 th respondent
College dated 05.12.2001 states the following:
“I am pleased to inform you that you are selected and
temporarily appointed as Lecturer in Zoology, in this college
with effect from 14.12.2001 in a post to be sanctioned by the
Director of Collegiate Education and in the post vacated by
Dr.D.Jones Nelson, Head of the Department of Zoology on his
retirement, in the scale of pay Rs.8000-275-13500 with usual
allowances permissible under the rules.
Your appointment is subject to the approval of the
University and the Department of Education. You will be paid
the salary as and when the amount is received from the
department of education.
You may be transferred to any one of the Colleges
managed by the Tirunelveli Diocesan Trust Association. You
will be subject to the rules and regulations governing the
conduct and work of the teaching staff of the college.
You are asked to join duty on the forenoon of
14.12.2001.”
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WA(MD)No.512 of 2013
5. With that strength, the appellant, since had been continuously
working in the college, his appointment was not approved immediately and
this position was continued till 2008, where the concerned University,
namely, Manonmaniam Sundaranar University has given approval of the
qualification of the appellant only with effect from 11.08.2008.
Subsequently his appointment had been approved only with effect from
11.08.2008 by the competent authority, ie., the official respondents.
6. Therefore, for all practical purposes, the job of the appellant was
considered to be the Lecturer only with effect from 11.08.2008, but not from
05.12.2001, the date on which he was initially appointed. Therefore, the
appellant approached the writ Court by filing W.P.(MD) No.3903/2008
seeking for a writ of mandamus to approve the appointment of the
appellant/petitioner as Lecturer in the department of Zoology in the 4th
respondent college and disburse the salary and attendant benefits with effect
from 14.12.2001.
7. 14.12.2001 is the date on which initially the appellant joined in the
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WA(MD)No.512 of 2013
said post, therefore from that date, he sought for approval and consequential
disbursement of salary.
8. The learned Judge, who heard the said writ petition, had disposed
the same on 25.04.2012, where a direction was issued by the learned Judge
to the Joint Director of Collegiate Education, who stood as second
respondent in the said writ petition, to approve the appointment of the
petitioner from 11.08.2008 as Lecturer in Zoology and also to pay the
arrears pursuant to the approval within a period of eight weeks. Felt
aggrieved over the said order, as his appointment from 05.12.2001 is not
directed to be approved and consequently no salary had been directed to be
given with effect from the said date of 05.12.2001, the appellant preferred
this intra-court appeal against the said order dated 25.04.2012.
9. Heard the learned counsel for the appellant, who would submit that
the appellant though initially was appointed in the year 2000 in the leave
vacancy in the 4th respondent college subsequently on the sanctioned
vacancy, which caused due to the retirement of the Head of the department
of Zoology, he was called for interview and thereafter selected and
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WA(MD)No.512 of 2013
appointed on 05.12.2001, pursuant to which, he joined service on
14.12.2001. Therefore, from that date, approval should have been given and
based on which the salary on par with the regular Lecturer, which in fact,
has been mentioned in the very appointment order itself, should have been
paid.
10. Even though the University had given approval of qualification
only from 11.08.2008, the fact remains that such a qualification had already
been acquired by the appellant and therefore, at the time of joining initially
in the institute, since the appellant was holding the qualification,
subsequent approval in a fictitious date cannot be taken into account.
Therefore, in this context, the approach of the learned Judge of the writ
Court by giving direction to the 2nd respondent therein to approve the
appointment of the appellant only with effect from 11.08.2008, ie., the date
on which or with effect from which the qualification of the appellant has
been approved by the University and not from 05.12.2001, the date on
which he originally joined and had been continuously working, needs
interference.
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WA(MD)No.512 of 2013
11. Therefore, the learned counsel for the appellant seeks indulgence
of this Court to modify the order impugned passed by the writ Court.
12. Per contra, the learned counsel for the respondents 3 and 4 would
submit that in fact in the year 2000, the appellant was engaged only in the
leave vacancy and even in 2001, since there has been a ban for making
appointment on permanent basis, the management of the college could not
make any permanent appointment, decided to make temporary appointment
on a consolidated pay and that is how the appellant was appointed on
05.12.2001 only on temporary basis with consolidated pay.
13. In this context, the learned counsel for the respondents 3 and 4
also contended that this position has been accepted by the appellant himself
at the time of joining on 14.12.2001, where he has stated the following:-
“ehd; J}a Nahthd; fy;Y}hpapy; 14.12.2001 ,d;W
tpyq;fpay; Jiwapy; tphpTiuahsuhfg; gzpapy;
NrUfpNwd;. ,e;jg; gzpaplk; fy;Y}hpf fy;tp ,af;Feh;>
nrd;id mth;fshy; vd;W xg;gspf;fg;gLfpwNjh (sanction)
md;W Kjy; vdJ Cjpaj;ij ngw;Wfnfhs;Ntd;. ehd;
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WA(MD)No.512 of 2013
eph;thfj;ij vjph;j;J ePjpkd;w eltbf;ifNah kw;Wk;
ve;jtpkhd eltbf;ifapYk; <Lgl khl;Nld; vd;W ,jd;
%yk; cWjpaspf;fpNwd;.”
14. Therefore, it was the understanding between the college
management and the appellant that the appointment that has been made on
05.12.2001 was purely temporary, that too, on consolidated pay and
thereafter, whenever such appointment is approved by the competent
authority, the teaching grant would be paid by the Government only from
that date. Therefore, after getting such approval only, the pay would be paid
on par with the post, for which, he was appointed and only with that
understanding he worked up to 2008.
15. However, till such time, the qualification acquired by the
appellant since was not approved by the University concerned, the
appointment could not be approved by the competent authority and
therefore, only after getting such an approval of qualification with effect
from 11.08.2008, such approval for which the appellant, since would
become eligible, that was given. Therefore, if at all he is entitled to get the
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WA(MD)No.512 of 2013
salary that would be only from 11.08.2008 and not from 05.12.2001.
16. Moreover in the very averments made in the affidavit before the
writ Court, the appellant has admitted that he was paid only a consolidated
pay of Rs.3,000/- per month. When that being the position, at no stretch of
imagination, he can turn around and say now that from 2001 onwards, he is
entitled to get full salary unmindful of approval in the year 2008, because of
the approval granted by the University concerned.
17. Therefore, the learned counsel for the respondents 3 and 4 would
submit that the appellant is not entitled for full salary except the
consolidated pay, which he had already received for the period from 2001 to
2008. This has been taken into account by the learned Judge, who made a
right approach in this aspect and accordingly given direction to the
competent authority to approve the appointment only with effect from
11.08.2008, the date on which, the qualification is approved by the
University and not prior to that. This of the view taken by the learned Judge
in the order impugned is sustainable. Hence, he wants to sustain the said
order by dismissing the writ appeal.
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18. Similar arguments were advanced by the learned Additional
Government Pleader for the official respondents, who would also submit
that until the qualification of teaching faculty is approved by the concerned
University, the question of approving such appointment does not arise. This
appointment is rightly approved from 11.08.2008 that was taken into
account by the learned Judge, who gave a direction to approve from that
date alone, that in fact was complied with by the competent authority.
Therefore, from 11.08.2008 only the appellant is entitled to get the salary
and that salary also since has been paid, no further grievance can be
espoused by the appellant and therefore, this writ appeal is deserves to be
rejected, as devoid of merits. Hence, the learned Additional Government
Pleader seeks dismissal of this writ appeal.
19. We have heard the learned counsel for the appellant, learned
counsel for the respondents 3 and 4 and the learned Additional Government
Pleader for the official respondents and perused the materials available on
record.
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WA(MD)No.512 of 2013
20. Insofar as the approval that has been given with effect from
11.08.2008, for which, direction had already been given by the learned
Judge through the impugned order since had been complied with, there
could be no quarrel from 11.08.2008 till date.
21. The only grey area is between 05.12.2001 and 11.08.2008.
22. During this period, since the appellant had been working as
Lecturer in the Department of Zoology, which is a permanent vacancy,
where he was appointed, whether he is entitled to get the full salary and
emoluments is the question.
23. In this context, if we look at the appointment order given by the
management dated 05.12.2001, the language used therein is that he has been
appointed temporarily as Lecturer in Zoology with effect from 14.12.2001
in a post to be sanctioned by the Directorate of Collegiate Education and in
the post vacated by one Dr.D.Jones Nelson, Head of the Department of
Zoology on his retirement in the scale of pay of Rs.8000-275-13500 with
usual allowances permissible under the Rules.
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WA(MD)No.512 of 2013
24. Further the appointment order shows that the appointment is
subject to the approval of the University and the department of education,
he will be paid salary as and when the amount is released from the
department of education.
25. From the reading of the said appointment order, pursuant to which
he joined on 14.12.2001, where he has given an undertaking also that he
would receive the salary only after it is sanctioned by the Government.
26. Therefore, the understanding between the appellant and the 3rd
and 4th respondents college is that he was selected and appointed in a
permanent vacancy caused by the present incumbent one Dr.D.Jones Nelson
and in that permanent vacancy since he has been selected and appointed, the
salary would not be given by the management and it would be given only by
the Government, but that will take effect only from approval of such
appointment.
27. That means once the order of approval is given, then only the
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WA(MD)No.512 of 2013
salary can be claimed by the management and that would be paid to the
appellant.
28. If that being the understanding between the two, as no other
communication suggesting anything differently had been filed before this
Court, the appointment that has been made in respect of the appellant by the
college or its management is on permanent vacancy not as a leave or
temporary vacancy.
29. In this context, the stand taken by the college and its management
has been made specifically and unambiguously in Paragraph No.4 of the
counter affidavit, which reads thus:
“4.I respectfully submit that the writ petitioner was
temporarily appointed as Lecturer in the Zoology Department,
with effect from 22.03.2000, in the leave vacancy caused by
the deputation of Mr.B.Jawahar Samual, Lecturer in Zoology
to undergo his Ph.D course under the UGC IX plan FTP
scheme. Thereafter, by order dated 05.12.2001 the writ
petitioner was appointed as Lecturer in the Zoology
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Department in a permanent vacancy caused due to the
retirement of Dr.D.Jones Nelson, the head of the department of
Zoology. The petitioner joined the services on 14.12.2001 and
he has been working in our college.”
30. The averment made by the college in the said counter is that he
was appointed temporarily as Lecturer in Zoology department with effect
from 22.03.2000 in the leave vacancy caused by one B.Jawahar Samuel,
Lecturer in Zoology to undergo his Ph.D., degree course. Thereafter, by
order dated 05.12.2001, the writ petitioner was appointed as Lecturer in the
Zoology department in a permanent vacancy caused due to the retirement of
one Dr.Jones Nelson, head of the Department.
31. Therefore, initially the appellant was appointed in a leave
vacancy, which caused by one Jawahar Samuel, who wanted to pursue his
Ph.D., programme and that is how the leave vacancy had arisen wherein, he
was appointed on temporary basis.
32. However, subsequently one Jones Nelson, who was the head of
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the department of Zoology retired from service, therefore, the permanent
vacancy caused due to his retirement, wherein, the appellant has been
selected and appointed. Therefore, it has become clear that the appointment
that has been made on 05.12.2001 in favour of the appellant was a
permanent appointment in a permanent vacancy caused, which is a
sanctioned vacancy also in respect of the 3rd and 4th respondent college.
33. However, due to the disqualification or delay in approval of the
qualification acquired by the appellant, that has been made belatedly by the
university concerned only in the year 2008, that approval was given by the
competent authority only from that date, but this position having been
considered by the learned Judge in the impugned order itself, the learned
Judge has observed that insofar as the period between 2001 and 2008 is
concerned, it is for the appellant, who was the petitioner in the said writ
petition, to approach the respondent management and to claim such salary
and emoluments for the whole period between 2001 and 2008, where he
worked in the permanent vacancy and his services had been fully utilized by
the college. It is the further contention of the appellant, as he quoted in the
affidavit filed in support of the writ petition that though he was appointed
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on 05.12.2001 and had been continuously working in the permanent
vacancy, he was not paid the salary that has been mentioned in the
appointment order, instead, he was paid only a sum of Rs.3,000/- per month.
34. Merely because the college management had paid Rs.3,000/- per
month as consolidated pay, it cannot be construed that the appointment has
been made on the basis of consolidated pay. The reason being nowhere in
the appointment order, it has been mentioned that this appointment has been
made only on consolidated pay.
35. The undertaking given by the appellant at the time of joining, ie.,
on 14.12.2001 that he would get salary once it is sanctioned by the
competent authority means either the authority, who would sanction his
salary after approval or till such time, the salary equal to the same would be
paid by the management.
36. This must be the arrangement, otherwise, no teaching faculty that
too in an UG level college can be expected to serve that too in a permanent
vacancy.
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37. If that being the position, if we look at the subsequent
development, after passing the impugned order, it is brought to our notice
by the learned counsel for the appellant that he has given representation on
12.06.2013 to all the respondents both official respondents as well as 3rd and
4th respondents college.
38. In the said representation, the appellant had sought for treating his
service from 14.12.2001 till 10.09.2008 as a continuous and approved
service for which he is entitled to get salary due and the said service also be
taken into account as a continuous service for pensionary benefits.
39. Insofar as the said plea is concerned, it is a larger issue, which
was not dealt with by the learned Judge in the order impugned. Therefore,
we are refrained from making a comment to such a plea raised by the
appellant. However, his representation that has been made on 12.06.2013 to
the 3rd respondent, ie.,the Secretary, St.Johns College, Palayamkottai,
Tirunelveli District, is concerned, the said representation can be considered
by the said college in the light of the aforesaid facts and circumstances and
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accordingly, they can come out with a negotiated solution of this issue with
regard to the full salary of the appellant for the period between 2001 and
2008.
40. Apart from this issue, no other issue is available before us for
adjudication and in this context, the approach made by the learned Judge
with the said observation giving liberty to the appellant to approach the
college for the said period between 2001 and 2008 is a right approach and
therefore, absolutely there is no error in the order impugned passed by the
learned Judge.
41. In the result, this writ appeal is disposed of with the following
order:
“that the impugned order is sustained. Hence, the writ appeal fails
and therefore, it is liable to be dismissed, accordingly, dismissed. However,
the dismissal of this writ appeal would not preclude the appellant to pursue
his endeavour, which started from his representation dated 12.06.2013
addressed to the third respondent and the appellant would be entitled to
press for the same to get a early decision from the college management, as
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they are liable to settle the salary due of the appellant for the period between
14.12.2001 and 10.09.2008. The said issue shall be settled by the
respondents 3 and 4 within a period of eight weeks from the date of receipt
of a copy of the judgment.” No costs.
(R.S.K.,J.) (K.K.R.K.,J.)
09.06.2023
Index : Yes/No
Internet : Yes
RR
To
1.The Director of Collegiate Education
Chennai 600 006.
2.The Joint Director Collegiate Education
Tirunelveli Region,
Tirunelveli.
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WA(MD)No.512 of 2013
R.SURESH KUMAR,J.
and
K.K.RAMAKRISHNAN,J.
RR
WA.(MD)No.512 of 2013
09.06.2023
https://www.mhc.tn.gov.in/judis
