JUDGMENT — K.A Swami, C.J

The writ appeals are preferred against the order dated 3.9.1993 passed by the learned single Judge in WMP. Nos. 16279 to 6304 of 1993; 16806 of 1993; 17608 of 1993 and 19845 of 1993. The learned single Judge has issued the following directions:—

“The next contention of Mr. U.N.R Rao and Mrs. Nalini Chidambaram, learned Senior Counsel, is that there cannot be and stay of order of termination. It is true generally, courts do not stay any order of termination. But, there is no axiomatic principle or law that courts can never grant stay of order of termination and a Court exercising jurisdiction under Article 226 of the “Constitution of India cannot be shackled by any such principle. It has already been noticed that the order of termination is an gross violation of the provisions of Section 19(2) of the Tamil Nadu Private Colleges Regulation Act. When the writ petitioners were claiming for regularisation of their temporary services, the respondent management has issued the order of termination and thereby throwing all the 23 and odd teaching staff on the streets. Therefore, I am satisfied on the facts and circumstances of the case, that stay of the termination order should be granted. Even the balance of convenience is in favour of making the stay absolute.

In view of what I have said above, it is unnecessary for me to refer to the elaborate arguments of the counsel for the petitioners as well as the respondent and the decisions relied on by them. Even though at one state I felt that the main writ petitions filed by various parties themselves could be disposed of Mr. U.N.R Rao was not agreeable to the said course and wanted (orders) to be passed in the Writ Miscellaneous petitions.

In the result,

W.M.P Nos. 16279 to 16304 of 1993 are allowed and the interim stay granted on 4.6.1993 is made absolute.

W.M.P No. 19245 of 1993 in W.M.P No. 16302 of 1993 in W.P No. 10685 of 1993 is dismissed.

W.M.P No. 17608 of 1993 in W.P No. 11557 of 1993 is dismissed and the interim stay granted on 22.6.1993 is vacated.

W.M.P No. 16806 of 1993 in W.P No. 10999 of 1993 is allowed and the interim stay granted on 17.6.1993 is made absolute.

Having regard to the scope of W.P Nos. 10663 to 10687, 10999 and 11557 of 1993 and 21082 of 1992, they are directed to be listed for final hearing before the concerned Hon'ble Judge on 15.9.1993”.

2. When these appeals came up for hearing, we considered it necessary to hear the writ petitions also, as the arguments in the writ appeals and in the writ petitions were going to be the same. Therefore by consent of both the parties, the writ petitions were directed to be posted along with these appeals. Accordingly W.P Nos. 1063 to 10687 of 1993, 10999 of 1993, 11557 of 1993 and 21082 of 1992 are also posted along with W.A Nos. 1032 of 1993 and 1039 to 1064 of 1993. We have heard all these writ petitions and writ appeals.

2.1 In the light of several contentions urged on both sides, the points that arise for consideration are as follows:—

(1) Whether the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 apply to the appellant college, viz., Jawahar Science College.

(2) Whether the resolution dated 4.6.1993 passed by the University Syndicate is valid in law?

(3) Whether the appointments made by Jawahar Science College by way of direct recruitment of Lecturers take effect only on the approval of the same by the Syndicate of the University of Madras or as per the terms of appointment order.

(4) Whether the petitioners in W.P Nos. 10663 to 10687 are entitled to be regularised.

Point No. 1.

3. Jawahar Science College is an unaided private college. It has been established after the coming into force of the Tamil Nadu Private Colleges (Regulation) Act, 1976 (hereinafter referred to as the Act) which came into force on 21st November, 1975. It has been started with the permission of the State Government accorded under G.O.Ms No. 873, Education, dated 24.6.1986 Several conditions are imposed for permitting to open the college. Some of the conditions are:— that the private unaided college would be under the control of the Director of Collegiate Education and periodical review and inspection of the colleges will be taken up by the Department of Collegiate Education that the staff requirement in respect of their number, qualifications, etc., shall conform to the rules and regulations issued by the Government and the University concerned from time to time.

4. The contention of the learned counsel for the college is that as the permission does not refer to the provisions of the Act, it cannot be deemed to have been granted under the provisions of the Act, hence the college cannot be considered to be a private college. In order to decide whether the Jawahar Science College, which is an unaided Private College, is a Private College within the meaning of that expression as defined in the Act, we have to only look to the relevant provisions of the Act. The object of the Act is to provide for the regulation of private colleges in the State of Tamil Nadu. The expression ‘private college’ is defined in clause (8) of Section 2 of the Act, which reads thus:

“(8) ‘private college’ means a college maintained by an educational agency and approved by, or affiliated to, a university but does not include a college-

(a) established or administered or maintained by the Central Government or the Government or any local authority or any university; or

(b) giving, providing or imparting religious instruction alone, but not any other instructions”.

The expression ‘educational agency’ has been defined in clause (4) of Section 2 as follows:—

“4 ‘educational Agency, in relation to-

(a) any minority college, means any person who, or body of persons which, has established and is administering or proposes to establish and administer such minority college; and

(b) any other private college, means any person or body of persons permitted or deemed to be permitted under this Act to establish and maintain such other private college”.

A reading of the above two provisions makes it clear that whether a private college is an aided or an unaided college; whether it came into existence either before or after the date when the Act came into force makes no difference as long as it is a college which is maintained by an educational agency and approved by or affiliated to a university and permitted or deemed to be permitted under the Act it has to be held that it is a Private College falling within the scope of the Act. It is not disputed before us that the college in question is managed and maintained by an educational agency known as Jawahar Education Society consisting of body of persons. It is this society which is permitted to open the college. It is approved by, and affiliated to, the University of Madras. Thus, the private college in question satisfies all the conditions specified in the definition of the expressions ‘private college’ and “educational agency” under Section 2(8) and 2(4) respectively of the Act. The Act is passed regulating the private colleges in the State of Tamil Nadu providing permission for establishment and management of private colleges; constitution of college committee; appointment of Special Officer in certain cases; terms and conditions of service of teachers and other persons employed in private colleges; control of private colleges; accounts, audit, inspection and returns; general provisions regarding appeal and revision; penalties and procedure and other miscellaneous matters. The executive power of the State Government to that extent gets circumscribed and it has to exercise its power only in conformity with the provisions of the Act and the Rules framed thereunder. Section 3 of the Act provides that no person shall, without the permission of the Government and except in accordance with the terms and conditions specified in such permission, establish, on or after the date of commencement of the Act, any private college, provided that it shall also be necessary to obtain affiliation of such college to a university. Section 4 provides for the form of application and statement to be sent for the purpose of granting permission. Section 5 deals with the grant of permission. Section 6 covers the private colleges which were in existence on the date when the Act came into force and says that permission to such colleges is deemed to have been granted.

Therefore the contention of the learned counsel that the permission granted to the college under G.O Ms. No. 873 Edn. dated 24.6.1986 does not refer to the provisions of the Act and as such the permission cannot at all be held to have been granted as per the provisions of the Act, is not tenable. Whether the order of the State Government granting permission to start a new private college refers to the particular provision(s) of the Act or not, when such a power can only be exercised by the State Government under Ss. 3 and 5 of the Act, the competency of the State Government to pass such an order is traceable to Ss. 3 and 5 only, irrespective of the fact whether the said sections 3 and 5 are mentioned in the order granting permission or not. Therefore, we are of the view that the college in question is a private college governed by the Act. It may be relevant to notice that the College itself has proceeded on the basis that it is governed by the Act. It has constituted the college committee as per Section 11 of the Act, which provides for the constitution of college committee. In addition, even in the appointment order issued by the college it is specifically stated that the same is in conformity with and is subject to the provisions of the Rules framed under the Act, known as the Tamil Nadu Private Colleges (Regulation) Rules, 1976, hereinafter referred to as the Rules. Therefore, we have no doubt in our mind that the Act in question governs all the private colleges permitted or deemed to be permitted under the Act whether aided or not, which have been established and maintained by an educational agency and approved by or affiliated to the University and which do not fall within the meaning of sub-clauses (a) and (b) of clause (8) of Section 2 of the Act. It is not even the case of the college that it falls under Sub-clauses (a) and (b) of clause (8) of Section 2 of the Act. Therefore, we hold that the Jawahar Science College is a private college within the meaning and the definition, of that expression as contained in clause (8) of Section 2 of the Act and as such it is governed by the provisions of the Act. Point No. 1 is answered accordingly.

Point No. 2:

5. The Jawahar Science College, after selecting certain Lecturers appointed them. As per the conditions of affiliation, appointments are required to be approved by the Syndicate of the University, as provided in Statute 27 of Chapter XXVI of the Laws of the University of Madras, which reads thus:

“27. Appointments to the teaching staff of a college shall be made only after the Principal has been given an opportunity of expressing his views.

All appointments shall be reported to the Syndicate which shall satisfy itself that they meet the requirements of the University”.

Thus under this provision, the Syndicate has been asked to accord approval to the appointments made by the college. The resolution dated 4.6.1993 passed by the Syndicate reads thus:

“The management/Secretary to Jawahar Science College, Neyveli, be informed that the recruitment of Teachers Presently made is not approved and that all the teachers who have been recruited earlier and who have the requisite qualifications as per rules” prevailing at that time of their appointment, be regularised and reported to the University for approval before they consider the recruitment of fresh set of teachers”.

We may point out here that the University is not a selecting authority. The authority of the Unviersity is only to ensure that the selection of the Lecturers is made in accordance with the rules governing the selection and appointment, the candidates selected are eligible according to the qualifications prescribed by the University. In other words the syndicate has to satisfy itself that the appointments meet the requirements of the University. The power to select rests with the college committee, as constituted under Section 11 of the Act. In fact, Section 14(b) specifically provides that subject to the provisions of the Act and the rules made thereunder, the college committee shall have the power to appoint teachers and other persons of the private college, fix their pay and allowances and define their duties and the conditions of their service. Therefore, the Syndicate was required to examine in the aforesaid manner the appointments forwarded to it by the college for approval. Whereas the resolution of the Syndicate does not disclose any of these aspects. Thus the resolution of the Syndicate refusing approval cannot be held to be in accordance with the aforesaid Statute 27. Learned counsel appearing for the University fairly submitted that the University itself has already stayed the operation of the resolution of the Syndicate and the University will take action in accordance with the directions that may be issued by this Court. As the Syndicate has not considered the appointments in the manner it is required to consider and has not given any reason relevant to the issue, the resolution is not valid in law and as such it is liable to be quashed. Point No. 2 is answered accordingly.

Point No. 3

6. Statute No. 27 of Chapter XXVI of the Laws of the University of Madras has already been extracted while dealing with point No. 2. It specifically states that all appointments shall be reported to the Syndicate, which shall satisfy itself that they meet the requirements, of the University. Therefore, the Statute does not say that the appointments are to be made with the prior approval of the Syndicate of the University. The statute does not even use the word ‘approval’. It only provides that the Syndicate shall satisfy itself that the appointments meet the requirements of the University. Thus, the appointments made by a private college will continue to be operative until the Syndicate states or declares that the appointment do not satisfy the requirements of the University. Thus the appointments are only subject to the approval but not the prior approval of the Syndicate. Therefore, the appointments will become operative as per the terms of the order of appointment and will remain in force until the same are disapproved by the Syndicate. In this connection, it is relevant to notice a Full Bench decision of the High Court of Allahabad in SHAKIR HUSAIN v. CHANDOO (A.I.R 1931 All. 576). The words ‘approval’ and ‘permission’ came up for interpretation in that case and it was held thus:—

“Ordinarily the difference between the approval and permission is that in the first the act holds good until disapproved, while in the other case it does not become effective until permission is obtained”.

Therefore, it is clear that the appointments made by a private college will become effective as per the terms contained in the order of appointment, and in the event those appointments are not approved by the Syndicate of the University, they cease to be effective from the date they are disapproved. It, therefore, follows that the appointments of 26 Lecturers, inclusive of 6 temporary Lecturers, became effective from the date the appointments were made and they are entitled to function and continue to hold the posts till such time there appointments are disapproved by the Syndicate. Point No. 3 is answered accordingly. However, we make it clear that this will not enable the college committee to select and appoint a lecturer contrary to the Rules of recruitment and the qualifications prescribed for the post and also to violate the reservations if any.

Point No. 4

7. According to the petitioners in the writ petitions, they have been working as temporary lecturers for several years since 1986 and they claim that they are entitled to be regularised. After appointing the Lecturers on selection, the college has terminated their services. They have gone in appeal to the Commissioner for Collegiate Education under Section 20 of the Act. The appeals are pending before the appellate authority, viz., Commissioner, Collegiate Education. They have filed the present writ petitions on the ground that the appellate authority has expressed the view that the appeals are not maintainable as the Act does not apply to the college in question; that the college is not permitting them to function as Lecturers. The petitioners have sought for a direction to the concerned authorities to regularise their services. We are of the view that as the Act provides for an appeal to the Commissioner for Collegiate Education and a further appeal to the Tribunal against the order of the first appellate authority, it would not be just and proper for this Court to exercise the jurisdiction under Art. 226 of the Constitution of India, by-passing the statutory remedies and to determine the question as to whether the services of the writ petitioners are entitled to be regularised or not. The question of regularisation would depend upon several facts and also the law governing the subject. The interest of the petitioners is very well safeguarded as the Act provides two appeals. In the event they are not able to secure the relief from the two appellate forums, it would then be open to them to approach this Court under Article 226 of the Constitution of India. Therefore, we do not consider it necessary to go into this question.

8. A contention is urged that these petitioners are without service even though they have worked for several years as Lecturers, as the college has all of a sudden discontinued their services, therefore, it is not at all possible for them to get on without the sevice. In this regard, the college is very fair, as it is submitted by the learned counsel for the college that the college will pay the salary that was being paid to them on the date of the order of termination, during the pendency of the appeal before the appellate authority. It is also submitted on behalf of the college that these petitioners can receive the salary and they need not work, because their presence in the college is likely to embarrass the administration. We do not want to express anything on this last submission. However, it is sufficient to place on record the undertaking given on behalf of the college that these petitioners would be paid the salary which was being paid to them on the date the order of termination was passed against each one of them during the pendency of the appeals before the first appellate authority, viz., Commissioner, Collegiate Education. They can go to the college only for receiving salary and on all other days they need not attend the college.

9. It is contended on behalf of the petitioners that there are certain serious allegations made against the appellate authority in the affidavit filed before this Court, therefore the petitioners apprehend that in the background of these allegations the appellate authority may not be able to decide the matter dispassionately. It is not necessary to go into this question in this appeal, because it is submitted by the learned Government Pleader that there is a Joint Director of Collegiate Education, who is also equal to the Commissioner of Collegiate Education, and he may be directed to decide the appeals. In view of the fact that there is an alternative authority to decide the appeals, we refrain from expressing anything on the allegations made against the Director of Collegiate Education. The appeals filed by the petitioners are to be directed to be heard by the Joint Director of Collegiate Education. All the contentions urged on behalf of the writ petitioners regarding the validity of the termination of their services and regularisation of their services are left open to be urged before the appellate authority. This order shall not be construed as their contentions in the appeals preferred before the appellate authority. Point No. 4 is answered on the above terms.

10. The writ appeals and the writ petitions are disposed of in the following terms:

1. The order dated 3.9.1993 passed by the learned single Judge is set aside.

2. The Jawahar Science College is declared as a Private College falling within the meaning of the Act and it is governed by the Act.

3. The resolution dated 4.6.1993 passed by the University Syndicate refusing to approve the appointments is quashed. The Syndicate is directed to reconsider the appointments forwarded for approval in the light of the observations made in this order and in accordance with law.

4. The appointments of 26 Lecturers made by the Jawahar Science College will continue to be operative and continue to hold good unless they are disapproved by the Syndicate of the University.

5. All the appeals before the Director of Collegiate Education, now known as Commissioner of Collegiate Education filed by the petitioners (temporary lecturers) in the writ petitions shall be transferred by him to the Joint Director of Collegiate Education, who, on receipt of the same, shall issue notices to the appellants and respondents, if any, hear them and decide the appeals in accordance with law within a period of three months from the date of receipt of the papers from the Commissioner of Collegiate Education.

10. There will be no order as costs in these writ appeals and writ petitions.

RR/VCS