Madras High Court
P.Markandan vs / on 30 November, 2023
W.P.No.21908 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.11.2023
CORAM
THE HONOURABLE Ms.JUSTICE R.N.MANJULA
W.P. No.21908 of 2021
P.Markandan ... Petitioner
/vs/
1. The Director of Collegiate Education,
DPI Campus, College Road,
Chennai – 600 006.
2. The Regional Joint Director of Collegiate Education,
Vellore Region,
Vellore – 632 006.
3. The Secretary and Correspondent,
Mazharul Uloom College,
Ambur – 635 805,
Tirupattur District.
4. The Principal,
Mazharul Uloom College,
Ambur – 635 805.
5. R.Jothilakshmi
6. J.Premkumar ... Respondents
Page 1 of 10
https://www.mhc.tn.gov.in/judis
W.P.No.21908 of 2021
Writ Petition is filed under Article 226 of the Constitution of India
to issue a writ of certiorarified mandamus to call for the records pertaining
to the order dated 16.07.2020 passed by the third respondent college,
quash the same and consequently direct the third respondent to promote the
petitioner as Head of Department of Mathematics, with effect from
16.07.2020, award costs.
For Petitioner ... Mr.V.Ajoy Khose
For Respondents ... Mr.G.Nanmaran
Special Govt. Pleader for R1, R2 & R4
Mr.N.Muralikumaran
Senior Counsel
for M/s.McGan Law Firm for R3
Mr.S.Sathish for R5
No appearance for R6
ORDER
This Writ Petition has been filed to quash the records pertaining to
the order dated 16.07.2020 passed by the third respondent college and to
consequently direct the third respondent to promote the petitioner as “Head
of Department of Mathematics”, with effect from 16.07.2020, award costs.
https://www.mhc.tn.gov.in/judis
2. The petitioner claims himself as the senior most person and he is
only the eligible person to be appointed for the designation of ‘Head of
Department of Mathematics’.
3. The grievance of the petitioner is that the fifth respondent who is
junior to him was designated as ‘Head of Department of Mathematics’ in
the third respondent college. The petitioner and the sixth respondent joined
the service on the same day and in fact the sixth respondent is senior to the
petitioner. The Government has issued an order in G.O.Ms.No.1785,
Education Department dated 15.12.1988 by following certain terms and
conditions and guidelines in respect of service conditions of the college
teachers and specifically stipulate that the senior most person in the
Department of Mathematics irrespective of qualification of 'Ph.D.', should
be nominated and designated as “Senior Lecturer / Selection Grade
Lecturer/ Reader and Head of Department”. The said rule was violated and
the third respondent college has proceeded to designate the fifth
respondent who is much junior to the petitioner as “Head of Department”.
Hence the petitioner has filed this writ petition seeking to quash the orders
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of the third respondent dated 16.01.2020 and direct the respondent to
promote the petitioner to be designated as Head of Department.
4. Mr.V.Ajoy Khose, the learned counsel for the petitioner
submitted that the sixth respondent who was senior to the petitioner has
also retired and the petitioner is the only person who is qualified to be
designated as “Head of Department of Mathematics”; in fact the second
respondent had issued advice to the third respondent to consider the senior
most person to be designated as “Head of Department” and the said
direction has not been complied.
5. Mr.N.Muralikumaran, the learned Senior Counsel for the third
respondent, submitted that the third respondent educational institution
being a minority institution would come under the purview of Article 30 of
the Constitution of India and hence no rule would bind the third
respondent; so far as the third respondent is concerned, he wanted to
confer the post of “Head of Department” only upon those persons who are
more meritorious; in the opinion of the third respondent, the fifth
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respondent was seen to be more meritorious and she has been given with
the designation of Head of Department; in the Management Committee
meeting it has been unanimously resolved to appoint the fifth respondent
as the “Head of Department”; and the appointment of the fifth respondent
fall under the rules and does not suffer from any factual interference.
6. In support of his above contention, the learned Senior Counsel
relied on the following judgments of the Hon’ble Supreme Court:
i) Secy., Malankara Syrian Catholic College Vs. T.Jose and others
reported in (2007) 1 SCC 386
ii) IVY C.DA Conceicao Vs. State of Goa and others reported in
(2017) 3 SCC 619
iii) Manager, Corporate Educational Agency Vs. James Mathew
and others reported in (2017) 15 SCC 595
7. In the case of Secy., Malankara Syrian Catholic College (cited
supra) it is held as under:
“... 27. It is thus clear that the freedom to choose the person to be
appointed as Principal has always been recognised as a vital facet of the
right to adminster the educational institution. This has not been, in any way,
diluted or altered by T.M.A.Pai. Having regard to the key role played by the
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Principal in the management and administration of the educational
institution, there can be no doubt that the right to choose the Principal is an
important part of the right of administration and even if the institution is
aided, there can be no interference with the said right. The fact that the
institution is aided, there can be no interference with the said right. The fact
that the post of Principal/Headmaster is also covered by State aid will make
no difference.
28. The appellant contends that the protection extended by Article
30(1) cannot be used against a member of the teaching staff who belongs to
the same minority community. It is contended that a minority institution
cannot ignore the rights of eligible lecturers belonging to the same
community, senior to the person proposed to be selected, merely because the
institution has the right to select a Principal of its choice. But this contention
ignores the position that the right of the minority to select a Principal of its
choice is with reference to the assessment of the person’s outlook and
philosophy and ability to implement its objects. The management is entitled
to appoint the person, who according to them is most suited to head the
institution, provided he possesses the qualification prescribed for the posts.
The career advancement prospects of the teaching staff, even those belonging
to the same community, should have to yield to the right of the management
under Article 30(1) to establish and administer educational institutions.”
8. Mr.G.Nanmaran, learned Special Government Pleader, submitted
that G.O.Ms.No.1785, Education Department dated 05.12.1988, does not
relate to promotion or services and it is only with regard to the revision of
pay scales; however, in the said Government Order it has been specifically
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stated that the scheme applies to the teachers in all Colleges (Government
and Aided) in Tamil Nadu unless they specifically exercise an option in
writing to remain out of this scheme; since the third respondent college had
not opted to get any exemption from the application of the scheme or come
out of the coverage, now it cannot be claimed by the third respondent that
they are not bound by the above scheme because they are minority
institutions.
9. In the absence of any special rules to exempt the minority
institutions from following the rules of service conditions to teachers, they
cannot act on their whims even though they have discretion in the matter of
appointments. It is not the claim of the third respondent that it is an
autonomous college. The third respondent college is an aided college and it
is getting grants from the Government. In such case, the third respondent
cannot claim exclusion from the applicability of the scheme so far as it
relates to the rule for designating “Head of Department”. As far as the said
rule is concerned, irrespective of possessing a Ph.D. qualification in each
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department, the senior most Lecturers should be designated as “Head of
Department”. No other special qualification is required to choose the
“Head of Department” by considering any other extraordinary merits or
extra educational qualification.
10. The scheme explicitly mentions that it is immaterial even if the
senior of the said department does not have a Ph.D. qualification. So the
one and only basis on which the “Head of Department” has to be conferred
is the rule of seniority and nothing else. In such case the third respondent
ought not to have chosen a person who is junior to the petitioner as the
“Head of the Department of Mathematics”.
11. There is no quarrel on the point that the petitioner is senior to the
fifth respondent and hence in all fairness, he only ought to have been
designated as the “Head of Department of Mathematics”. The third
respondent had issued the impugned order in violation of the above rules
and without complying any fair procedure or reason to overlook the
petitioner from getting that leadership. Hence, I feel the impugned order is
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liable to be set aside.
12. Accordingly, this Writ Petition is allowed and the order dated
16.07.2020 passed by the third respondent is hereby quashed and the third
respondent is directed to promote the petitioner as “Head of Department of
Mathematics”, with effect from 16.07.2020. No costs.
30.11.2023
Index: Yes / No
Speaking order / Non-speaking order
bkn
To:
1. The Director of Collegiate Education,
DPI Campus, College Road,
Chennai – 600 006.
2. The Regional Joint Director of Collegiate Education,
Vellore Region,
Vellore – 632 006.
3. The Secretary and Correspondent,
Mazharul Uloom College,
Ambur – 635 805,
Tirupattur District.
4. The Principal,
Mazharul Uloom College,
Ambur – 635 805.
https://www.mhc.tn.gov.in/judis
R.N.MANJULA ,J.
bkn
30.11.2023
https://www.mhc.tn.gov.in/judis
